18-002212RP Florida Senior Living Association, Inc. vs. Department Of Elder Affairs Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, October 13, 2020.

Summary: Parts of these rules, including Form 1823, invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA SENIOR LIVING

ASSOCIATION, INC.,

Petitioner,

vs. Case No. 18 - 2212RP

DEPARTMENT OF ELDER AFFAIRS,

Respondent.

_______________________________/

FLORIDA ASSISTED LIVING

ASSOCIATION, INC.,

Petitioner,

vs. Case No. 18 - 2228RP

DEPARTMENT OF ELDER AFFAIRS,

Respondent.

_______________________________/

FLORIDA SENIOR LIVING

ASSOCIATION, INC.,

Petitioner,

vs. Case No. 18 - 2340RX

DEPARTMENT OF ELDER AFFAIRS,

Respondent.

_______________________________/

FINAL ORDER

On June 1 and 4 , 2018 , Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH),

conducted the final hearing in Tallahassee, Florida.

APPEARANCES

For Petitioner Florida Senior Living Association, Inc. :

Amy W. Schrader, Esquire

Cody W. Short, Esquire

Baker Donelson

1 01 North Monroe Street, Suite 925

Tallahassee, Florida 32301

For Petitioner Florida Assisting Living Associati on, Inc. :

J ohn F. Gilroy , III , Esquire

John F. Gilroy , III , P.A.

Post Office Box 14227

Tallahassee, Florida 32317

For Respondent Department of Elder Affairs:

Jeanne Bisnette Curtin, Esquire

Francis A. Carbone, II , Esquire

Department of Elder Affairs

4040 Esplanade Way

Tallahassee, Florida 32399 - 7000

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE S

The issues are whether proposed Florida Administrativ e Code

Rule 58A - 5.024(1)(p)1.a., a proposed amendment to Florida

Administrative Code Rule 58A - 5.024(3)(c) , and, as recently

amended or created, Florid a Administrative Code Rules

58A - 5.0131(41), 58A - 5.0181(2)(b) (amending AHCA 1 Form 1823

(Form 1823) ) , 58A - 5.0182(8)(a) and (8)(a)1., 58A - 5.018 5(3)(g),

58A - 5.0 191(3)(a), and 58A - 5.031(2)(d) 2 are invalid exercises of

delegated legislative authority , pursuant to section 120.52(8),

Florida Statutes , on the gro unds set forth in the Joint

Pre - hearing Stipulation filed on Ma y 30, 2018 (Prehearing

Stipulation ) or such other grounds that were tried by consent .

PRELIMINARY STATEMENT

By Notice of Proposed Rule published on March 3, 2018,

Respondent proposed amendments to 11 rules: rules 58A - 5.0131,

58A - 5.014, 58A - 5.0181, 58A - 5.0182, 58A - 5.0185, 58A - 5.019,

58A - 5.0191, 58A - 5.02 4, 58A - 5.029, 58A - 5.030 and 58A - 5.031. These

rules apply to assisted living facilities, which are referred to

as "facilities" or "ALFs." No one timely filed a petition

challenging any of these proposed amendmen ts.

By Notice of Change published on April 13, 2018, Responde nt

withdrew 12 words from a proposed amendment to rule 58A - 5.024. 3

Within the time allowed for challen g ing a proposed rule, two

petitions were filed, although neither challenged the deletion of

the 12 words. By Petition Seeking an Administrative

Determination of the Invalidity of Proposed Rule 58A - 5.024,

Florida Administrative Code, which was filed on May 2, 2018,

Petitioner Florida Senior Living Association, Inc. (FSLA)

commenced DO AH Case 18 - 2212RP , in which FSLA challenged

amendments to rule 58A - 5.024 . By Petition Challenging Validity

of Proposed Rule 58A - 5, F.A.C., which was filed on May 3, 2018,

Petitioner Florida Assisted Living Association, Inc . (FALA)

commenced DOAH Case 18 - 2228RP , in which FALA challenged certain

amendments to rules 58A - 5.0131, 58A - 5.0181, 58A - 5.0182,

58A - 5.0185, 58A - 5. 019, 58A - 5.0191, 58A - 5.024, and 58A - 5.031 .

A fter these petitions were filed, the Department of State

filed al l of the amendments , except those to r ule 58A - 5 .024 .

Immediately after the filing of the amendments , on May 10, 2018,

by Petition Seeking an Administrative Determination of the

Invalidity of Rules 58A - 5.01 31, 58A - 5.0181, 58A - 5.0182,

58A - 5.0185, 58A - 5.0191, and 58A - 5.031, FSLA comme nced DOAH Case

18 - 2340RX , in which FSLA challenged these existing rules, now as

amended.

By Orders entered May 14 and 15, 2018, the Administrative

Law Judge consolidated DOAH Cas es 18 - 2212RP, 18 - 2228RP, and

18 - 2340RX .

On May 14, 2018, Respo ndent filed a Motion to Dismiss.

Respondent argued that the p etitioners could not bootstrap a

challenge to the proposed amendments to r ule 58A - 5.024 by filing

petitions that were timely only as to the deletion of 12 words

from the proposed amendments to this rule. By Order entered on

May 18, 2018, relying in part on Florida Pulp and Paper

Association Environmental Affairs, Inc. v. Department of

Environmental Protection , 223 So. 3d 417 (Fla. 1st DCA 2017), the

Administrative Law Judge ruled against Respondent because

R espondent had published, for all of the proposed rules, a single

notice, rather than individual notices. The Administrative Law

Judge ruled that both p etitioners could challenge, as a proposed

rule, any of the amendments to rule 58A - 5.024 and FALA could

c hallenge, as proposed rules, any of the recent amendments to the

other rules.

Learning, a t hearing, that the Department of State had

already filed the amendments to a ll of the rules except

rule 58A - 5.024, without objection, the Administrative Law Judge

allowed FALA to amend its petition to challenge these rules as

existing, rather than proposed, rules .

On May 17, 2018, Respondent filed a Motion for Attorneys'

Fees Pursuant to Section 120.595(2) . The motion seeks an award

of attorneys' fees against each p etitioner. On May 23, 2018,

FSLA filed a response in opposition to the motion. On July 24,

2018, Respondent filed a memorandum in support of its earlier

request for reasonable attorneys' fees.

T he Prehearing St ipulation designates the disputed issues of

law and fact as follows :

1. Whether [p etitioners] will be or are

adversely affected 4 by the rules . . . .

2. Whether the rules . . . are inconsistent

with a homelike environment, and if so,

whether that could be the basis of a charge

of a violation by AHCA [Agency for Health

Care Administration] of Chapter 429. 5

* * * 6

4. Whether rule 58A - 5.0131(41) is

arbitrary, capricious, or vague . . . .

5 . Whether rule 58A - 5.0181(2)(b)

inco rporating AHCA Form 1823 7 exceeds

[Respondent]'s rulemaking authority or is

arbitrary and 8 capricious . . . .

6. Whether rule 58A - 5.0182(8)(a) is

arbitrary and capricious . . . .

7. Whether rule 58A - 5.0182(8)(a)1. is

arbitrary, capricious or vague . . . .

8. Whether rule 58A - 5.0185[3](g) is

arbitrary and capricious . . ..

9. Whether rule 58A - 5.0191(3)(a) is

arbitrary and capricious . . . .

10. Whether rule 58A - 5.024 exceeds

[Respondent]'s statutory authority, 9 modifies

the provisions of law implem ented, [or] is

arbitrary and capricious . . . .

11. Whether rule 58A - 5.031(2)(d) exceeds

[Respondent]'s statutory authority or is

arbitrary and capricious.

* * * 1 0

12. Whether proposed rule 58A - 5.0181(2)(b)

regarding signatures on resident assessment

forms [Forms 1823] is arbitrary or

capricious . . . .

* * * 1 1

13. Whether proposed rule 58A - 5.019(3)

modifying minimum staffing standards [ to

include day care participants ] is arbitrary

or capricious . . . .

In its proposed final order , FSL A argued that proposed

rule 58A - 5.024(1)(p)1.a. is vague and violates the one - subject

requirement. 1 2 The former ground was tried by consent, but the

latter ground was not , and the one - subject contention is

stricken because it was not preserved in the Prehearing

St ipulation . FSL A argued that rule 58A - 5.0182(8)(a) and (8)(a)1.

exceeds any grant of rulemaking authority, which wa s not tried by

consent and is stricken because it was not preserved in the

Prehearing Stipulation. FSLA argued that rule 58A 5.0182(8)(a)1.

is vague, which was tried by consent. FSL A argued that

rules 58A - 5.0185(3)(g) and 58A - 5.0191(3)(a) exceed any grant

of rulemaking author ity in their failing to set minimum

standards for infection contr ol policies (ICPs) for all ALFs,

which wa s tried by consent. Lastly, FSL A argued that

rules 58A - 5.0185(3)(g) and 58A - 5.0191(3)(a) are vague. These

issues were not tried by consent and are stricken because they

were not preserved in the Prehearing Stipulation .

In its proposed final o rder, FALA argued that

rule 58A - 5.013(2)(d) is vague and possibly that the rule

enlarges, modifies, or contravenes the law implemented. These

issues were not tried by consent and are stricken because they

were not preserv ed in the Prehearing Stipulation . FALA see ms to

have argued that rule 58A - 5.019(3) exceeds any grant of

rulemaking authority or enlarges, modifies, or contravenes the

law implemented. Neither of t hese issues w as tried by consent

and both are stricken because they were not preserved in the

Prehearing Stipulation . Lastly , FALA enlarged the thirteenth

issue by challenging rule 58A - 5.0131(12), which defines a "day

care participant." The nature o f the challenge to the definition

is unclear, but the issue was not tried by consent, so FALA's

challenge to rule 58A - 5.0131(12) is stricken because it was not

preserved in the Prehearing Stipulation.

