Category: News

Florida Communities Receive J.D. Power Certification and Recognition

Florida Senior Living Association is proud to recognize three Five Star communities for receiving the J.D. Power Senior Living Certification.

The three Florida communities include Five Star Premier Residences of Hollywood; Five Star Premier Residences of Boca Raton; and The Horizon Club in Deerfield Beach. Congratulations to all of the Staff at Five Star for their extraordinary quality, service, and attention to detail.

In 2018, member communities from Holiday Retirement and Capital Senior Living earned top honors from J. D. Power for having the most satisfied residents among the country’s largest senior living providers.

The J.D. Power Senior Living Certification program recognizes the contributions such communities have made in improving the quality of life for both older adults and family caregivers. It also recognizes the need to provide those same consumers with valuable information to make an informed decision when choosing a senior living community.

Read the entire story here.

Ashley Lodi joins MedBest as Senior Executive Recruiter

Tampa, Florida-MedBest, Senior Living Executive Search Firm, is pleased to announce that Ashley Lodi, a former Executive Director at a multi-site senior living organization, has joined the company as a Senior Executive Recruiter.  In her new role, Lodi is a vital link between MedBest clients and job candidates.

“Ashley is very well-known and respected in the senior living industry. She has a great rapport with people and can connect with them on both a professional and personal level,” said Julie Rupenski, President & Founder of MedBest. “Ashley’s industry expertise and leadership will add even more value to our strong MedBest team.”

Lodi began her career in Senior Living in 2004 as an Administer-in-Training and has progressed through the industry, successfully building winning teams and developing the talents of others. She has an excellent reputation for always helping others grow their careers. Her accomplishments include a nomination for the 2017 FSLA Executive Director of the Year Award; national credentialing as a Certified Director of Assisted Living by the Senior Living Certification Commission; and serving as an active member of Argentum’s Workforce Ambassador Committee.

 

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.

 

Regulatory Update

There are several important regulatory deadlines coming up soon for our industry; please make sure you are planning for the following:

(1) Quarterly progress reports for implementation of generators
At this time, all assisted living providers either should have implemented an approved Emergency Power Plan or have been granted the initial extension by AHCA to January 1, 2019.  If you are fully implemented – congratulations! If you were granted the extension, make sure you file your quarterly status reports.  Download the AHCA form

(2) Sales tax refunds for generators
If you paid or will pay Florida sales tax for the purchase of a generator, you will be eligible for a sales tax refund from the Florida Department of Revenue.  The sales refund is an amount up to $15,000 per generator per community.

  • For equipment purchased between July 1, 2017 and March 22, 2018, a refund application must be submitted no later than September 23, 2018.
  • For equipment purchased between March 23, 2018 and December 31, 2018, the refund application must be submitted within six months after the date of purchase.

Download the application, an affidavit, and the Department of Revenue Emergency Rule.

(3) Variance or Waiver request
October 2 is the last day to file for a variance or waiver from the generator rule to extend your implementation date past January 1, 2019.  If you know you will need to extend or may need to extend past January 1, 2019, you should file your petition for a variance on or before October 2.  The state has 90 days to review a petition for a variance or waiver, so if you file on October 2, the state has until December 31 to either grant or deny the request. The review may take longer if the filed petition is deemed incomplete. The emergency environmental control rule, Rule 58A-5.036(4), F.A.C., states:

“If an assisted living facility can show in its quarterly progress reports that unavoidable delays caused by necessary construction, delivery of ordered equipment, zoning or other regulatory approval processes will occur beyond the initial extension date, the assisted living facility may request a waiver pursuant to section 120.542, F.S.”.

The petition for variance or waiver must be filed with the Department of Elder Affairs, not AHCA. Make sure to include the licensees’ name and license number on the filing.  Petitions must be filed by email or regular mail with the Department and a copy to the Joint Administrative procedures Committee at:

Agency Clerk                                                                       Joint Administrative Procedures Committee
Office of the General Counsel                                  111 W. Madison Street
Florida Department of Elder Affairs                     680 Pepper Building
4040 Esplanade Way, Ste. 315                                 Tallahassee, FL 32399-1400
Tallahassee, FL 32399-7000                                     joint.admin.procedures@leg.state.fl.us 
agencyclerk@elderaffairs.org

Please review section 120.542, F.S. and Rule 28-104, F.A.C., for more information on petitions for variance or waiver. Although the filing of a petition for variance or waiver does not require an attorney, it is a legal process so please consider whether to involve your legal counsel.

