Category: Regulatory

DOEA Approves Process for Additional Extension of Generator Implementation

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 ( or, send an email referencing the case number and petition file date to

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 or 850-708-4971 if you have any questions.

DOEA Publishes Supplement Rule 58AER17-2

Yesterday,  the Department of Elder Affairs (DOEA) filed rule 58AER17-2 Variances from Emergency Rule 58AER17-1 – Procedures Regarding Emergency Environmental Control for Assisted Living Facilities.
In explanation of the rule, DOEA stated, “58AER17-2 is a supplement to the Emergency Rule and outlines the rule variance process where, under extreme circumstances beyond a facility’s control, a facility can request more time to comply with this life-saving rule (58AER17-1) per Florida law” According to 58AER17-2, each variance request must contain the following:
  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.
DOEA also states that it will consider each request and the reasonable efforts undertaken by the assisted living facility to provide the protections required by the Emergency Rule. Administrative action or sanctions for non-compliance with the Emergency Rule will be evaluated based upon the information submitted by the ALF in conjunction with any variance request under existing law (see section 120.542, Florida Statues).
NOTE: This rule does not repeal or modify the requirements of the Emergency Rule.
A notice issued yesterday by the Agency for Health Care Administration (AHCA) stated that on October 11, 2017, “Governor Rick Scott directed AHCA and the Department of Elder Affairs (DOEA) to begin the full rulemaking process to make the emergency power plan rule permanent. Again this variance process is already defined in Florida law and does not change the emergency rule that was issued on September 16 th in any way. AHCA will continue to aggressively enforce this emergency rule to keep patients safe.”
Click here for a copy of the notice of emergency rule.

Updated Q&A Regarding 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

You may submit additional questions or comments regarding the emergency rules to: or

We will continue to send updates as they become available.

Request for Temporary Injunction Against Emergency Rule

Yesterday evening, we filed a petition with the First District Court of Appeal (DCA) to ask for a temporary injunction against the Governor’s Emergency Rule, 58AER17-1. This action is coordinated with our filing at the Division of Administrative Hearings to challenge the rule itself. Download a copy of the petition here. Download a copy of the petition here.
If granted, this petition would stop the current implementation of the rule, providing relief from the looming deadline of Nov. 15to have generators and fuel tanks installed. Our greatest concern is that this deadline will either force rushed — and potentially unsafe — solutions or will put an unimaginable financial burden on communities as they work toward compliance while being fined $1,000 per day past Nov. 15.
The safety of the residents and staff at our member communities remains our top priority, and we will continue advocating on behalf our members throughout this process.

Emergency Rule Q&A Update

This evening, AHCA and DOEA provided an updated to the Q&A document originally issued September 21st. They also created an FAQ document regarding Petitions for Variance or Waiver of an Agency Rule. These documents can be found on AHCA’s Assisted Living Facility webpage under Notices/Updates.
While we support the Governor’s objective to provide generators for emergency power in all ALFs, we believe the complexity involved requires more time than the emergency ruleallows. Florida Argentum members have determined that the best path forward is to file a rule challenge to invalidate the rule rather than having each community file a variance or waiver from the rule. The rule challenge is scheduled for hearing on October 12th & 13th with an expected final order on or before October 30th.
In the meantime, you should continue efforts to comply with the emergency rule, document any obstacles that you encounter in the process, and consider all of your options. Please continue to send your comments, questions, and concerns to DOEA and AHCA by email to or
We will continue to send updates as they become available.

Challenge to Emergency Rule Files

On September 16, Governor Rick Scott directed the Florida Agency for Health Care Administration (AHCA) and the Florida Department of Elder Affairs (DOEA) to issue anemergency rule requiring assisted living communities and nursing homes to obtain emergency generator power and fuel to support and sustain operations for at least 96 hours following a power loss, and to accomplish this within 60 days.
Our association has been working closely with the Governor’s office, AHCA, DOEA, our members and experts in the industry to address the complex logistical and safety issues in the emergency rule, particularly those related to the 60-day deadline for compliance. Unfortunately, we were unable to negotiate any extensions in the timeline with the Governor and his agencies; therefore, today we have filed a challenge to the rule with the Florida Division of Administrative Hearings and will file one with the Florida District Court of Appeal on Monday.
This is not an issue about whether we believe certain measures are necessary to better protect residents. The senior living industry as a whole believes strongly in creating safe environments, including a requirement that every assisted living community have a generator to ensure the safety or its residents, during a natural disaster or other emergency situation. However, we believe the inadequate time presented to comply with the emergency rule presents potential safety hazards and is not in the best interests of residents residing in assisted living communities across the state of Florida.
Our association and its members remain committed to supporting the governor’s intentions, but to carry out his directive safely and effectively, additional clarity is needed and the timeline must be extended.

Emergency Rule Q&A

Most of you have probably heard about the Governor’s emergency rule requiring emergency generator power at assisted living facilities throughout the state. We understand many of you have questions, and we have reached out to the Governor and his agencies for clarification. We spoke with regulatory staff from the Agency for Health Care Administration and the Department of Elder Affairs and they provided clarification on a number of our questions. Specifically:
  • 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.
A copy of the agencies’ Q&A is available here. We still support the Governor’s objective to protect Florida’s vulnerable population and we will continue to seek clarification on the implementation of this rule on behalf of our members.
Please continue to send your comments, questions, and concerns to DOEA and AHCA by email to or

Emergency Rule Update

We applaud Governor Scott and his staff for their efforts to keep seniors safe during Hurricane Irma. We also thank Justin Senior, Secretary, AHCA, Molly McKinstry, Deputy Secretary and their entire team for their extraordinary service and volunteer efforts.
We would also like to congratulate every assisted living provider who worked diligently 24/7 to keep more than 99,000 residents safe during the hurricane. Everyone did an outstanding job and we are proud to represent you at the state level.
As the Governor has stated many times, Florida will continue to protect seniors, maintain their trust and the trust of their loved ones, and our ALF providers will continue to provide the best care and services to keep them safe.
We have partnered with AHCA, DOEA, DEP, DOH, the Governor’s staff, and other stakeholders to obtain clarification and possible changes to the recently released emergency rule. Clarifications needed in the rule include:
  • 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.
AHCA and DOEA are accepting comments, questions, and concerns regarding this rule and should have answers to our concerns within the next day or two. If you would like to voice your concerns, please submit your questions to 
We will continue to keep you updated on any new developments.

Summary of Emergency Rule

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.