At the hearing, the Administrative Law Judge took off icial

notice of pages 10 through 42 of the 1997 Documentary Guidelines

for Evaluation and Management Services, published by the Centers

for Medicare and Medi caid Services (CMS Documentary Guidelines). 1 3

As the Administrative Law Judge stated at the hearing, the

purpose of noticing the CMS Documentary Guidelines was to

incorporate into the record a description of the scope of a

medical examination.

At the hearing, FSLA called four witnesses and offered into

ev idence five exhibits: FSLA Exhibits 1 through 4 and 8.

FALA called one witness and offered into evidence five exhibits :

FALA Exhibits 1 through 5. Respondent called two witne sses and

offered into evidence 20 exhibits : Respondent Exhibits 1 through

7, 9 through 11, 14, and 16 through 24 . The parties offered into

evidence four joint Exhibits: Joint Exhibits 1 through 4. All

exhibits were admitted .

The court reporter fi led the transcript by July 9, 2018.

After obtaining two short extensions, t he parties filed proposed

final orders on July 24, 2018 .

FINDING S OF FACT

1. By "Notice of Proposed Rule" published on March 5, 2018,

Respondent proposed amendments to 11 rules : rules 58A - 5.0131,

58A - 5.014, 58A - 5.0181, 58A - 5.0 182, 58A - 5.0185, 58A - 5.019,

58A - 5.0191, 58A - 5.024 , 58A - 5.029, 58A - 5.030, and 58A - 5.031. For

rulemaking authority, Respondent cited sections 429.07, 429.17,

429.178, 429.24, 429.255, 429.256, 429.27, 429.275, 429.31,

429.41, 429.42, 429.44, 429.52, 429.54, and 429.929. For the law

i mplemented, Respondent cited sections 429.01 through 429.55 and

429.905 and chapter 2015 - 126, Laws of Florida. 1 4

2. The proposed amendments to r ule 58A - 5.024 state 15 :

The facility must maintain required records

in a manner that makes such records readily

available at the licenseeÓs physical address

for review by a legally authorized entity.

. . . For purposes of this section,

Ðreadily availableÑ means the ability to

immediately produce documents, records, or

other such data, either in electronic or

paper format, upon request. 1 6

(1) FACILITY RECORDS. Facility records

must include:

* * *

(p) The facility's infection control

policies and procedures.

1. The facility's infection control

policy must include:

a. A hand hygiene program which

includes sanitation of the hands through the

use of alcohol - based hand rubs or soap and

water before and after each resident

contact.

b. Use of gloves during each

resident contact where contact with blood,

potentially infectious materials, mucous

membranes, and non - intact skin could

occur.

c. The safe use of blood

glucometers to ensure finger stick devices

and glucometers are restricted to a single

resident. Lancets should be disposed in an

approved sharps container and never reused.

Glucometers should be cleaned and

disinfected after every use, per

manufacture r's instructions, to prevent

carr y - over of blood and infectious agents.

d. Medication practices including

adherence to standard precautions to prevent

the transmission of infections in a

residential setting.

e. Staff identification,

reporting, and prevention of pest

infestations such as bed bugs, lice, and

fleas.

* * *

(3) RESIDENT RECORDS. Resident records

must be maintained on the premises and

include:

* * *

(c) . . . Records of residents

receiving nursing services from a third

party must contain all orders for nursing

services, all nursing assessments, and all

nursing progress notes for services prov ided

by the third party nursing services

provider. Facilities that do not have such

documentation but that can demonstrate that

they have made a good faith effort to obtain

such documentation may not be cited for

violating this paragraph. A documented

request for such missing documentation made

by the facility administrator within the

previous 30 days will be considered a good

faith effort. The documented request must

include the name, title, and phone number of

the person to whom the request was made and

must be kept in the resident's file.

3. The challenge to rule 58A - 5.024(1)(p)1.a. is to the

unconditional requirement of hand sanitizing "before and after

each resident contact. " 17 Resident contact is unqualified , so the

chal lenged provision does not exclude casual or incidental

contact between a staff person and a resident . One of

Respondent's witnesses assured that Respondent do es not intend

for "each residential contact " to include casual contact by

staff, such as "high fives" during a bingo game or the brus hing

of shoulders in the hall, but t his assurance cannot displace the

unconditional language of the rule , as well as the fact that

enforcement of the rule is left to the Agency fo r Health Care

Adminis tration (AHCA) , not Respondent. 1 8 In its present form, the

rule requires hand san i tizing before exchanging "h igh fives" or,

somehow, even a pat on a staffperson's clothed shoulder initiated

by a resident , so as to disc ourage such casual contact.

Requiring hand sanitizing before and after each and every

resident contact will encompass many contacts for which hand

sanitizing will have no effect on the control of infections and

deter or abbreviate interactions between res idents and staff, who

would repeatedly be washing their hands during time that they

otherwise might spend with residents.

4. Generally, a hand hygiene program is neither capricious

nor arbitrary because it responds to a well - recognized means b y

which disease is transmitted ÏÏ human to human -- with sanitation as

a well - recognized means to interrupt this transmission process.

However, the proposed rule irrationally requires hand sanitation

before incidental residential contact that, by its nature, is

unpla nned, and after residential contact with another part of a

staffperson's body, such as an elbow or clothed back , rather than

the staffperson's hand , where hand washing would not have any

sanitizing effect. T he rule is also unsupported by logic or the

necessary facts .

5. On its face, rule 58A - 5.024(1)(p)1.a. is not vague: a

staffperson must sanitize her hands after every contact with a

resident and before every contact with a resident, even, somehow,

unplanned contacts that may be initiated by the r esident.

Respondent 's promise that AHCA will apply this proposed rule

reasonably -- i.e., the inspector will know a violation when she

sees one -- makes the point that, to be spared finding s of

capriciousness and arbitrariness, rule 58A - 5.024(1)(p)1.a. must

b e construed so as to fail to establish adequate standards for

agency decisions .

6. "Sanitary" means "of or relating to health[, as in]

sanitary measure." 1 9

7. The challenge to rule 58A - 5.024(3)( c) is to the

requirement that an ALF obtain and maintain the records of third

party providers of nursing services. This requirement is

supported by logic and the necessary facts and is not irrational.

Maintaining a set of these records at the residence o f an ALF

resident promotes resident welfare.

8. Applicable only to a facility that intends to offer

limited nursing services, rule 58A - 5.031 (2)(d) provides:

Facilities licensed to provide limited

nursing services must employ or contract

with a nurse(s) w ho must be available to

provide such services as needed by

residents. The facility's employed or

contracted nurse must coordinate with third

party nursing services providers to ensure

resident care is provide d in a safe and

consistent manner. The facilit y must

maintain documentation of the qualifications

of nurses providing limited nursing services

in the facility's personnel files.

9. Coordinating a facility's nursing services with the

nursing services of a third party to ensure that resident care is

provided in a safe and consistent manner is neither capricious

nor arbitrary. Resident welfare is served by a rule requiring

coordination between any nurse employed or contracting with a

facility and a provider of third party nursing services, so this

requirement is rationally related to res ident care and supported

by logic and the necessary facts.

10. "Coordination" means "the process of organizing people

or groups so that they work together properly and well." 2 0

"Quality assurance" means "a program for the systematic

monitoring and evaluation of the various aspects of a project,

service, or facility to ensure that standards of quality ar e

being met." "Ensure" means "to make sure, certain, or safe:

guarantee." 2 1

11. In addition to proposed rule 58A - 5.024(1)(p)1., t wo

rules pertain to a facility's infection control program (ICP).

Rule 58A - 5.0185(3)(g) provides: " All trained staff must adhere

to the facility's [ICP] and procedur es when assisting with the

self ÏÏ administration of medication. " Rule 58A - 5.0191(3)(a) adds :

Staff who provide direct care to residents

. . . must receive a minimu m of 1 hour in -

service training in infection control

including universal precautions and facility

sanitation procedures, before providing

personal care to residents. The facility

must use its [ICP] and procedures when

offering this training. . . .

12. Requiring the use of a facility's ICP in training or

when assisting with the self - administration of medication is

neither capricious nor arbitrary. These requirements are

supported by logic and the necessary facts and are rational.

13. Rule 58A - 5.0131( 41) provides:

An "Unscheduled Service Need" means a need

for a personal service, nursing service, or

mental health intervention that generally

cannot b e predicted in advance of the need

for the service , and that must be met

promptly to ensure within a time frame that

provides reasonable assurance that the

he alth , safety, and welfare of residents is

preserved.

14. On its face and based on its placement within a rule

devoted to definitions, rule 58 A - 5.0131(41) is a definition. If

so, a n "Unscheduled Servi ce Need" occurs: 1) when a need for a

covered service arises unexpectedly and 2) the need must be met

promptly to ensure the preservation of resident welfare. If the

rule is a definition, an amendment making the second condition

more rigorous would inure to the benefit of ALFs because fewer

situations would rise to the level of an Unscheduled Service

Need . For instance, there would be even fewer Unscheduled

Service Needs if the second condition stated, "and that must be

met promptly to save the life of a resident."

15. Two factors suggest that rule 58A - 5.0131(41) is not

merely a definition. A definition is normally incorporated in

another provision of law that creates rights or enforces duties.