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.

HRA Director of Hospitality Wins FSLA Conference Culinary Competition

At its 2018 Senior Living Conference in Ft. Lauderdale, the FSLA hosted its first ever culinary competition, and the participants brought the heat! Out of six chefs, Anthony Polito of Harbor Retirement Associates (HRA) was crowned the winner and took the trophy back to the new HarborChase of Dr. Phillips in Orlando, where he serves as the Director of Hospitality.

Each competitor drew a course out of a hat with two appetizers, two desserts or two entree courses available. The competition also had a 30-minute time limit. Polito drew a dessert course and created the first-place winning “Deconstructed Bananas Foster.”

Chris Thompson, HRA’s Vice President of Hospitality remarked on Anthony’s skills of speed, agility, creative thinking and culinary genius, and noted Polito is  a tremendous example of the dedicated

emphasis that HRA has on hospitality at each one of its communities.

Based on the popularity of the competition, there’s an excellent chance it will be back at the 2019 Senior Living Conference – stay tuned!

Sen. Grimsley Receives Legislator of the Year Award

The FSLA was honored to present Senator Denise Grimsley (R-Lake Placid) with our Legislator of the Year Award at the 2018 Senior Living Conference. For more than a decade, Senator Grimsley has been a dedicated public servant and has brought her expertise in health care to the Florida House and Senate.

Her experience as a medical professional helped champion the huge AHCA regulatory overhaul bill which went into effect on July 1. Senate Bill 622 helps clean up several provisions related to assisted living and provides AHCA with the necessary tools to crack down on unscrupulous entities operating assisted living communities without a license.

FSLA and our members appreciate Senator Grimsley’s support during her time in office and we look forward to her service continuing as she runs for Florida’s Commissioner of Agriculture.

 

FL Dept. of Health Offers Influenza Information, Education

From the Florida Department of Health, Division of Disease Control & Health Protection:
Influenza activity levels are high across both the state and the nation. Florida is currently experiencing a moderately severe influenza season. Emergency department and urgent care center visits for adults aged 65 years and older for influenza-like illness increased steeply in recent weeks and large numbers of influenza outbreaks in long-term care facilities (LTCF) have continued to be reported to the Florida Department of Health. So far this season, 77 outbreaks in facilities serving adults aged 65 years and older (such as LTCFs and skilled nursing facilities) have been reported. More outbreaks have been reported this season than in previous seasons at this time, with the majority (71%) being reported in facilities serving adults aged 65 years and older, such as nursing homes and assisted living facilities. Unfortunately, in many of these outbreaks, vaccination rates were low in staff and residents.
As human immune defenses grow weaker with age, adults aged 65 and older are at greater risk for serious complications from influenza infection, including hospitalization and death. While influenza seasons vary in severity from season to season, adults aged 65 and older often experience the greatest burden in severe disease.
The national Advisory Committee on Immunization Practices (ACIP) recommends that all individuals six months of age or older receive the flu vaccine each year. The Department urges all Long Term Care Facility Administrators and Directors to actively identify, recommend and offer flu vaccines to all residents, staff, and health care personnel who have not yet received their 2017-18 flu vaccinations. Some facilities have also found success in offering vaccine to family members and promoting vaccination on visit days.
The Centers for Disease Control and Prevention (CDC) recommends early treatment (even prior to laboratory confirmation of influenza) with antiviral medications for treatment and prevention of influenza, as an adjunct to vaccination. The Department recommends long term care facilities stock antivirals in­ house for easy access (cdc.gov/flu/professionals/antivirals/summary-clinicians.htm). The CDC also distributed a Health Advisory Notification stressing the importance of rapid and early antiviral treatment this season. Clinicians should not wait for laboratory confirmation to administer antivirals for suspect influenza.
Please ensure flu outbreaks are managed in accordance with current recommendations from the ACIP and CDC. Conduct daily surveillance for influenza-like illness  among all residents, staff, and visitors to LTCFs until the end of the influenza season. If you suspect an outbreak of influenza or influenza-like illness (two or more residents with influenza-like illness), please immediately implement outbreak control measures and contact your county health department. Chapter 640-3, Florida Administrative Code, requires reporting of outbreaks to your county health department. More information about influenza for LTCFs can be found at: http://www.cdc.govlflu/professionais/infectioncontroi/ltc-facility-guidance.htm and on the CDC Guidance for Influenza Outbreak Management fact sheet.

