Department of Elder Affairs Approves Process for Additional Extension of Generator Implementation Date Past January 1, 2019

Did you file a petition for variance from rule 58A-5.036, Emergency Environmental Control for Assisted Living Facilities, with the Department of Elder Affairs (DOEA) requesting approval of an implementation date past January 1, 2019?

Do you now have information that makes it unlikely that you will meet the new implementation date you requested in your petition or the date granted in your final order?

In response to member concerns, Florida Senior Living Association staff met with new DOEA Secretary Richard Prudom, General Counsel Francis Carbone, and other staff to discuss generator compliance issues. We expressed the need to determine a streamlined process for the communities that need to move the implementation date a second time. Two types of situations were identified and a process agreed upon as follows:

Scenario 1 – Petition filed and awaiting final adjudication (a final order):

The community can either submit a comment through the DOEA web portal (http://elderaffairs-apps.state.fl.us/alf-waivers/) or, send an email referencing the case number and petition file date to agencyclerk@elderaffairs.org.

The community needs to include:

1. The new compliance date desired;
2. The circumstances outside of the community’s control which dictates the need for a new date; and
3. If the community is requesting a date that is during the summer heat, the community must identify how they will respond appropriately to meet the resident comfort requirements of the rule.

Scenario 2 – Petition filed and final order issued, but new implementation date will not be met:

Submit a new petition that incorporates and adopts the original petition and that requests a new implementation date.

1. In the new petition, update the beginning paragraphs identifying the party submitting the petition if necessary, add a paragraph describing a brief history of the first petition (date filed, supplemental materials submitted, date final order granted with DOEA file number, date granted for final implementation).
2. Add a paragraph that incorporates and adopts the original petition, including all supplemental materials submitted, excepting any specific portion requesting a date for implementation that does not meet your current time estimations.
3. Request a new implementation date and support the request with the same type of information as in Scenario 1.
   1. The new compliance date desired;
   2. The circumstances outside of the community’s control which dictates the need for a new date; and
   3. The community is requesting a date that is during the summer heat, the community must identify how they will respond appropriately to meet the resident comfort requirements of the rule.
4. Make sure to include new supplemental information if necessary to support the new date requested, such as correspondence from your contractor.

These filings are meant to be simplified since the filings are essentially based on the original petition.  If your implementation date is less than 90 days from the date that you become aware that you will not be able to meet that timeline, you should consider styling your petition as an emergency petition.

The DOEA must act on an emergency petition within 30 days. An “emergency” may be alleged with an explanation of an intervening event or new facts that have come to light since the date of the final order. For instance, a letter from a contractor dated after the final order that explains the need to move the time frame up even further.<

Please contact Susan Anderson, V.P. of Public Policy & Legal Affairs at sanderson@floridaseniorliving.org or 850-708-4971 if you have any questions.