However, "Unscheduled Service Need" occurs nowhere in the Florida

Statutes and nowhere else in the Florida Administrative Code.

"Unscheduled Service Need" might trigger action in a resident's

care plan, but few residents are required to have a care plan.

16. The parties have treated rule 58A - 5.0131(41) as thoug h

it were a definitional rule that enforces a duty. FALA has

challenged rule 58A - 5.0131(41) as though the initial condition --

the occurrence of an unexpected, covered need -- is the definition

and the duty is for the ALF to meet the need to ensure the

resident's welfare . Agreeing, Respondent stated in its proposed

final o rder: "A plain reading of the entire rule makes it clear

that the rule requires a facility to respond to an unscheduled

service need in a manner that does not delay addressing the

res idents' needs." 2 2 Although nearly all 2 3 of the other

subsections of rule 58A - 5.0131 seem to provide conventional

definitions, u nder the circumstances, this final order will

follow the parties' reading of this definitional rule , so as to

include the imposi tion of a duty on the ALF to take prompt action

to ensure the resident's welfare .

17. R ule 58A - 5.0131(41) is n either arbitrary nor

capricious. It is not irrational , illogical, or unsupported by

the facts to define an unscheduled service need in the manner set

forth in the rule and to require an ALF promptly to meet the need

to ensure that the welfare of the resident .

18. R ule 58A - 5.0131(41) is vague . On its face, it is a

merely definitional rule with two conditions , but, in reality , it

is a rule that enco mpasses a definition with but one condition

and an enforceable duty imposed upon an ALF. This fact, alone,

establishes vagueness.

19. Construed as a definition with a single condition and

an enforceable duty imposed on an ALF, rule 58A - 5.0131(41)

achieves greater vagueness. The condition , which is a condition

precedent, is invariably clear, but the enforceable duty is

conti ngent on a co ndition subsequent that is entirely independent

from the condition precedent: i.e., the duty of the ALF arises

only if its prompt discharge ensures the resident's welfare.

This means that, even though the condition precedent is

satisfied, the duty of the ALF is not imposed if prompt action is

not required to ensure the resident's welfare -- as in a minor

problem that does not jeopardize the resident's welfare -- or if

prompt action will not ensure the resident's welfare -- as in a

catastrophic event, such as a massive cardiovascular event, that

precludes the possibility of any action that would "ensure" the

resident's welfare. The fatal ambiguity arises because the

final 17 words of the rule announced, simultaneously, the

mandated action by the ALF and a condit ion precedent to the duty

to take this action.

20. Rule 58A - 5.019(3) requires that an ALF maintain a

specified number of minimum staff hours per week based on a

specified "Number of Residents, Day Care Participants, and

Respite Care Residents" in the fa cility. For instance, 6 to 15

such persons require a minimum of 212 staff hours weekly, and 16

to 25 such persons require a minimum of 253 staff hours weekly.

Unchallenged, rule 58A - 5.0131(12) defines "Day Care Participant"

as "an individual who receives services at a facility for less

than 24 hours per day."

21. The inclusion of "Day Care Participants" among the

persons on whom minimum staff hours are calculated is not

capricious or arbitrary . An ALF accepting Day Care Participants

has assumed responsibility for the care of these persons , and the

imposition of minimum staffing standards based on residents and

Day Care Facilities is supported by logic and the necessary facts

and is rational.

22. Rul e 58A - 5.0182(8)(a) and (8)(a)1. provides:

(a) Residents Assessed at Risk for

Elopement. All residents assessed at risk

for elopement or with any history of

elopement must be identified so staff can be

alerted to their needs for support and

supervision. All r e sidents must be assessed

for risk of elopement by a health care

provider or mental health care provider

within 30 calendar days of being admitted to

a facility. If the resident has had a

health assessment performed prior to

admission pursuant to Rul e 58A - 5.0181(2)(a),

F.A.C., this requirement is satisfied.

. . .

1. . . . Staff trained pursuant to

Rule 58A - 5.0191(10)(a) or (c), F.A.C., must

be generally aware of the location of all

residents assessed at high risk for

elopement at all times.

23. Rule 58A - 5.0191(10) applies to ALFs that advertise

that they provide special care for persons with Alzheimer's

Disease and Related Disorders (ADRD) or that maintain certain

secured areas (ADRD ALFs) ; the rule requires that ADRD ALFs

must ensure that their staff receive specialized training.

Rule 58A - 5.0191(10)(a) and (c) specifies the training for staff

who provide direct care to, or interact with, residents with

ADRD.

24. By addressing the training received by staff,

rather than whether the supervi sed residents suffer ADRD or

whether an ALF employing the staffperson is an ADRD ALF,

rule 58A - 5.0182(8)(a)1. imposes higher supervisory duties

strictly on the basis of the tr aining received, at some point ,

when the staffperson may have been employed by a n ADRD ALF.

Thus , the level of supervision at an ALF that is not an ADRF ALF

may vary from shift to shift and unit to unit, as the

staffpersons who, at some point, received the additional

training are distributed through the facility's workplace.

Perhaps it is not irrational to impose a higher supervisory duty

on more highly trained staffpersons, but, on these facts,

rule 58A - 5.0182(8)(a)1. is not supported by logic or the

necessary facts.

25. Rule 5 8A - 5. 0182(8)(a)1. is vague. A "h igh risk" of

elopement lacks meaning. As discussed below, in Form 18 23,

Respondent asks in a yes - or - no format the question of whether the

resident is an " elopement risk ," which seems to suggest an

elevated risk from the ge neral population. A "high risk" of

elopement seems to suggest an even more elevated risk, but the

rule provides no mea ns to determine the threshold, even though ,

with each elevation of risk from the general population, the

prescribed threshold becomes les s discernible.

26. Rule 58A - 5.0182(8)(a)1. is also vague because of the

phrase, "generally aware of the location" of all residents at

high risk of elopement. "Generally" means "in disregard of

specific instances and with regard to an overall picture

ge nerally speaking." 2 4 Treating "awareness" as synonymous with

"knowledge," it is difficult to understand what is meant by

general, not specific, knowledge of the location of a resident. 2 5

The troublesome qualifier modifies the knowledge of the staff

person, not the location of the resident, which raises an obvious

problem as to meaning, as well as proof. By inserting

"generally," the rule rejects "knowledge" or " specific knowledge "

in favor o f knowledge of "an overall picture generally speaking"

and introduces an unworkable level of ambiguity into the

requirement.

27. Rule 58A - 5.0182(8)(a) is not capricious. A rule

requiring a timely assessment of elopement risk by a health care

provider or mental health care provider 2 6 is not irrational ; such

an exercise is not utterly senseless . But a closer question is

whether this rule is supported by logic or the necessary facts.

28. A commonly used elopement risk tool , which was included

in the exhibits of FSLA and Respondent, assigns numerical values

on a scale of 0 to 4 to various resident behaviors or conditions.

The predictive utility of each behavior or condition is a

function of the value a ssigned to it: a 4 has the greate st

predictive value . The only behavior or condition assigned a 4 is

the resident's believing that he is late for work or needs to

pick up the children, thus creating an urgency to leave the ALF.

Four behaviors or conditions bear a 3: the resident's beco ming

lost outside of the facility, thus necessitating the intervention

of staff to return him to the ALF; emphatically proclaiming that

she is leaving the facility or saying that she is going

somewhere, coupled with an attempt to leave; suffering paranoia

or anxiety about where she is, disbelieving that she lives where

she lives, or attempting to leave the ALF; and repe atedly trying

to open the doors of the facility .

29. Ten 2 7 behaviors or conditions bear a 2: the resident's

having a diagnosis of dementia ; becoming confused outside of the

community; wandering, looking for an exit from the ALF, or

attempting to leave the ALF; getting up at night and leaving the

room; suffering from disorientation as to place without any

anxiety or effort to leave; dressing and presenting oneself in an

appropriate manner, but requiring staff supervision out side of

the building; ambulating , but unsafe outside without supervision;

using assistive devices, but unsafe outside without supervision;

presenting as unsafe when outside alone; and taking walks, but

requiring redirection to the entrance of the building or back to

the property.

30. Five behaviors or conditions bear a 1: the resident's

displaying evidence of early dementia; wandering at times, but

not expressing a desir e to leave the ALF or trying to leave the

ALF; verbalizing the desire to be elsewhere; suffering occasional

disorientation as to time and place, but reorienting easily; and

presenting a disheveled and disorganized appearance, so as not to

be confused for a visitor or staffperson.

31. Nine behaviors or conditions bear a 0: the resident's

having no diagnosis of dementia; having no history of elopement;

not wandering; not verbalizing a need to leave the ALF; slee p ing

all night or getting up occasionally and not leaving the room;

displaying orientation to time and place; dressing and presenting

self in an appropriate manner and not requiring staff supervision

outside of the building; ambulating or propelling self in

wheelcha ir safely; and presenting no o t h er b ehaviors associated

with memory impairment.

32. The elopement risk too l is completed by an ALF employee

who is neither a health care provider nor or a mental health care

provider. Of the 30 predictive factors, essentially only one,

involving dementia, require s a medical or psychia tric diagnosis .

It is, of course, not necessary to solicit from the health care

provider an elopement risk assessment in order to obtain her

opinion as to dementia. More importantly, o vershadowing the

dementia predictors to t he point of near elimination are high -

value predictors involving current behaviors, historic behaviors,

and, most importantly, the perceived need to leave the facility

to get to work or discharge domestic duties. Of these, the

health care provider would h ave no direct knowledge, so her

assessment of elopement risk would either be based on

insufficient information or hearsay whose precise accuracy would

be doubtful.

