Category: News

Florida Senior Living Association to Legislators: Change Price Gouging Statute to Include Essential Health Care Staffing Services

November 4, 2021 — The Florida Senior Living Association (FSLA) has sent a letter to the Florida Legislature, Governor Ron DeSantis, Attorney General Ashley Moody and Chief Financial Officer Jimmy Patronis asking for an important update to the Florida law that criminalizes price gouging of essential goods during a declared state of emergency.

During the 16-month declared state of emergency that began last March, senior living communities and other health care facilities saw the costs charged by temporary staffing agencies skyrocket. To protect their residents and other staff members, communities often had no other choice but to pay the exorbitant rates to cover critical shifts.

“While the health and long-term care workforce is an obvious essential service during a pandemic, it is apparent that Florida’s price gouging statutes were not written with COVID-19 in mind. Unfortunately, this law may inadvertently fail to consider the anti-competitive practices currently running rampant throughout the temporary health care staffing industry,” wrote FSLA President & CEO Gail Matillo.

Florida law prohibits the renting or selling of essential commodities at unconscionable prices upon a declaration of a state of emergency by the Governor. Although a change in the statute will not retroactively address the concern raised by Florida Senior Living, the organization believes the request is important to prohibit anti-competitive behaviors that could arise during the next declared state of emergency.

For this reason, FSLA is also imploring lawmakers to examine the current recruitment and pricing practices being used by temporary staffing agencies and enact policies to discourage such agencies from taking advantage of the long-term and health care industries at a time when the industries have no other short-term options to seek remedies for staffing shortages.

“Staffing agencies are holding the entire health care industry hostage,” added Matillo, noting that while the behavior began at the start of the pandemic, it has continued and has only worsened. A copy of the letter is available at: https://bit.ly/3od3Kzx.

Advisory – ALFs Should Prepare for COVID-19 Mitigation Efforts

Tallahassee, Fla. — “COVID-19 is coming, and it’s not a matter of if, but when,” is the message Florida Senior Living Association (FSLA) conveyed to its membership during a member-wide conference call earlier today.

“Senior living communities are taking the COVID-19 virus very seriously and paying close attention as the virus progresses through our state,” said Gail Matillo, FSLA President/CEO. “Executive directors and staff should communicate their plans, prepare for worst-case scenarios, anticipate problems and consider next steps.”

FSLA member communities have excellent infection control policies and procedures in place to protect residents and staff from the flu and other contagious diseases. However, with the COVID-19 virus, seniors and those with compromised immune systems are unfortunately most at risk. The good news is that senior living communities are a secure and healthy place to live and staff are doing everything they can keep their communities safe and sound.

The association encouraged communities to cancel off-campus activities and keep residents from traveling out of the community as much as possible. It also suggested helping residents communicate with family members using Skype, text and phone instead of in-person visits.

Yesterday, Florida Governor Ron DeSantis issued an executive order detailing prohibitions on visits to nursing homes and assisted living facilities, particularly for people who may have tested positive for COVID-19 or who reside in a community with confirmed community spread of COVID-19, as identified by the Centers for Disease Control and Prevention or a state public health agency.

FSLA is working with the Florida Division of Emergency Management, the Florida Agency for Health Care Administration and the Florida Department of Health to help ensure caregivers have adequate supplies and receive priority testing, if necessary.

The association would also like to thank the following organizations for developing and sharing their guidance and toolkits:

Brookdale Senior Living has developed a toolkit with materials useful for senior living communities: https://www.brookdalenews.com/brookdale-covid-19-toolkit.htm

Argentum has provided resources, links and suggested best practices for a thoughtful approach to coronavirus preparation and response in senior living communities: https://www.argentum.org/coronavirustoolkit/

The American Health Care Association and the National Center for Assisted Living (AHCA/NCAL) has updated guidance for assisted living communities, including recommendations on limiting entry, restricting group activities and setting up remote communication processes: https://www.ahcancal.org/facility_operations/disaster_planning/Documents/AL-Guidance-Preventing-COVID19.pdf

Florida Health Care Association has developed a facility visitor screening toolkit for long term care centers that encompasses the most current Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control (CDC) guidelines: https://www.fhca.org/images/uploads/pdf/FHCACOVIDVisitorScreeningToolkit.pdf

Release: FL Senior Living Association Applauds Passage of ALF Modernization Bill

Tallahassee, Fla. – The Florida Senior Living Association (FSLA) today thanked the Florida Legislature for unanimously passing HB 767, which modernizes regulations for assisted living communities in Florida. The bill allows residents of assisted living and memory care communities to use assistive devices to help keep them mobile and independent. The legislation was sponsored in the House by Representative Michael Grant (R-75) and in the Senate by Senator Gayle Harrell (R-25).

“We are so grateful to our bill sponsors for their leadership on this issue,” said Gail Matillo, the President/CEO of FSLA. “Whenever we can modernize regulations to make communities safer, not only for residents but also for the health care workers, we’ve made excellent progress for our industry and our state.”

Assistive devices include wearables, transfer aids, shoe inserts, telehealth technologies, arthritis supports, and other devices that can be added and removed by the resident. Many assisted living residents often use assistive devices for years in their own homes but are forced to give them up upon entering long-term care facilities, causing not only their risk of injury to increase, but also the risk to their caregivers who may be injured while catching a falling patient or helping a resident who has already fallen and cannot get up without assistance.

“FSLA is proud to have had the opportunity to work with Representative Grant, Senator Harrell, and other senior living stakeholder groups on this important legislation,” said Jason Hand, the Vice President of Public Policy and Legal Affairs of FSLA.

The legislation, which now goes to Florida Governor Ron DeSantis for his signature, modernizes the current regulatory structure to provide safer environments for residents and community health care workers.

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.