Florida scraps proposed assisted living changes, to reboot effort

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Florida's Department of Elder Affairs has withdrawn a proposed rule that was challenged by Florida Argentum, which said the changes would have financially burdened assisted living operators and would have had several negative effects on residents and their families while not recognizing differences between assisted living and skilled nursing.

“Throughout the rule process, Florida Argentum worked with the state to provide feedback and identify concerns,” the organization's president and CEO, Gail Matillo, and vice president of public policy, Susan Anderson, said in a joint message via email to McKnight's Senior Living. “Our initial administrative court filing contained sufficient detail to alert the state to areas of impact for operators and seniors where we could not compromise, and because of our reputation of being collaborative and respectful, the state ultimately decided to withdraw the rule and start again. This will enable a more thorough review of our identified concerns.”

Aug. 3, Florida Argentum had filed the challenge to the rulemaking process related to HB 1001, which was passed in 2015. The rulemaking process was necessary before some of its provisions could go into effect. The state Department of Elder Affairs withdrew its proposal Thursday.

The organization had argued that the proposed changes would have prevented older adults from staying in their homes and aging in place (including in assisted living) if they had certain medical conditions; would have applied Medicaid requirements to all operators, regardless of whether their residents are enrolled in Medicaid; would have placed liability on operators for services provided by third parties such as home health providers; and would have created a contract for a plan of care between the resident and the assisted living facility when the department has no authority to do so and disregarding the rights of private parties to enter into or forego such action. (See this article for more details.)

Because the proposed rule has been withdrawn in its entirety, the rulemaking process must begin from the start, Florida Argentum said.

“Florida Argentum would like to see a thoughtful approach where consideration is given to the needs and wants of seniors in the coming decades,” Matillo and Anderson said. “Regulations need to allow sufficient flexibility for assisted living operators to be able to provide the products and services consumers will want. Consumers will continue to be offered innovative choices for housing and care options, and we need to make sure Florida's regulations do not unnecessarily restrict options or create excessive regulatory costs.”

The leaders said they expect the state to move “fairly quickly” on the next round of rulemaking and that a new rule may be ready by the end of the year.

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