33. On these facts, the requirement in rule 58A - 5.0182

(8)(a) for a health care provider or mental health provider to

assess a resident's elopement risk is unsupported by logic and

the necessary facts.

34. Rule 58A - 5.0181(2)(b) incorporates Form 1823 , which is

divided into four sections. Sections 1, 2 - A, and 2 - B must be

completed by a licensed health care provider. Section 3 must be

completed by the ALF. The end of the form provides lines for the

signatures of the resident and ALF. Under the signature of the

resident, but not the ALF, the form states: "By signing this

form, I agree to the services identified above to be provided by

the [ALF] to meet identified needs."

35. Section 1 is a "Health Assessment" that elicits

information about allergies, medi cal history, height and weight,

physical or sensory limitations, cognitive or behavioral status,

nursing, treatment or therapy recommendations, special

precautions, and "elopement risk." For all items except

elopement risk, the form provides a block for c omments; for

elopement risk, the form provides only two boxes: one marked

"yes" and one marked "no."

36. Section 1.A asks: "To what extent does the individual

need supervision or assistance with the following?" Seven

activities of daily living (ADLs) a re listed: ambulation,

bathing, dressing, eating, self care (grooming), toileting, and

transferring. Boxes allow the health care provider to pick one

of four levels from independent to total care. The form also

provides a block for comments beside each ADL.

37. Section 1.B is: "Special Diet Restrictions." Four

boxes are listed: regular, calorie controlled, no added salt,

and low fat/low cholesterol. There are two lines for other

dietary restrictions.

38. Section 1.C asks: "Does the individual have any of the

following conditi ons/requirements? If yes, pleas e include an

explanation in t he comments column." Five items are listed:

communicable disease, bedridden, pressure sores other than

stage 1, "Pose a danger to self or others? (Consider any

sig nificant history of physically or sexually aggressive

behavior.)," and 24 hour nursing or psychiatric care. The form

provides a box for "yes/no" and a block for comments.

39. Section 1.D asks: "In your professional opinion, can

this individual's needs b e met in an [ALF], which is not a

medical, nursing, or psychiatric facility?" The form provides a

box for "yes" and a box for "no," as well as a line for

additional comments.

40. Section 2 - A is "Self - Care and General Oversight

Assessment." Section 2 - A.A is "Ability to perform Self - Care

Tasks" and lists five tasks: preparing meals, shopping, making

phone calls, handling personal affairs, handling financial

affairs, and other. Boxes allow the health care provider to

select one of three levels from indepe ndent to needs assistance.

The form also provides a block for comments beside each task.

Section 2 - A.B is "General Oversight" and lists three tasks:

"observing wellbeing," "observing whereabouts," "reminders for

important tasks, " and four spaces for "ot her." Boxes allow the

health care provider to select one of four levels: independent,

weekly, daily, and other. The form also provides a block for

comments beside ea ch task.

41. Section 2 - A.C is three lines for additional comments or

observations.

42. Section 2 - B is "Self - Care and General Oversight

Assessment -- Medications." Section 2 - B.A provides blocks for

listing individual medications, dosages, directions for use, and

route of administration. Section 2 - B.B asks: "Does the

individual need help wit h taking his or her medications (meds)?"

The form provides a box for "yes" and a box for "no" with a

direction, if yes is marked, to check one of the following three

boxes: able to administer without assistance, needs assistance

with self - administration, and needs medica tion administration.

Section 2 - B.C provides two lines for additional comments or

observations.

43. Immediately following Section 2 - B is a section that

requires identifying information about the health care provider

and the date of the examination.

44. Section 3 requires the ALF to identify the needs set

forth in Sections 1 and 2 and provide the following information

in blocks: identified needs, services needed, service frequency

and duration, service provider name, and initial date of service.

45. Form 1823 is mentioned in rule 58A - 5.0181(2)(b )

through (d) , which describes the required medical examination

based on when it takes p lace relative to admission or whether it

follows a placement by Respondent, Department of Children and

Fami lies (DCF) , or one of their private contractors. The rule

states:

(2) HEALTH ASSESSMENT. As part of the

admission criteria, an individual must

undergo a face - to - face medical examination

completed by a health care provider as

specified in either paragrap h (a) or (b) of

this subsection.

(a) A medical examination completed

within 60 calendar days before the

individualÓs admission to a facility

pursuant to section 429.26(4), F.S. The

examination must address the following:

1. The physical and m ental status of

the resident, including the identification

of any health - related problems and

functional limitations,

2. An evaluation of whether the

individual will require supervision or

assistance with the activities of daily

living,

3. Any nursing or therapy services

required by the individual,

* * *

7. A statement on the day of the

examination that, in the opinion of the

examining health care provider, the

individualÓs needs can be met in an assisted

living fa cility[.]

* * *

(b) A medical examination completed

after the residentÓs admission to the

facility within 30 calendar days of the

admission date. The examination must be

recorded on AHCA Form 1823, Resident Health

Assessment for Assisted Liv ing Facilities,

March 2017 October 2010 . . . . The form

must be completed as instructed.

1. Items on the form that have been

omitted by the health care provider during

the examination may be obtained by the

facility either orally or in writing fr om

the health care provider.

2. Omitted information must be

documented in the residentÓs record.

Information received orally must include the

name of the health care provider, the name

of the facility staff recording the

information, and the date the information

was provided.

3. Electronic documentation may be

used in place of completing the section on

AHCA Form 1823 referencing Services Offered

or Arranged by the Facility for the

Resident. The electronic documentation must

include all of the elements described in

this section of AHCA Form 1823.

(c) Any information required by

paragraph (a), that is not contained in the

medical examination report conducted before

the individualÓs admission to the facility

must be obtained by the administrator using

AHCA Form 1823 wi thin 30 days after

admission.

(d) Medical examinations of residents

placed by the department, by the Department

of Children and Families, or by an agency

under contract with either department must

be conducted within 30 days before placement

in the fa cility and recorded on AHCA Form

1823 described in paragraph (b).

46. For the same reasons that r ule 58A - 5.0182(8)(a) is

arbitrary, but not capricious, the yes - or - no question as to

elopement risk in section 1 is arbitrary, but not capricious.

47. The record lacks counterparts to the elopement

assessment tool for the remaining items under challenge from the

F orm 1823, so it is necessary to obtain from the CMS Documentary

Guidelines the scope of a typical medical examination to address

whether the challe nged items in the Form 1823 are supported by

logic and the necessary facts.

48. A medical examination may cover any of ten organ

systems or areas: cardiovascular; ears, nose, mouth, and throat;

eyes; genitourinary; hematologic/lymphatic/immunologic;

mu sculoskeletal; neurological; psychiatric; respiratory; and

skin. Each organ system or area comprises several elements.

Medical examinations may vary as to their scope. Between the two

types of general multi - system medical examinations that are not

focus ed on a particular problem, the less exhaustive examination,

which is "detailed , " typically requires an examination of at

least a dozen elements spanning two to six organ systems or

areas. If a multi - system medical examination includes a

psychiatric exami nation, the examination typically involves no

more than a "description of patient's judgment and insight" and

"brief assessment of mental status including: orientation to

time, place and person[;] recent and remote memory[; and] mood

and affect (eg, depre ssion, anxiety, agitation)[.]"

49. Even a full psychiatric examination encompasses only

the following elements:

Ʊ Description of speech including: rate;

volume; articulation; coherence; and

spontaneity with notation of abnormalities

(eg, perseveration , paucity of language)

Ʊ Description of thought processes

including: rate of thoughts; content of

thoughts (eg, l ogical vs. illogical,

ta ngential); abstract reasoning; and

computation

Ʊ Description of associations (eg, loose,

tangential, circumstantial, intact)

Ʊ Description of abnormal or psychotic

thoughts including: hallucinations;

delusions; preoccupation with violence;

homicidal or suicidal ideation; and

obsessions

Ʊ Description of the patient's judgment

(eg, concerning everyday activities and

so cial situations) and insight (eg,

concerning psychiatric condition)

Complete mental status examination including

Ʊ Orientation to time, place and person

Ʊ Recent and remote memory

Ʊ Attention span and concentration

Ʊ Language (eg, naming objects, repeating

phrases)

Ʊ Fund of knowledge (eg, awareness of

current events, past history, vocabulary)

Ʊ Mood and affect (eg, depression, anxiety,

agitation, hypomania, lability)

However, a full psychiatric examination would unlikely meet the

reasonable exp ectations of Respondent or ALFs of a medical

examination because it excludes consideration of any nearly all

other organ systems or areas.

50. The inquiry in Section 1.A about ADLs is not

capricious, but is arbitrary as to some items. The scope of a

typi cal medical examination will yield no information about a

patient's ability to bathe, dress, groom, or toilet. The scope

of a typical medical examination may yield some information about

a patient's ability to ambulate, eat (as to swallowing), and

transfe r between a bed, chair, wheelchair, scooter, and car, and

the health care provider should be able to rate the extent of the

ability of the patient to perform each of these ADLs. R equiring

the health care provider to rate the extent of the ability of the

p atient to perform any of the other ADLs is therefore not

supported by logic or the necessary facts.

