Florida Agencies Reissue Emergency Generator Rules Pending Ratification of Permanent Rules by the Florida Legislature

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The Agency for Health Care Administration and the Department of Elder Affairs have reissued Emergency Rules 59AER17-1 "Nursing Home Emergency Power Plan" and 58AER17-1 "Procedures Regarding Emergency Environmental Control for ALFs" (collectively, the “Emergency Generator Rules”) pending the ratification of the proposed permanent generator rules. The Emergency Generator Rules were previously adopted on September 16, 2017. On November 14, 2017, each agency published a Notice of Proposed Rule to adopt permanent rules to establish processes to ensure that licensees of nursing homes and assisted living facilities develop and implement plans that ensure ambient air temperatures will be maintained at or below 81 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of primary electrical power to such facilities to ensure the health, safety, comfort, and welfare of residents of nursing homes. On December 8, 2017, the Proposed Rules were submitted to the Legislature and are awaiting ratification pursuant to Section 120.541(3), Florida Statutes.

Two trade associations have filed separate challenges to the Proposed Rules with the Division of Administrative Hearings. The cases have been consolidated (Case No. 17-6832RP) and a three-day hearing has been scheduled for January 17, 19, and 24, 2018. Administrative Law Judge Garnett Chisenhall has been assigned to preside over the hearing. Chisenhall was the administrative law judge who issued a Final Order declaring the Emergency Generator Rules invalid (Case No. 17-5388RE). The agencies have appealed that ruling to the Florida First District Court of Appeals, which is still pending at this time.

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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