The purpose of the proposed rule amendment is to clarify waiver requirements for assisted living facilities under Chapter 429, Part I, F.S., and other waiver requirements under Chapter 120, F.S.

 

DEPARTMENT OF ELDER AFFAIRS
Federal Aging Programs

RULE NO: RULE TITLE
58A-5.035: Waivers
PURPOSE AND EFFECT: The purpose of the proposed rule amendment is to clarify waiver requirements for assisted living facilities under Chapter 429, Part I, F.S., and other waiver requirements under Chapter 120, F.S.
SUBJECT AREA TO BE ADDRESSED: Waiver requirements for assisted living facilities pursuant to Chapter 429, Part I, F.S., and reference to other waiver requirements under Chapter 120, F.S.
SPECIFIC AUTHORITY: 429.41 FS.
LAW IMPLEMENTED: 429.41 FS.
A RULE DEVELOPMENT WORKSHOP WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: November 28, 2007, 1:00 p.m. – 5:00 p.m.
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 225F, Tallahassee, Florida 32399-7000
THIS RULE DEVELOPMENT WORKSHOP IS BEING HELD IN CONJUNCTION WITH THE WORKSHOP FOR ASSISTED LIVING FACILITY CORE TRAINING PROVIDER REQUIREMENTS THAT IS ANNOUNCED SEPARATELY IN THIS PUBLICATION OF THE FLORIDA ADMINISTRATIVE WEEKLY.
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 72 hours before the workshop/meeting by contacting: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, Florida 32399-7000; telephone Number: [phone], SunCom 994-2000; Email Address: [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Jim Crochet, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, Florida 32399-7000; telephone Number: [phone], SunCom 994-2000; Email Address: [e-mail].

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

 

(Substantial rewording of Rule 58A-5.035 follows. See Florida Administrative Code for the current text.)

 

58A-5.035 Waivers.

The agency, in consultation with the department, may waive rules promulgated pursuant to Part I, Chapter 429 F.S., if the waiver request meets the conditions set forth in Section 429.41(4), F.S., and demonstrates and evaluates innovative or cost-effective congregate care alternatives which will enable individuals to age in place.

(1) Application Process.

(a) Licensed assisted living facilities proposing a waiver under this statute must submit the request in writing. All requests must include the facility name and address, license number, administrator’s name and contact information for the requestor, or its attorney. Petitions for waiver of rules other than for the objectives detailed in Section 429.41(4), F.S., including emergency waivers, will not be considered under this section but should follow the petition for waiver provisions of Section 120.542, F.S., and Chapter 28.104, F.A.C.

(b) The written request must address the elements required in Section 429.41(4), F.S. In addition, the following information must be included in order to demonstrate how a waiver of the stated rule will permit development of a concept that will achieve the purpose of the underlying statute.

1. The rule or rules for which the waiver is requested.

2. The licensee’s anticipated date or dates for implementation of the concept.

3. A cost-benefit analysis of the proposed alternative to both residents or potential residents as well as facility operations.

4. An analysis of the impact the alternative will have on the relevant local community, including any barriers such as zoning or use issues which may need resolution prior to implementation.

5. Specific performance measures with an annual projection of objectives and goals to be achieved broken into quarterly increments or an annual projection of outcome measures, if the concept will be implemented in less than 90 days.

6. An annual budget projection broken into quarterly increments.

(c) A waiver can be requested at the time of the initial license application, relicensure, or any time during the licensure period.

(d) Waiver requests must be submitted to the Agency for Health Care Administration, Assisted Living Unit, 2727 Mahan Drive, Mail Stop 30, Tallahassee, Florida 32308-5403.

(2) In accordance with Section 120.542(6), F.S., the agency shall post notice of the request within fifteen (15) days of receipt of the request. The agency shall make any requests for additional information within 30 days of receipt of the request. If additional information is provided, the agency may request clarification of only that information no later than 30 days following receipt of the information. The agency shall have no more than 90 days from the receipt of the request to enter a response to the request for waiver unless by mutual agreement of the agency and requestor.

(3) The agency, in consultation with the department, will evaluate all requests   in light of the likelihood the concept as described in detail will achieve the underlying statutory objectives of innovative or cost effective congregate care alternatives to enable individuals to age in place as provided in Section 429.41(4), F.S. Waivers may be granted only so long as there is reasonable assurance that the health, safety or welfare of residents will not be endangered by the waiver.

(4) The agency shall grant or deny the request for waiver and enter an order summarizing the facts it relied on and reasons supporting its decision. The agency must provide notice of its order as described in Section 120.542(8), F.S. The requestor shall be advised that a denial of the request may be reviewed as provided in subsection (5) of this rule.

(5) Report of Findings. A facility that has been granted a waiver must submit an annual report within 12 months of the order granting the waiver as specified in Section 429.41(3)(b), F.S. If the report is not submitted as required, the agency may revoke the waiver.

(a) The agency will review the report of findings to determine whether the waiver shall be renewed or revoked.    The agency shall enter an order providing the general basis for making its decision and notify the licensee of its opportunity to seek review of a revocation in accordance with Sections 120.569 and 120.57, F.S. and Rule 28-106.111, F.A.C.

(b) The agency may also consider other material which is available relative to this review.

(c) A waiver is effective unless revoked by the agency or superseded by statutory or regulatory change.

(d) In reviewing the report of findings, the agency, in consultation with the department, shall assess whether statutory or regulatory changes should be pursued to enable other facilities to adopt the same practices.

Specific Authority 429.41 FS. Law Implemented 429.41 FS. History– New 9-30-92, Formerly 10A-5.035, Amended 10-30-95,       ________.