51. The inquiry in Section 1.C about whether the patient

poses a danger to self or others and directive to consider any

significant history of physically or sexually aggressive behavior

is arbitrary, but not capricious. Although a psychiatric

examination would include a determination of whe ther the patient

suffers from homicidal or suicidal ideations, a psychiatric

examination is unlikely to take the place of a conventional

medical examination, whose inclusion of limited psychiatric

elements would not yield a reasonable basis for opining whe ther

the patient poses a danger to self or others. Nor does the

record suggest that the medical examinations of the type

conducted for the admission of the patient to an ALF are

conducted by psychiatrists, physician assistants specializing in

psychiatry, or advanced registered nurse practitioners

specializing in psychiatry. This finding necessitates the

invalidation of the directive to consider significant history of

physically or sexually aggressive behavior in responding to the

question -- a directive tha t is meaningless without the question of

whether the patient poses a danger to self or others .

52. The inquiry in Section 1.D about whether, in the

"professional opinion" of the health care provider, the patient's

needs can be met in an ALF that is not a medical, nursing, or

psychiatric facility is arbitrary, but not capricious. No ALF is

a medical facility, which likely means a hospital; nursing

facility, which likely means a skilled nursing facility; or

psychiatric facility, which likely means a psychia tric hospital.

The addition of this information, which is superfluous to anyone

who understands the nature of ALFs, reveals the concern of AHCA

or Respondent that the health care providers lack even this basic

knowledge of the nature of ALFs. Due, in fac t, to their lack of

knowledge of the specific features of an ALF, health care

providers lack the foundation to answer this question

intelligently.

53. The request in section 2 - A.A about the ability of

the patient to perform self - care tasks and the request in

section 2 - A.B about the need of the patient for general

oversight, are arbitrary, but not capricious , for the same

reasons as set forth concerning the ADLs of bathing, dressing,

grooming, and toileting .

54. Section 3 is neither arbitrary nor caprici ous. The

collection of needs identified in the preceding sections and

identification of services to meet these needs, as well as the

additional information, are not irrational and are supported by

logic and the necessary facts.

55. Due to section 3, t he requirement that the resident and

ALF sign the Form 1823 is neither arbitrary nor capricious. By

signing, the resident explicitly agrees to receive the identified

services, and the ALF implicitly agrees to provide the identified

services; so it is not irrational or unsupported by logic or the

necessary facts to require both parties to sign the Form 1823.

However, if sectio n 3 were invalidated, as it is below, the

requirement of the signature s of the patient and ALF would be

irrational and unsupported b y logic and the necessary facts

because the re is no reason for the patient or ALF to sign a

medical examination form, that does not also contain a statement

of the services to be provided by the ALF. The only signature on

a medical ex amination form that m ight ration ally be required

would be that of the health care professional in order to

authenticate the completed form.

56. A "form" is "the shape and structure of something as

distinguished from its materi al -- the building's massive form " ; or

"a printed or typed document with blank spaces for insertion of

required or requested information tax forms."

CONCLUSIONS OF LAW

5 7 . DOAH has jurisdiction. § 120.56(1)(a), Fla. Stat.

Each petitioner is substantially affected by each rule .

§ 120.56(1)(b)2.

58. A person is substantially affected by a rule that

regulates the person . See , e.g. , Lanoue v. Fla. Dep't of Law

Enf. , 751 So. 2d 94 (Fla. 1st DCA 1999); Cole Vision Corp. v.

Dep't of Bus. & Prof'l Reg. , 688 So. 2d 404 (Fla. 1st DCA 19 97);

Ward v. Bd. of Trs. of the Int. Impust Fund , 651 So. 2d 1236

(Fla. 4th DCA 1995) (per curiam). A person is not required to

violate a regulatory rule to be substantially affected. Prof'l

Firefighters of Fla. v. Dep't of HRS , 396 So. 2d 1194 (Fla. 1st

DCA 1981).

59. In Florida Home Builders Association v. Department of

Labor and Employment Security , 412 So. 2d 351 (Fla. 1982), the

Florida Supreme Court held that a trade association may be

substantially affected by a rule if its members are substan tially

affected by the rule that does not otherwise affect the

association. I n Coalition of Mental Health Professions v.

Department of Professional Regulation , 546 So. 2d 27 (Fla. 1st

DCA 1989), the court applied to an association the well -

established pri nciple concerning regulatory rules set forth in

the preceding paragraph, so that, if the associationÓs members

are regulated by the challenged rule, the association is also

substantially affected by the rule.

60. For some rules, Respondent argued that AHC A does not

enforce requirements, such as items included in a Form 1823. 2 8 A s

a matter of law, if a rule states a requirement, an ALF is a

substantially affected person because section 429.19(1)

predicates discipline on the violation of, among other things,

any rules applicable to ALFs. All of the challenged rules impose

enforceab le duties on ALFs, regardless of whether the current

policy of Respondent or AHCA is to enf orce each of these

requirements; if Respondent wishes to adopt unenforceable rules,

so as to deprive ALFs of the ability to challenge them, the

burden is on Responde nt to draft the rules so that they clearly

state that they are mere suggestions, preferences, or

recommendations and are not enforceable .

61. In part, Respondent argued that certain amendments

restate already - existing duties imposed upon ALFs by rules not at

issue in these cases. An example of this argument is that

rule 58A - 5.0182(6)(d)8. requires that a facility prepare a

written statement of its "requirements for coordinating the

delivery of services to residents by third party providers."

Because rule 58A - 5.031(2)(d) requires the same thing,

specifically as to nur sing services, Respondent claimed that the

p etitioners could not be substantially affected by such a

proposed rule. It is unnecessary to address this argument

because, as explained in the Pre liminary Statement, except for

proposed rule 58A - 5.024, the pending challenges are to existing

rules.

62. P etitioner s must prove that an existing rule is an

invalid exercise of dele gated legislative authority.

§ 120.56(3)( a). Respondent must prove that a proposed rule is

not an in valid exercise of delegated legislative authority as to

the objections raised . § 120.56(2)(a). The standard of proof

is a preponderance of the evidence. § 120.56(1)(e). The above -

stated findin gs would have been the same, regardless of which

party bore the burden of proof.

63. An "invalid exercise of de legated legislative

authority"

means action that goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or e xisting rule is

an invalid exercise of delegated legislative

authority if any one of the following

applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agenc y has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented is also required. An agency may

adopt only rules that implement or interpret

the specific power s and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

enabling legislation and is not arbitrary

and capricious or is within the agencyÓs

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language granting rulemaking authority or

generally describing the powers and

functions of an agency shall be c onstrued to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

64. At times, t he parties have struggled to identify the

invalidation grounds cited to invalidate each rule. Petitioners'

a bove - noted confusion on these issues was complemented by

Respondent's confusion in failing to object at hearing to evidence

or argument pertaining to an issue not preserved in the Prehearing

Stipulation. 2 9 At various points, the parties' proposed final

or ders reflect the same confusion.

65. In the Prehearing Stipulation, the p etitioners waived

all invalidation grounds not preserved therein. See , e.g. ,

Delgado v. Ag. for Health Care Admin. , 2018 Fla. App. LEXIS 1012,

43 Fla. L. Weekly D 245 (Fla. 1st DCA 2018). Equally well

established in the case law is the principle of trial by consent.

See , e.g. , Dep't of Rev. v. Vanjaria Enters. , 675 So. 2d 252 (Fla.

5th DCA 1996) (invalidation ground s for rule challenge evi dently

not pled). The obvious issue is whether the waiver in the

Prehearing Stipulation overrides the trial by consent . When

opposing parties litigate an issue, without objection, even though

it was not preserved by a prehearing s tipulation, it would seem

that they are impliedly amending their prior agreement. A

sensible approach to this issue would impose upon the potentially

aggrieved party the necessity of objecting, so the Administrative

Law Judge may rule on whether an issue is covered by a prehearing

stipulation and save time, if the objection is sustained . But a

definitive resolution of this issue of law will require judicial,

not administrative, action. 3 0

66. An ALF may operate under a "standard license," an

"extended congregate care license," or a "limi ted nursing services

license," § 429.07, or a "lim ited mental health license."

§ 429.075. References in the statutes to "Department" mean

Respondent and to "Agency" mean the Agency for Health Care

Administration. § 42 9.02(3) and (9).

67. Section 429.41 states:

(1) It is the intent of the Legislature

that rules published and enforced pursuant

to this section shall include criteria by

which a reasonable and consistent quality of

resident care and quality of life may b e

ensured and the results of such resident

care may be demonstrated. Such rules shall

also ensure a safe and sanitary environment

that is residential and noninstitutional in

design or nature. It is further intended

that reasonable efforts be made to

acco mmodate the needs and preferences of

residents to enhance the quality of life in

a facility. Uniform firesafety standards

for assisted living facilities shall be

established by the State Fire Marshal

pursuant to s. 633.206. The agency, in

consultation wi th the department, may adopt

rules to administer the requirements of part

II of chapter 408. In order to provide safe

and sanitary facilities and the highest

quality of resident care accommodating the

needs and preferences of residents, the

department, in consultation with the agency,

the Department of Children and Families, and

the Department of Health, shall adopt rules,

policies, and procedures to administer this

part, which must include reasonable and fair

minimum standards in relation to:

(a) The requirements for and maintenance

of facilities, not in conflict with chapter

553, relating to plumbing, heating, cooling,

lighting, ventilation, living space, and

other housing conditions, which will ensure

the health, safety, and comfort of residents

sui table to the size of the structure.

* * *

3. Resident elopement requirements. Ï

Facilities are required to conduct a minimum

of two resident elopement prevention and

response drills per year. All

administrators and direct care staff must

participate in the drills which shall

include a review of procedures to address

resident elopement. Facilities must

document the implementation of the drills

and ensure that the drills are conducted in

a manner consistent with the facilityÓs

resident elopement policies and procedures.

* * *

(c) The number, training, and

qualifications of all personnel having

responsibility for the care of residents.

