Two associations representing assisted living operators in the Sunshine State notched a win against the state Department of Elder Affairs Thursday afternoon when an administrative law judge said that 14 rule provisions introduced by the department in April were “invalid exercises of delegated legislative authority.”
The Florida Senior Living Association called the judge’s order “a significant victory,” and the Florida Assisted Living Association called it “a good step.” The organizations had challenged the changes to Rule 58A-5 of the Florida Administrative Code in May, and hearings were held June 1 and 4.
“This ruling is a victory for sensible and reasonable regulations for assisted living providers throughout the state,” Gail Matillo, FSLA president and CEO, and Susan Anderson, vice president of public policy and legal affairs for the association, told McKnight’s Senior Living. FSLA is the state affiliate of Argentum.
In April, the Department of Elder Affairs had said the rule “address[es] the safety and quality of services and care provided to residents within assisted living facilities while being mindful of unnecessary increases in regulation given the many variations in services provided, the number of residents or size or the facility, and the makeup or resident populations in the facilities.”
FALA, however, maintained that the rule would increase costs for assisted living communities in the Sunshine State, whereas FSLA said it was beyond the authority granted the department by the legislature.
Some of the provisions invalidated by Judge Robert Meale, according to FSLA:
- Some amendments to a resident health assessment form.
- In communities offering limited nursing services, a requirement to supervise or ensure consistent and safe provision of nursing services by third parties.
- A requirement to be generally aware at all times of the location of residents at high risk of elopement.
- A requirement that healthcare providers, instead of facility staff members, assess a resident’s elopement risk.
- A requirement that unscheduled service needs be met promptly instead of “in a reasonable timeframe.”
- A proposed rule that would have required hand-washing by staff members after every resident contact.
- A proposed rule that would have required assisted living communities to acquire and maintain copies of the records of third-party nursing service providers.
The department has 30 days to appeal. Otherwise, the provisions will be voided on Sept. 29.
Thursday’s order wasn’t a complete victory for the associations. The judge dismissed their challenges to three amendments related to medication practices, staff training and staffing standards. See the ruling for additional information.
“Not all of the challenges to respective rules were upheld, but this ruling is a good step in curtailing the department/agency’s authority in promulgating burdensome regulation,” the FALA said in a message to members.