Appeals Court Strikes Down Emergency Stay in Generator Case

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Florida’s First District Court of Appeal issued a response to Florida Argentum’s motion filed last week and determined that an “automatic stay” of the Division of Administrative Hearings’ Final Order invalidating Emergency Rule 58AER17-1 does not exist during the appeal. This means that the Emergency Rule is invalid and is not in effect as of October 27, 2017, the date the Final Order was issued. The Agency for Health Care Administration (AHCA) and the Department of Elder Affairs (DOEA) cannot legally enforce compliance with the Emergency Rule.

While this provides short-term relief from the threat of fines and facility closure for no-compliance, owners and operators should keep in mind that there will be proposed rules and proposed legislation that will address the need for generators during power outages. Both AHCA and DOEA will officially be filing proposed rules for emergency generator power tomorrow.

A hearing will be held on the new proposed rule on December 5.  This rulemaking procedure is different from the emergency rule process, as the (to be) proposed rule will not be in effect until interested parties have had an opportunity to participate in the process.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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