The rules must require adequate staff to

provide for the safety of all residents.

Facilities licensed for 17 or more residents

are required to maint ain an alert staff for

24 hours per day.

(d) All sanitary conditions within the

facility and its surroundings which will

ensure the health and comfort of residents.

The rules must clearly delineate the

responsibilities of the agencyÓs licensure

and su rvey staff, the county health

departments, and the local authority having

jurisdiction over firesafety and ensure that

inspections are not duplicative. The agency

may collect fees for food service

inspections conducted by the county health

departments and transfer such fees to the

Department of Health.

(e) License application and license

renewal, transfer of ownership, proper

management of resident funds and personal

property, surety bonds, resident contracts,

refund policies, financial ability to

ope rate, and facility and staff records.

* * *

(h) The care and maintenance of

residents, which must include, but is not

limited to:

1. The supervision of residents;

2. The provision of personal

services;

3. The provision of, or arrangement

for, social and leisure activities;

4. The arrangement for appointments

and transportation to appropriate medical,

dental, nursing, or mental health services,

as needed by residents;

5. The management of medication;

6. The nutritional needs of

residents;

7. Resident records; and

8. Internal risk management and

quality assurance.

(i) Facilities holding a limited

nursing, extended congregate care, or

limited mental health license.

(j) The establishment of specific

criteria to define appropriateness of

resident admission and continued residency

in a facility holding a standard, limited

nursing, extended congregate care, and

limited mental health license.

* * *

(l) The estab lishment of specific

policies and procedures on resident

elopement. Facilities shall conduct a

minimum of two resident elopement drills

each year. All administrators and direct

care staff shall participate in the drills.

Facilities shall document the dri lls.

68. R ule 58A - 5.024(1)(p)1.a. is not vague. A rule is vague

"if it forbids or requires the performance of an act in terms that

are so vague that persons of common intelligence must guess at its

meaning and differ as to its application." State v. Pet er R.

Brown Constr., Inc. , 108 So. 3d 723, 728 (Fla 1st DCA 2013).

A fter every contact with a resident, a staffperson must wash his

hands. As applied in accordance with Respondent's assurance that

the inspector will know, upon sight, the kind of contact that

requires hand sanitizing , the rule is vague and fails to establish

adequate standards for agency decisions, but resolution of this

issue is unnecessary because this rule is invalidated on other ,

facial grounds.

69. As explained in the Finding s of Fact, rule 58A -

5.024(1)(p)1.a. is arbitrary and capricious because of its failure

to define residential contact sensibly and in a workable manner .

70. Rule 58A - 5.024(1)(p)1.a. exceed s any grant of rulemaking

authority. The second sentence of section 409.41(1) authorizes

Respondent to adopt rules to ensure a sanitary environment that is

residential and noninstitutional in design or nature . B ut this

and much of the statutory language in se ctio n 429.41(1) preceding

section 42 9.41(1)(a) falls within the scope of the flush left

caveat of section 120.52(8) becaus e these provisions of

section 42 9.41(1) do not describe the "specific powers and duties

granted by the enabling statute." As is relev ant to this case,

the portion of sectio n 429.41(1) preceding section 42 9.41(1)(a)

that specifies the powers and duties granted to Respondent for

rulemaking is that the agency rules "must include reasonable and

fair minimum standards" in relation to sub sect ions (a) through (l)

of section 429.41(1).

71. Potential source s of rulemaking authority for

rule 58A - 5.024(1)(p )1.a. are sectio n 42 9.41(1)(d), which

authorizes Respondent to adopt rules that set "reasonable and fair

minimum standards in relation to . . . [a]ll sanitary conditions

within the facility and its surroundings which will ensure the

health and comfort of residents, " and section 429.41(1)(h), which

authorizes Respondent to adopt rules that set "reasonable and fair

minimum standards in relation to . . . [t]he care and maintenance

of residents."

72. Sanitary conditions within the facility certainly

encompass sanitary furniture and fixtures, such as floors,

bathrooms, kitchens, bedrooms, and common area and likely include

a hand hygiene program. T he care and maintenance of residents

likely include a hand hygiene program. But, as explained in the

Findings of Fact , rul e 58A - 5. 024(1)(p)1.a. sets unreasonable

standards , so this rule exceeds the grant of rulemaking authority

in section 429.41(1) .

73. R ule 58A - 5.024(1)(p)1.a. modifies or contravenes the law

implemented. The flush left language of section 120.52(8)

applies to rulemaking authority, but not to the law implemented.

Thus, the law implemented includes the general language of

sectio n 429.41(1) preceding section 42 9.41(1)(a). The legislative

mandate is for rules that "ensure a safe and sanitary environment

that is residential and noninstitutional." The need to balance

these objectives is underscored by their inclusion in a single

sent ence. As explained in the Findings of Fact, rule

58A - 5.024(1)(p)1.a. does not even attempt such a balancing and, if

conformed to and enforced literally, would preclude even the

semblance of a homelike environment at an ALF , as staff repeatedly

sanitize d t heir hands after and, to the extent possible, before

every resident contact of any sort .

74. Rule 58A - 5.024 (3)(c) is not arbitrary or capricious.

75. R ule 58A - 5.024(3)(c) exceeds any grant of rulemaking

authority. There is no specific grant of rulemaking authority

that encompasses a rule requiring a facility to maintain copies of

the records of a provider of third party nursing services.

Section 429.41(1)(h)7. authorizes Respondent to adopt rules

setting reasonable and fair minimum standards in relation to

resident records, but the focus of each of the subparagraphs under

section 429.41(1 )(h) is on services directly provided by the

facility, not on the same services supp lied by a third party

provider. Thus, the sta tute's reference to "[r]esident records"

does not mean nursing records created and maintained by a third

party providing nursing services any more than the provision of

social and leisure activities means activities provided by, say, a

third party movie theater or golf course or the provision of

personal services means hairdressing or other beauty services

provided by a third party . Thus , these sub paragraphs do not

authorize this rule, even without consideration of whether

imposing on a facility these bu rdens of obtaining and maintaining

third party nursing records is "reasonable and fair."

76. Under the circumstances, this f inal o rder does not

address whether rule 58A - 5.024(3)(c) enlarges, modifies, or

contravenes the law implemented.

77. Rule 58A - 5.03 1(2)(d) is not arbitrary or capricious.

78. Rule 58A - 5.031(2)(d) exceeds any grant of rulemaking

authority. As cited above, s ection 429.41(1)(h)8. , which

authorizes rulemaking for internal risk management and quality

assurance , is part of a series of sub paragraph s that focus on the

int e rnal activities of the facility. Also, a quality assurance

program systematically monitors and evaluates various aspects of

resident services to ensure that quality standards are met . If

limited to organizing the ALF's nurse so that she work s well

together with third party providers of nursing services ,

"coordination" may satisfy the internal focus of

section 429.41(1)(h)8. But "c oordination" does not fit within a

quality assurance program because it is not part of an effort to

monitor and evaluate services. Coordination of services may

promote the delivery of superior services, which would be

confirmed by the monitoring and evalu ation elements of a quality

assurance program.

79. The final 12 words of the rule -- "to ensure resident care

is provided in a safe and consistent manner " -- raise additional

issues regarding Respondent's rulemaking authority. Consistent

with the preceding discussion, the auth orization of rulemaking as

to a q uality assurance program is not an authorization of

rulemaking to guarantee outcomes . One of Respondent's witnesses

unpersuasively defined "ensure" as though it meant "promote," but

such an unconventional interpretation of "ensure" would render the

rule vague. In any event, substituting "promote" for "ensure"

still would not be sufficient to conclude that the rule falls

within the reach of section 429.41(1)(h)8. because guaranteeing

that res ident care is provided safely and consistently is not part

of a monitoring or evaluation program.

80. Rule 58A - 5.0185(3)(g) and 58A - 5.0191(3)( a) are not

arbitrary or capricious.

81. Rule 58A - 5.0185(3)(g) and 58A - 5.0191(3)(a) do not exceed

any grant of ru lemaking authority. In general, the rulemaking

authority for a rule requiring ICPs is section 429.41(1)(d)

and (h), which was discussed ab ove in connection with

rule 58A - 5.024(1)(p)1.a. Section 429.41(1) (d) authorizes

rulemaking for "sanitary conditions within the facility. Section

429.41(1) (h) authorizes rulemaking for the "care and maintenance

of residents ," and section 429.41(1)(h)1. through (h)8. provides a

nonexhaustive list of examples of what falls under the "care and

maintenance of residents." Infection control and, thus, ICPs are

paramount concerns when addressing the care and maintenance of ALF

residents.

82. As discussed, all rules authorized under

section 429.41(1) must set "reasonable and fair minimum

standards." This requirement is for m inimum standards, not

minimum comprehensive standards. Respondent has prescribed

minimum standards for all ALFs in terms of ICPs. As cited above,

rule 58A - 5.024(1)(p)1.b. through 1.e. sets minimum standards for

ICPs in terms of the use of gloves for cert ain resident contacts,

the safe use of glucometers, medication practices, and the control

of certain p ests that may transmit disease.

83. More particularly, Respondent has an other source

of rulemaking authority for ru le 58A - 5.0185(3)(g).

Section 429.41(1 )(h)5. authorizes rulemaking as t o the "management

of medication. " Infection control is an issue of overriding

relevance in the management of medication, so as to fall within

this sub paragraph . And, for rule 58A - 5.0191(3)(a),

s ection 429.52(2) authorizes rulemaking as to the "minimum

training and education requirements" to be provided ALF staff.

