Assisted living facilities ask state to slow down, work with stakeholders on new emergency rules

Florida assisted living facilities (ALF) are raising questions about new emergency management regulations being proposed by state health care regulators.

The Agency for Health Care Administration (AHCA) held an hourlong workshop on Tuesday with ALF providers, local emergency management officials and others who flagged their concerns with the proposed regulations.

The proposals have to do with comprehensive emergency management and emergency environmental control plans that are linked to a 2020 law.

Florida Senior Living Association (FSLA) Vice President of Public Policy Jason Hand is calling the proposed regulations for comprehensive emergency management plans, or CEMPs, “voluminous.” He is asking for the state “press pause” on the rulemaking process or “have multiple workshops where all of us could look at this together.”

“I totally get that doing this the right way is hard work,” Hand said. “But I think if we all sit down together to work on it we can do it.”

Hand was not alone in asking for the state to work more closely with affected parties on the rules. Lake County Deputy Director of the Office of Emergency Management Nicholas Gerth suggested that the state participate in an emergency management work group that is meeting and having similar discussions.

“It would be very valuable,” Gerth argued.

AHCA senior management analyst Jeremy Roberts told Gerth that AHCA could not participate in the work group, but that the state would accept recommendations the group developed.

But at the end of the meeting — and after hearing widespread concerns from most participants — Roberts said the agency “will be hosting another workshop, clearly.”

Roberts also agreed to extend by two weeks the time frame for the public to comment on the proposed rules. AHCA initially was going to accept public comments until Dec. 6, but Roberts said the agency will accept written comments on the proposal until Dec. 20.

“That way, we can do an in-depth review,” Roberts said.

There are about 3,020 licensed ALFs in Florida that together offer 113,789 beds to adults who cannot or choose not to live independently. In addition to housing, ALFs provide meals, and one or more personal services to one or more adults who are not relatives of the owner or administrator.

Comprehensive emergency management plans provide an understanding of the fundamentals of risk-informed planning and decision-making. They help officials produce integrated, coordinated and synchronized plans to threats.

The Legislature in 2020 tried to eliminate a regulatory snag ALFs were experiencing. While Florida law at the time required ALFs to have locally approved CEMP plans prior to getting licensed by the state, some jurisdictions refused to review any ALF’s plans until the state had already licensed the facility.

Lawmakers agreed to change the law to allow ALFs to be licensed without a previously approved comprehensive emergency management plan, but required the ALFs to get their CEMPs approved within 30 days of licensure. The 2020 law also required ALFs to notify AHCA within 30 days of getting approval of their plans.

AHCA first announced in 2020 it would update its rules, to reflect the new statutes. It published notice of an extension in March 2021, saying it needed additional time to seek public input. AHCA then published another notice of extension in March 2022.

A rules workshop was held in September, according to a state website. AHCA announced a second workshop for Oct. 11, but that was canceled after Hurricane Ian smashed into Southwest Florida. The October workshop was rescheduled for Nov. 29.

Meanwhile, at Tuesday’s workshop, FSLA’s Hand said he was “concerned” that the changes AHCA is proposing for the licensed ALFs would require a statement of estimated regulatory costs, or a SERC. He predicted that the SERC would show that the proposed rules would increase the industry’s operating costs by more than $200,000 annually in the aggregate or $1 million over a five-year period.

Any regulation that increases the costs of doing business by that amount must be approved by the Legislature before it is implemented.

“And that means none of these changes would be effective,” Hand said.

To underscore his point, Hand noted that the proposed rules require ALFs to resubmit for approval any CEMP that has been significantly modified. The rule goes on to define significant modification as “a change to a previously approved plan that is not a change correcting spelling or grammar, or a change in the name, address, telephone number, email address, or position of staff listed in the plan.”

The rules also require that the CEMPs be annually reviewed and submitted for approval.

Hand said he was worried that the rules are a “little unwieldy,” and could turn the CEMP into “more of a hornbook than an actual resource.”