Florida Senior Living Association Announces Success in Rule Challenge Case

The Florida Senior Living Association (FSLA) today announced a significant win after receiving the ruling from the Division of Administrative Hearings on its challenge to recently enacted rules for assisted living community operations found in Rule 58A-5, Florida Administrative Code. The administrative law judge determined 14 separate rule provisions were invalid.

“This ruling is a victory for sensible and reasonable regulations for assisted living providers throughout the state,” said Gail Matillo, President and CEO of the association, and Susan Anderson, Vice President of Public Policy and Legal Affairs for the association.

“In a typical rule challenge case, the judge is only reviewing the validity of a single agency rule; today’s ruling is significant because of the number of rules invalidated,” said Amy Schrader, of Counsel with Baker, Donelson, Bearman, Caldwell & Berkowitz, PC. “This favorable outcome in such a complex case was possible because of the extensive expert testimony by FSLA’s members and affiliates. Their high level of professionalism and knowledge were key in explaining the detrimental effects of these rules on the operations of assisted living facilities.”

The following is a brief overview of the rules invalidated by today’s order:

  • The elopement question on the AHCA 1823 Form was invalidated, as was the the ADLs of bathing, dressing, grooming and toileting; the question of considering the history of a resident’s aggressive behavior in determining the risk of danger to self or others; all of the self-care tasks (I-ADLs); and all of Section 3, which is the last page of the form requiring a listing of resident needs and services to be provided by the ALF and the resident’s signature accepting the services.
  • In LNS communities, the requirement to supervise or ensure consistent and safe provision of nursing services by third parties was invalidated.
  • The requirement to be generally aware at all times of the location of residents at high risk of elopement was invalidated.
  • The requirement that health care providers must assess a resident’s elopement risk instead of facility staff was invalidated.
  • The requirement to ensure that unscheduled service needs are met promptly instead of in a reasonable timeframe was invalidated.
  • A proposed rule that would require washing of hands after every resident contact was invalidated.
  • A proposed rule that would require the assisted living facility to acquire and maintain copies of records of third-party nursing service providers was invalidated.

The rules do not become void until the time for appeal expires, which is 30 days from today or September 29, 2018. A copy of the final order is available online.

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