Again, training in infection control is an issue of overriding

importance, so as to fall within this subsection. Applicable to

both rules, s ection 429.52(3)(e) requires that Respondent require

training as to "medication management," including "assisting

residents with self - administered medication."

84. Rule 58A - 5.0131(41) is not arbitrary or capricious , but

is vague. A statutory definition m erely informs the reader's

understanding of the statutory act of which it is a part, as the

statutory definition "neither creates rights nor enforces duties."

Owens v. Republic of Sudan , 864 F.3d 751, 775 - 776 (D.C. Cir. 2017)

(meaning of "extrajudicial killing"). The same principle applies

to a definition in a rule. Cf. Dep't of Prof' l Reg. v. Fla. Soc.

of Prof' l Land Surveyors , 475 So. 2d 939, 941 (Fla. 1st DCA 1985)

(interpreting for mer version of section 120.52(8), court accepts

agency's argument that a definitional rule invokes the agency's

authority "to explain the meaning of technical terms contained

within the statutory provisions"). Forc ed to perform the twin

duties of defining terms and enforcing duties, rule 58A - 5.0131(41)

fails to express clearly exactly when and what is required of

ALFs.

85. Rule 58A - 5.019(3) is not arbitrary or capricious. FALA

argued that the rule is arbitrary or capricious, not because it is

not based on logic or the necessary facts or because it is

irrational, but because it either exceeds rulemaking authority or

contravenes the law implemented. These are not the tests for

whether a rule is arbitrary or capricious, and, as noted in the

Preli minary Statement, FALA failed to preserve in the Prehearing

Stipulation the invalidation grounds of rulemaking authority and

law implemented .

86. Rule 58A - 5.0182(8)(a)1. is arbitrary and vague, but not

capricious . As to one of the bases for the finding o f vagueness,

in the "Deflategate" case, a court considered the arbitrator's

finding that NFL quarterback Tom Brady was "generally aware" that

the team's equipment assistants had deflated his footballs in

violation of the rules. NFL Mgmt. Council. v. NFL P layers Ass'n ,

125 F. Supp. 3d 449, 466 n.16 (S.D.N.Y. 2015) (in exchange with

counsel, an obviously exasperated judge complained, "I am not sure

I understand what in the world ["generally aware"] means").

87. Rule 58A - 5.0182(8)(a) is not capricious, but it is

arbitrary.

88. As incorporated by rule 58A - 5.0181(2)(b), sectio n 1 of

Form 1823, as to the yes - or - no question about elopement risk, is

arbitrary, but not capricious.

89. As incorporated by rule 58A - 5. 0181(2)(b), section 1.A of

Form 1823 is not capricious, is not arbitr ary as to the ADLs of

ambulating , eating, and transferring; and is arbitrary as to the

ADLs of bathing, dressing, grooming, and toileting.

90. As incorporated by rule 58A - 5.0181(2)(b), section 1.C of

Form 1 823, as to the posing a danger to self or ot hers, is

arbitrary, but not capricious . This is a fraught question with

considerable liability concerns to the ALF, s ee , e.g. , Pollock v.

CCC Inv s . I, LLC , 933 So. 2d 572 (Fla. 4th DCA 2006) , and possibly

the health care provider . A false positive may substantially

reduce the placement options for a person seeking to enter an ALF.

In judicial proceedings, t he question of whether a person poses a

danger to self or others demands psychiatric testimony. Hill v.

State , 358 So. 2d 190, 206 (Fla. 1st DCA 1978). A rule requiring

a health care provider, who likely does not specialize in

psychiatry, to provide a "yes" or "no" answer to this important

question is unlikely to generate reliable information and is not

su pported by logic or the necessary facts.

91. As incorporated by rule 58A - 5.0181(2)(b), section 1.D of

Form 1823, as to whether the patient's needs can be met in an ALF,

is arbitrary, but not capricious.

92. As incorporated by rule 58A - 5.0181(2)(b), section 2 - A.A

of Form 1823, as to the extent to which the patient can perform

self - care tasks , is arbitrary, but not capricious. As

incorporated by rule 58A - 5.0181(2)(b), section 2 - A.B of Form 1823,

as to the extent to which the patient requires general o versight,

is arbitrary, but not capricious.

93. As incorporated by rule 58A - 5.0181(2)(b), section 3 of

Form 1823, as to the listing of the patient's needs and services,

is not arbitrary or capricious.

94. The requirement that the resident and ALF sig n the

Form 1823 is not arbitrary or capricious , as long as section 3 is

part of the form . With the invalidation of section 3, as

discusse d below, the requirement of the signature s of the patient

and ALF is arbitrary and capricious.

95. The final issue is whether any of the above - cited

provisions of Form 1823, except f or the requirement of the

signatures of the patient and ALF , exceeds any grant of rulemaking

authority.

96. No statute grants Respondent rulemaking authority for

Form 18 23, as such. Secti on 429.26 (4) alludes to a "signed and

completed medical examination report" by the health care provider

who conducts the medical examination within 60 days prior to

admission . More to the point , s ection 429.26(5) and (6) refers to

a "medical examination form provided by [AHCA] " and the

"exam ination form provided by [AHCA]. " However, these statutory

references to a form provided by AHCA fail to confer rulemaking

authority because they fail to comply with the flush lef t language

of section 120.52(8). T he se statutory references to a form , which

presumably is Form 1823, 3 1 do not suggest what the form is to

contain, so they do not grant to Respondent or AHCA specific

powers or duties to populate the form with anything but, at most,

the minimum information that a "form" documenting a medical

examination would supply, such as the names of the health care

provider and patient, the date of the examination, and a brief

statement of relevant findings.

97. Of course , o ther statutes may grant Respondent

rulemaking authority for specific provisions of Form 1823. T he

inquir y as to elopement risk in section 1 requires analysis of

s ection 429.41(1)(l) , which authorizes rulemaking of "reasonable

and fair minimum standards" e stablishing "policies and procedures

on resident elopement." T his statutory grant is in sufficient to

support rulemaking where the inquiry is posed to a health care

provider conducting a typical medical examination because, as

discussed above, such an inquiry is unreasonable and, due to the

inherent reliability of any response, unfair to the patient and

ALF, as well as th e health care provider . Respondent has thus

exceeded any grant of rulemaking authority in posing the yes - or - no

question about elopeme nt ri sk in section 1 of Form 1823 .

98. The inquiry as to ALF s in section 1.A suggests

consideration of section 429.41(1)(j), but this provision

authorizes rulemaking for "reasonable and fair minimum standards"

establishing "specific criteria to define a ppropriateness of

resident admission and continued residency in a facility holding a

standard, limited nursing, extended congregate care, and limited

mental h ealth care license." S ection 1 .A. does not establish

appropriateness criteria; it seeks data that , if reliable, may

support an appropriateness determination . Also, as discussed

above, posing this inquiry as to all of the ADLs except

ambulating, eating, and transferring to a health care provider

conducting a typical medical examination is unreasonable and, due

to the inherent unreliabilit y of any response, unfair to the

pati ent and ALF, as well as the hea l t h care provider. Respondent

thus has exceeded any grant of rulemaking authority in section 1.A

of Form 1823.

99. The inquiry in section 1.C as to whether the patient is

a danger to self or others finds no corresponding statutory

authority for rulemaking. Respondent has thus exceeded any grant

of rulemaking authority in section 1.C of Form 1823.

100. The inquiry in section 1.D as to whether t he patient's

needs may be met in an ALF that is not a medical, nursing, or

psychiatric facility has no corresponding statutory authority for

rulemaking. Respondent has thus exceeded any grant of rulemaking

authority in section 1.D of Form 1823.

101. The inquiry in section 2 - A.A for rating the patient's

ability to perform self - care tasks has no corresponding statutory

authority for rulemaking. The inquiry in section 2 - A.B for rating

the patient's ne ed for general oversight has no corresponding

statutory a uthority for rulemaking. Respondent has thus exceeded

any grant of rulemaking authority in section 2 - A.A and 2 - A.B of

Form 1823.

102. The statement of services needed and their provision by

the ALF in section 3 suggest consideration of section 429.24(8),

but this provision authorizes rulemaking by Respondent to "clarify

terms, establish procedures, clarify refund policies and contract

provisions, and specify documentation as necessary to administer

this section." An AL F must enter into a contract with each

resident. § 429.24(1). The contract must specify the services

and accommodations to be provided by the ALF, the rates or

charges, a provision for at least 30 days' notice of a rate

increase, the rights, duties and o bligations of a resident, and

other matters that the parties choose to address. § 429.24(2).

The remaining provisions dea l mostly with handling payments and

refunds.

103. Section 3 is a description of services to be provided

by an ALF, but it is not a description of a services based on the

agreement reached by the resident and the ALF. Instead, section 3

represents an attempt by Respondent to identify the services that

an individual resident will need -- based on, as noted above,

largely unreliable data from a health care provider -- and to

require the parties to agree upon the provision of these services.

Section 429.24 does not confer upon Respondent such a duty or

power.

104. The largely unreliable data from the health care

provider precludes reliance on section 429.41(1)(h)2. or (1)(j) as

authority for adopting section 3 of Form 1823. The unreliability

of the data from sections 1 and 2 means that the demands of

section 3 cannot satisfy the threshold requirement of constituting

"reasonable and fair mi nimum standards." This assumes that the

services identified in section 3 are described by the "personal

services" of section 429.41(1)(h)2. In any case, the services

identified in section 3 are not described as "specific criteria to

define appropriatenes s" for admission of section 429.41(1)(j)

because needed services are not appropriateness criteria for

admission.