Nursing Home and Assisted Living Facility Associations Support Governor Scott’s Proposal that all Facilities have Emergency Generators

January 23, 2018: Governor Rick Scott announced today that the Florida Health Care Association, Florida Senior Living Association, LeadingAge Florida and the Florida Assisted Living Association have agreed to support the Governor’s rule to have emergency generators to power their air conditioning units during emergencies. These associations, which represent thousands of nursing homes and assisted living facilities (ALFs) in Florida, have worked with the Agency for Health Care Administration (AHCA) and the Department of Elder Affairs (DOEA) through the rulemaking process and have agreed to drop their challenges against the agencies and work with their members to have emergency generators. Hundreds of nursing homes and ALFs in Florida have already agreed to follow the Governor’s rule and are working to install the necessary equipment. While the rule challenges against the currently proposed nursing home and assisted living facility generator rules have been dropped by all parties, these rules are still awaiting ratification by the Florida Legislature. The legislature must ratify these rules during the current legislative session.

Governor Scott said, “Following the tragic loss of life at the Hollywood Hills Rehabilitation Center last year, I immediately ordered our state agencies to require each nursing home and ALF in Florida to have emergency generators to keep their residents safe during a disaster. My goal throughout this process was to ensure that every facility in Florida can provide a safe environment for its residents. These rules accomplish this important goal by having generators and fuel supply resources at every nursing home and ALF in Florida.This is a big win for our state and makes Florida one of the first states in the nation to require emergency generators at nursing homes and ALFs. The bottom line is that we fought for residents and they will be safer because of these rules. I look forward to the legislature ratifying these life-saving rules.”

AHCA Secretary Justin Senior said, “We have put together a rule that we believe can help save lives. Nursing homes and assisted living facilities are homes for some of Florida’s most vulnerable populations, and these rules are vital to ensuring patient safety. We are glad that the hard work of Governor Scott and stakeholders will establish standards that will keep Florida’s vulnerable populations safe.”

DOEA Secretary Bragg said, “When Florida families make the decision to place their loved ones in long-term care facilities, they expect that they will be safe and well cared for at all times. Since September, our Department has been working to ensure the safety and welfare of Floridians in assisted living facilities during periods of prolonged power outage. We are glad that all parties were able to come together and create procedures that will ensure protection for these populations.”

Florida Health Care Association Executive Director Emmett Reed said, “The health and well-being of our state’s frail elders is our members’ number one priority. Our association has worked with Governor Scott, AHCA and DOEA since September on how our members can implement these important life-saving rules. We are glad that all stakeholders were able to come to the table, work together and agree to lasting policy that will keep residents and patients safe in Florida.”

Gail Matillo, President of the Florida Senior Living Association said, “Throughout this process, we have remained supportive of the Governor’s original intent – to ensure vulnerable Floridians are kept safe during emergency situations. We believe these rules will benefit both Florida seniors and the communities invested in providing them with quality living environments.”

Shad Haston, Chief Executive Officer of Florida Assisted Living Association said, “Our assisted living facilities are implanted in communities all over the state and ensuring resident safety has been a key issue since the storm this fall. Governor Scott was able to bring key stakeholders together, and work through the rules ensuring that facilities large and small will be able to implement them.”

Steve Bahmer, President and CEO of LeadingAge Florida said, “Ensuring the safety of Florida’s seniors has always been the primary goal of LeadingAge Florida and our members, and we appreciated the Governor’s leadership on this as Hurricane Irma moved through our state. The state has stayed in close contact with our association during the course of this process, and we support the implementation of these rules to ensure that Florida’s seniors are safe.”

