FSLA Wins Rule Challenge Victory for Assisted Living Providers

On August 30, 2018, Florida Senior Living Association (FSLA) received the final order from the Division of Administrative Hearings on its challenge to many of the rules for assisted living community operations found in Rule 58A-5, Florida Administrative Code. The administrative law judge determined 13 separate rule provisions were invalid.

In challenging the rules, FSLA determined it was necessary to address both newly enacted provisions and long existing provisions of the rule chapter, including the AHCA 1823 Health Assessment form. The detrimental effects of these rules on the operations of assisted living communities and the overall move to more institutional type regulations could not be ignored.

The following is a brief overview of the rules invalidated by the order. Keep in mind that the existing rules do not become void and unenforceable until the time for filing an appeal expires which is September 29, 2018. If the state appeals the decision, then the rules remain in effect until the appellate case is decided. If the state does not appeal, then the invalidated rules or portion of the rules will not be enforceable by AHCA. The Department of Elder Affairs must initiate a formal rulemaking process to “clean up” and revise the rules to conform to the judge’s ruling. We will keep you informed of any developments.

Download a sample of the AHCA 1823 form and rules showing the invalidated sections.

Summary of Rules Declared Invalid

 

Rule 58A- Subject Portion Invalid Challenger
5.0181(2) AHCA Form 1823 Section 1. Elopement Risk question – invalid as not part of a typical medical examination conducted by a health care provider. A medical diagnosis of Alzheimer’s disease or a cognitive disorder is only one consideration in the overall

assessment of factors leading to elopement risk.

FSLA
Section 1.A. Activities of Daily Living – the activities of bathing, dressing, self-care (grooming), and toileting are invalid as not part of a typical medical examination

conducted by a health care provider.

FSLA
Section 1.C. Pose a danger to self or others question – invalid as lacking statutory authority. A conventional medical examination would include only limited psychiatric elements and would not provide a reasonable basis for the

health care provider to form an opinion.

FSLA
Section 1.D. Health care provider’s professional opinion as

to whether a prospect’s needs can be met in an ALF –

invalid as lacking statutory authority. Because of the lack

FSLA

 

Rule 58A- Subject Portion Invalid Challenger
of knowledge of the specific features of an ALF, health care providers lack the foundation to answer this question

intelligently.

Section 2-A. A., B., and C. Self-Care and General Oversight –

this entire section is invalid as not part of a typical medical examination conducted by a health care provider.

FSLA
Section 3. Services Offered or Arranged by the Facility for the Resident – this entire section is invalid as exceeding statutory authority. The state has no authority to require the ALF and the resident to agree upon the provision of services based on needs determined from the 1823 Form which is in addition to the contract between the ALF and the resident; further, these services are not criteria to determine the appropriateness for admission which is the

purpose of the form.

FSLA
Section 3. Signature of Resident or Authorized

Representative – invalid as exceeding statutory authority.

FSLA and

FALA

5.0131(41) Unscheduled Service Need Definition The requirement that ALFs meet unscheduled service needs promptly to ensure the health, safety, and welfare of residents is impermissibly vague. The definition fails to

clearly express exactly when and what is required of ALFs.

FSLA
5.0182(8)(a) Elopement Standards The requirement that all residents must be assessed for risk of elopement by a health care provider within 30 days of being admitted is arbitrary and invalid. An elopement risk assessment may be completed using various tools and does not required the expertise of a health care provider. Of the many predictive factors for elopement, only one, dementia, requires a medical diagnosis and the health care provider would have no direct knowledge of the other

predictive factors.

FSLA
5.0182(8)(a)1. Elopement Standards Requiring staff with Level I and Level II ADRD training to be generally aware of the location of residents assessed at high risk of elopement at all times is arbitrary, vague, and invalid. “High risk” is not defined, requiring general awareness introduces an unworkable level of ambiguity in meaning and proof, and a higher level of supervisory duty is imposed only on those staff persons that have had

certain training.

FSLA

 

Rule 58A- Subject Portion Invalid Challenger
5.031(2)(d) 3rd Party Services in LNS Licensed Facility Requiring the LNS nurse to coordinate with third party nurses to ensure care is provided in a safe and consistent manner – invalid as exceeding statutory authority. There is no statutory authority to draft a rule to guarantee

outcomes.

FSLA and FALA
5.024(1)(p)1.a.* Infection Control Policies and Procedures Requiring the sanitation of hands before and after each resident contact – arbitrary, without logic and invalid as exceeding statutory authority. This rule fails to define

contact with residents in a sensible and workable manner.

FSLA
5.024(3)* Records of 3rd Parties Requiring ALFs to obtain and maintain the records of third party nursing services– invalid as exceeding statutory authority. Resident records apply to services provided by

the ALF and not services provided by a third party.

FSLA and FALA

*Note: Rule changes to 58A-5.024 are proposed and not currently adopted; so, the infection control and third party records requirements are not currently in effect. The Department must revise these proposed rules in a formal rulemaking proceeding to conform to the final order.

 

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