105. Because no other statute authorizes rulemaking as to

section 3, Respondent has exceeded any grant of rulemaking

authority in section 3 of Form 1823.

ORDER

It is

ORDERED that :

1. T he challenged amendments , as detailed in the Findings

of Fact, to the following rules are declared invalid exercises of

delegated legislative authority: rules 58A - 5.024(1)(p)1.a.,

58A - 5.024(3)(c), 58A - 5.031(2)(d), 58A - 5.0131(41),

58A - 5.0182(8)(a), 58A - 5.0182(8)(a)1., and, as incorporated by

rule 58A - 5.0181(2)(b), Form 1823, section 1 as to the question

about elopement risk, section 1.A, section 1.C as to the

question about posing a danger to self or oth ers, section 1.D,

section 2 - A.A, section 2 - A.B, section 3, and the signature lines

for the patient and the ALF.

2. Any and all challenges to amendments, as detailed in

the Findings of Fact, to the following rules are dismissed:

rules 58A - 5.0185(3)( g), 58A - 5.0191(3)(a), and 58A - 5.019(3).

3. Respondent's request for attorneys' fees is denied

because it is not the prevailing party, as required by

section 120.595(2) and (3).

DONE AN D ORDERED this 30 t h day of August , 2018 , in

Tallahassee, Leon County , Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30 t h day of August , 2018 .

ENDNOTES

1 "AHCA" is the Agency for Health Care Administration.

2 "Rule" or "rules" describes a rule or an amendment to a rule,

regardless of whether the rule or amendment is proposed or filed.

3 See endnote 16 below.

4 The jurisdictional prerequisite for a rule challenge is

that the challenger must be "substantially affected" by a rule.

§ 120.56(1)(a). The parties stipulated to the jurisdictional

prerequisite for a bid challenge. § 120.57(3)(b). This f inal

o rder applies the language of section 120.56(1)(a).

5 This issue alleges that a challenged rule enlarges, modifies,

or contravenes any implemented statute that prescr ibes a homelike

environment for an ALF. This issue applies only to rule

58A - 5.024(1)(p)1.a. because this is the only rule that could

impede a facility's ability to maintain a homelike environment.

The tenth issue thus encompasses this issue; the verbiage about a

violation is disregarded as mere argument.

6 One issue has been omitted. It pertains to the economic impact

of the rules. See endnote 10 below.

7 The Prehearing Stipulation does not specify the challenged

provisions of Form 1823. FSLA's pet ition challenges the

following provisions: page 1, section 1; page 2, section 1(A);

page 2, section 1(C); page 2, section 1(D); page 3, section 2 - A;

and page 5, section 3. At hearing, the parties addressed

considerable testimony to each of these parts of Form 1823, as

have their proposed final orders, so it is clear that this issue

focuses on these sections of Form 1823. FALA preserved its sole

issue concerning the Form 1823 as the twelfth issue stated below.

8 The statutory language is arbitrary "or " capricious,

section 120.52(8)(e). This final o rder applies the language of

section 120.52(8)(e).

9 The Administrative Law Judge construes this language as raising

the issue of whether Respondent has exceeded its grant of

rulemaking authority.

1 0 Two issues have been omitted. They pertain to a statement of

estimated regulatory costs, pursuant to section 120.541. At the

start of the hearing, the Administrative Law Judge granted

Respondent's motion in limine to limit FALA's evidence to the

exist ence, rather than the adequacy, of a statement of estimated

regulatory costs. After the ruling, FALA withdrew its

allegations concerning this issue.

11 One issue has been omitted. It pertains to a requirement in

rule 58A - 5.0185(3)(b) for a staffperson to read aloud a

medication label prior to administering the medication. FALA

withdrew this allegation in its p roposed f inal o rder.

12 The issues are whether proposed rule 58A - 5.024(1)(p)1.a.

violates section 120.54(1)(g), which limits a rule to "one

subject," and, if so, whether the proposed rule falls under

section 120.52(8)(a), which defines as an invalid exercise of

delegated legislative authority an agency's failure "materially

. . . to follow the applicable rulemaking procedures or

requirements set forth in this chapter." FSLA's one - subject

contention seems to be that this proposed rule, which specifies

that a hand hygiene program must be part of an ALF's infection

control policy, is found in a rule that otherwise describes the

documentation that an ALF must maintain, not the contents of the

documentation.

13 As found at https://www.cms.gov/Outreach - and - Education

/Medicare - Learning - Network - MLN/MLNProducts/downloads/

referenceii.pdf[.]

14 For rulemaking authority, Respondent cited 15 statutes. For

the law implemented, Respondent cited 46 statutes and an enacted

bill. Most of these statutes have no bearing on these rules.

15 When citing rules, this final o rder shows the amendments by

underlining, challenged amendments by boldfacing, and, where

necessary, deletions by striking through.

16 The Notice of Proposed Rule added the following language at

this point: " and the term 'resident' includes day care

participants and respite care residents ." The Notice of Change,

which is described in the Preliminary Statement, deleted this

language.

17 The parties did not challenge the omission from the rule of

any reference to the cla ss of persons covered by the hand - hygiene

program. During the hearing, when the Administrative Law Judge

inadvertently offered a different reading of this provision in

connection with another matter, the parties seemed to share a

common understanding that this provision applies only to ALF

staff, as distinct, it seems, from third party service providers,

visitors, and other residents. Thus, in this final order, the

Administrative Law Judge joins the parties in this shared

understanding.

18 § 429.14, F la. Stat.

19 Webster's online dictionary, at https://www.merriam - webster.

com/dictionary/sanitary[.]

20 Webster's online dictionary, at https://www.merriam - webster.

com/dictionary/coordination[.]

21 Webster's online dictionary, at https://www.merriam - webster.

com/dictionary/ensure[.]

22 Respondent's proposed final o rder, p. 21.

23 The lone exception is rule 58A - 5.0131(29).

24 Webster's online dictionary, at https://www.merriam - webster.

com/dictionary/generally [.]

25 In its proposed final order, Respondent argued that an

Administrative Law Judge recognized a duty of an ALF to know the

"general whereabouts" of its residents. Ag. for Health Care

Admin. v. Rise and Shine Assisted Living Facility , DOAH Case

16 - 7558, ¶ 74. Of course, this phrasing qualifies lo cation, not

awareness, but the R ecommended O rder reveals that the

Administrative Law Judge's finding was part of a general

discussion of the acts and omissions of the ALF, not fact finding

in support of a charge of viol ating rule 58A - 5.0182(8)(a)1.

Neither this rule nor the facts found as to the "general

whereabouts" of the residents were discussed in the Conclusions

of Law. Id. at ¶ 78 et seq. Although hardly outcome -

determinative for the present cases, the Rise and Shine ALF was

cited for a failure to complete items on the "health assessment

form," which was likely the Form 1823. Id. at ¶ 78 et seq.

26 A "health care provider" is a physician, physician's

assistant, or advanced registered nurse practitioner. Fla .

Admin. Code R. 58A - 5.0131(19). A "mental health care provider"

is "an individual, agency, or organization providing mental

health services to clients of [DCF]; an individual licensed by

the state to provide mental health services; or an entity

employing or contracting with individuals licensed by the state

to provide mental health services." Fla. Admin. Code R. 58A -

5.0131(25).

27 There is an eleventh condition: "Lives in AL and is a

moderate risk." "AL" probably means "assisted living"; if so,

this condition would apply to the present case. But the

classification as a moderate risk is circular because the point

of the tool is to dete rmine the ris k level. For this reason, the

f inal o rder omits this factor.

28 But see endnote 25 above.

29 During the hearing, the Administrative Law Judge granted

Respondent's sole attempt to restrict the invalidation grounds.

See endnote 10 above.

30 For three practical reasons, the Administrative Law Judge

chose trial by consent over the binding waiver of a prehearing

stipulation: 1) the parties elicited testimony on, or argued,

the issues tried by consent, 2) if the Administrative Law Judge

were reversed on appeal on either choice, it is easier for the

appellate court or Administrative Law Judge to delete the

offending portions of the final order than to add portions that

are improperly omitted, and 3) if not resolved in these cases,

substantiall y affected persons later may challenge these rules on

the same invalidation grounds.

31 This f inal o rder ignores the fact that these statutory

references to what is likely Form 1823 are not to the subject

amendments to Form 1823.

COPIES FURNISHED:

Amy W. Schrader, Esquire

Cody W. Short, Esquire

Baker Donelson

101 North Monroe Street, Suite 925

Tallahassee, Florida 32301

(eServed)

Kenneth G. Oertel, Esquire

Oertel, Fernandez, Bryant & Atkinson, P.A.

Post Office Box 1110

Tallahassee, Florida 32302

(eServed)

Jeanne Bisnette Curtin, Esquire

Francis A. Carbone, II, Esquire

Department of Elder Affairs

4040 Esplanade Way

Tallahassee, Florida 32399 - 7000

(eServed)

John F. Gilroy, III, Esquire

John F. Gilroy, III, P.A.

Post Office Box 14227

Tallahassee, Florida 32317

(eServed)

Jeffrey Bragg, Secretary

Department of Elder Affairs

4040 Esplanade Way, Suite 315

Tallahassee, Florida 32399 - 7000

(eServed)

Francis Carbone, General Counsel

Department of Elder Affairs

4040 Esplanade Way, Suite 315I

Tallahassee, Florida 32399 - 7000

(eServed)

Ernest Reddick, Program Administrator

Anya Grosenbaugh

Florida Administrative Code & Register

Department of State

R. A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Admin istrative Proced ures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final o rder is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate dis trict where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.