With this agreement AHCA and DOEA have filed notice of change to the permanent nursing home and assisted living facility generator rules. The notice of change can be foundhere for nursing homes and here for assisted living facilities.

Update: Florida’s Emergency Generator Rules

In September 2017, Florida Governor Rick Scott issued emergency rules requiring all nursing homes and assisted living facilities (ALFs) to install generators capable of powering air conditioning systems for 96 hours within 60 days, and required facilities to maintain sufficient fuel to run the generators for 96 hours onsite. Facilities that were unable to meet this deadline could be subject to $1,000 per day fines and possible license revocation. The overwhelming consensus by industry experts was that it would be impossible for the majority of ALFs to obtain and install generators and fuel storage tanks in compliance with the emergency rule by the stated deadline.

Within two weeks, Florida Argentum – now the Florida Senior Living Association (FSLA) – challenged the emergency rule to protect ALFs from unreasonable enforcement action. The chief concern was a lack of sufficient time to safely and responsibly work toward installation of back-up generators and fuel storage systems. The association, backed by its national counterpart, was successful and an administrative law judge ruled the emergency rules were invalid, noting that a preventable tragedy at one facility did not create an industry-wide emergency that required such immediate action. Despite his ruling, the state maintains the rules are in effect while it appeals the order.

Because of the resulting confusion and uncertainty, most facilities rushed to request additional time to comply, although a number of facility operators have indicated that the resulting 180-day extension is still insufficient as generator production and installation times continue to increase due to already high demand by facilities in Southeast Texas and Puerto Rico. For facilities without an approved variance, the state has threatened to impose fines of $1,000 per day and possible license revocation.

Additionally, the state is working to make the requirements of the emergency rules permanent through the rulemaking process. It estimates the costs of compliance could range from $14,000 to $550,000 per facility, resulting in a collective total cost of approximately $280 million for the state’s assisted living facilities.

The proposed rule, along with a companion rule applicable to nursing homes, has been heavily criticized by both the senior living industry and local emergency management officials responsible for reviewing emergency power plans. Concerns include the failure to define the amount of space within each facility that must be cooled in the event of power loss; the lack of specificity as to fuel storage requirements; the failure to account for facilities with plans to evacuate versus sheltering in place; the lack of statutory authority for local emergency management agencies to review emergency power plans required under the new rules; and insufficient time for compliance.

Provisions of the proposed rules also differ from requirements under the emergency rule, creating a moving target for eventual compliance. At a rule hearing in December, industry members, including the Florida Senior Living Association, again expressed frustration that the state was not listening to their concerns.

The Florida Legislature’s Joint Administrative Procedures Committee (JAPC) cited significant issues with the proposed rules and sent the state a letter requesting legal justification for requiring emergency power plans in addition to the comprehensive emergency management plans currently required by statute. JAPC also asked the state to explain what authority allows state agencies to direct activities of the State Fire Marshal and noted the proposed rules appear to give the state’s Agency for Health Care Administration too much discretion to impose penalties for non-compliance.

Despite the many criticisms leveled at the proposed rules, the state refused to make any changes to the rule language and indicated the rules would be filed for adoption before the end of 2017, after which they would need to be approved by the state legislature because of the enormous estimated regulatory cost for the industry prior to becoming effective.

To prevent adoption of the proposed rules, FSLA filed a rule challenge on behalf of its members on December 15, 2017, raising the same concerns previously voiced to the state and its agencies. Should FSLA again prevail in its challenge, the state will be required to withdraw the proposed rule. In the interim, the state has renewed the emergency rule, but it remains to be seen whether adverse action will be taken against non-compliant facilities while both the emergency rule and proposed rules are actively being challenged.

Given the high level of interest in this issue and the fact that several legislative proposals have been filed to address emergency power requirements for senior living facilities, it is likely that the Florida Legislature will weigh in during the legislative session. The FSLA is currently working with legislators to help ensure adoption of reasonable standards that can be implemented responsibly to protect Florida’s seniors, which means emergency generator requirements will probably not be finalized before the end of the legislative session on March 9. FSLA will keep our members posted!