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.

1. Steps the assisted living facility has taken to implement the detailed plan required by Emergency Rule 58AER17-1,
2. Specific circumstances beyond the facilities control that have prevented full implementation of the detailed plan within the 60 day time frame,
3. What arrangements have been made to pending full implementation of the detailed plan to ensure that residents of the ALF will not be exposed to temperatures above 80 degrees in the event of a power failure or loss of AC due to loss of power,
4. A delineation of the steps remaining for full implementation of the detailed plan and the ALF’s estimate of the time needed to fully implement 58AER17-1, and
5. All steps taken by the ALF to provided to the residents and family members or legal guardians that the ALF has applied for a variance or waiver from Emergency Rule 58AER17-1 and the steps the ALF is taking to comply with the Emergency Rule.

AHCA and DOEA have provided a link to an updated Q&A document with answers to questions received, a Frequently Asked Questions document regarding requests for a waiver or variance of portions of the rule, and a NEW County Emergency Management Agency Q&A document.

Links to the licensure web pages, as well as DOEA’s website, where these documents are maintained are also provided below. As responses are finalized to the questions and comments received they will be added to the web pages. Please review the pages frequently for updated information.

Read below for changes to Questions and Answers – The answers to the following questions were revised on 10/10/2017:

Question 4 : Will a mobile generator meet the requirements of the rule?
Answer : The rule does not restrict the type of generator required, but it must be installed and maintained at the facility. If the emergency generator used to meet the temperature requirements in the rule also supplies power for life safety and critical equipment, a level 1 generator must be used and the fuel supply and distribution equipment must be protected from debris impact as required by the Florida Building Code.

Question 5 : Can natural gas be used as a fuel source?
Answer : Yes . Piped natural gas is an allowable fuel source under the rule. The plan submitted for review should include fuel information.

Links to documents related to 58AER17-1

Assisted Living Facility Emergency Rule (58AER17-1)

Statutes and rules related to assisted living facilities can be found on AHCA’s Assisted Living Facility webpage or on DOEA’s homepage.

Rule Waiver/Variance FAQs

NEW County EM Q&As added 10/10/2017

Remember, assisted living facility emergency power plans must be submitted to the local emergency management agency and the Department of Elder Affairs at ALFEMP@elderaffairs.org.

You may submit additional questions or comments regarding the emergency rules to: ALFRuleComment@elderaffairs.org or BHFR@ahca.myflorida.com.

We will continue to send updates as they become available.

• Facilities are required to maintain temperatures at 80 degrees or cooler in a common area large enough to keep all of its residents comfortable for a minimum of 96 hours. This is an important clarification as opposed to the understanding that facilities have to maintain a temperature of 80 degrees in their entire building.
• Unfortunately, the deadline will not be extended for the implementation of this rule.
• No federal, state, or local requirements or permits will be waived.
• While piped-in fuel may be used as a secondary source, fuel sufficient to run the generator for at least 96 hours must be maintained on the premises.
• If your comprehensive emergency management plan requires your community to evacuate, you are still required to comply with the emergency rule by acquiring and installing emergency power and fuel source.
• All generators, regardless of type, must be installed and maintained on site.
• If your CEMP already meets the requirements, you still must submit your detailed written plan as stated in the rule for confirmation.

• The time-frame to implement the rule;
• The type and size of generators required;
• How much of community must be cooled at the required 80°F;
• Safely maintaining enough fuel on-site; permitting, code enforcement and zoning requirements; and
• Adding assisted living communities to be added to the priority list with power companies.

A Notice of Emergency Rule, 58AER17-1 Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, was filed today by the Department of Elder Affairs (DOEA) at the direction of Governor Scott. A similar emergency rule was filed by the Agency for Health Care Administration (AHCA) concerning nursing homes.

The emergency rule is effective as of today, September 16, 2017, and requires compliance with certain provisions within 45 days and 60 days. The emergency rule establishes a process by which assisted living facilities shall obtain, operate, and maintain generator(s) and fuel sufficient to maintain an air temperature of 80 degrees for 96 hours (4 days) after the loss of electric power.

We are working to obtain clarity on whether the 80 degree ambient air temperature must be maintained in the entire building, the common areas, resident rooms, or any combination thereof.

The following is a summary of the rule requirements for assisted living communities (ALFs):

1. Within 45 days (Tuesday, October 31 st), file a plan with DOEA and the local emergency management agency which includes:

• The plan to acquire a generator or generators sufficient to ensure the ambient temperature will be maintained at 80 degrees or below for 96 hours after loss of electric power.
• The plan to acquire fuel sufficient to run the generator(s) for 96 hours.

2. Within 60 days (Wednesday, November 15 th ), the plan must be implemented.

3. The local agency may deny the plan.

4. The ALF must revise and re-submit the plan within 10 days of the notice of denial.

5. The plans will be posted on the county’s website.

6. The ALF must submit proof of plan approval to AHCA and DOEA within 48 hours of the approval.

7. The State Fire Marshal will inspect within 15 days of installation.

8. The ALF must implement policies and procedures for operation and maintenance of the generator(s) and fuel.

9. The ALFs licensee may be revoked for failure to comply.

10. Violation of the rule shall result in a fine of $1000/day.

We will continue to keep you updated on any new developments.