Mandatory Testing for Specific Agency-Licensed Facilities

 

DEPARTMENT OF CHILDREN AND FAMILIES

Agency for Persons with Disabilities

RULE NO.:RULE TITLE:

65GER20-1Mandatory Testing for Specific Agency-Licensed Facilities

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: The Novel Coronavirus Disease 2019 (COVID-19) is a severe respiratory illness that can spread among humans through respiratory transmission. In late 2019, a new and significant outbreak of COVID-19 emerged in China and the World Health Organization declared COVID-19 a Public Health Emergency of International Concern. According to the Centers for Disease Control and Prevention (CDC), people at risk for serious illness from COVID-19 include individuals with underlying chronic medical conditions. Underlying chronic medical conditions are more likely to occur in people with developmental disabilities (DD) such as down syndrome, cerebral palsy, and autism, according to studies such published in the Disabilities and Health Journal.*

On March 1, 2020 Governor Ron DeSantis issued Executive Order 20-51 declaring a Public Health Emergency exists in the State of Florida as a result of COVID-19. On March 7, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency in the State of Florida as a result of COVID-19. On March 9, 2020, Florida Governor Ron DeSantis declared a state of emergency in Florida. On March 15, 2020, the State Coordinating Officer, at the direction of the Governor, restricted visitation to congregate care facilities, including the Agency’s licensed facilities.

On July 7, 2020, Governor DeSantis extended the state of emergency for another 60 days.

The CDC further instructs facilities to, among other things, 1) Keep COVID-19 from entering the facility and 2) Identify the infection early. The COVID-19 virus can manifest as asymptomatic in positive individuals and the live, contagious coronavirus can shed at high concentrations before symptomatic development resulting in spread of the infection. Due to the congregate nature of group homes, the increased risk of transmission of COVID-19 is high. The highly transmissible nature of COVID-19 combined with the congregate nature of the group home settings and the close and personal contact that many facility staff have with the patients puts both residents and staff at a high risk of infection. Combining the high risk of group home settings with the risk posed by positive, asymptomatic staff creates a potential for sudden outbreaks in group homes. A single positive staff member in a facility can cause an outbreak resulting in the hospitalization and death of many vulnerable residents. If the staff member works at multiple facilities, this can result in facility-to-facility spread. Early identification of positive cases in long-term care facilities allows the state to implement immediate action to control outbreaks and avoid the loss of life. Given the above, this emergency rule establishes a requirement that group home settings must not admit any staff who have not been tested for COVID-19. Additionally, group homes must also require all facility staff to be tested for COVID-19 every two (2) weeks with testing resources provided by the state. Prompt implementation of this rule is necessary to ensure the health, safety and welfare of residents and staff in Florida’s APD licensed residential facilities.

*Margaret A. Turka, Scott D. Landes, Margaret K. Formica, et al., Intellectual and developmental disability and COVID-19 case-fatality trends: TriNetX analysis, (May 24, 2020) SCIENCEDIRECT, https://www.sciencedirect.com/science/article/pii/S1936657420300674#!.

REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: The procedure used to adopt this emergency rule is fair as the State of Florida is under a declaration of emergency due to the outbreak of COVID-19. This emergency rule is necessary and fair to ensure the health, safety, and welfare of the facility residents due to such an emergency. This emergency rule process provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution because of the Legislative grant of authority to the Agency to regulate the conduct of group home operators to ensure the health safety and welfare of their residents, and the grant of authority to the Governor as the director of response to this emergency. The rule takes only that action necessary to protect the public interest under the emergency procedure by targeting the potential source of introduction to the facility only.

SUMMARY: This emergency rule requires staff and household members of APD facilities to be tested for COVID-19 every two weeks and receive negative tests before being permitted entry to the facility serving persons with developmental disabilities. In addition, the APD facilities must maintain documentation of such.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Danielle Thompson, Agency for Persons with Disabilities, Senior Attorney, 4030 Esplanade Way, Suite 335, Tallahassee, FL 32399-0950, [phone], [e-mail]

 

THE FULL TEXT OF THE EMERGENCY RULE IS:

 

65GER20-1 Mandatory Testing for Specific Agency-Licensed Facilities

(1) DEFINITIONS. For the purposes of this emergency rule, the term:

(a) "Agency" means the Agency for Persons with Disabilities.

(b) "Direct service provider" is as defined in section 393.063(13), F.S.

(c) "Facility" means an Agency-licensed foster care facility under section 393.063(18), group home facility under 393.063(19), residential habilitation center under 393.063(34), developmental disabilities center under section 393.063(11), any forensic facility the Agency operates under section 916.106(10), and any civil facility designated by the Agency under 916.106(4)(b), F.S.

(d) "Household member" means any person residing in a live-in foster care setting licensed by the Agency under chapter 393, whether or not the person is considered staff of the facility.

(e) "Staff" means all paid and unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials, including body substances (e.g., blood, tissue, and specific body fluids); contaminated medical supplies, devices, and equipment; contaminated environmental surfaces; or contaminated air. Staff may include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons (e.g., clerical, dietary, environmental services, laundry, security, maintenance, engineering and facilities management, administrative, billing, and volunteer personnel) not directly involved in patient care but potentially exposed to infectious agents that can be transmitted among from staff and patients. This definition is consistent with the Centers for Disease Control and Prevention definition of healthcare personnel as defined in Appendix 2. Terminology.

(2) APPLICABILITY. The requirements of this emergency rule apply to facilities, as defined in this rule.

(3) MANDATORY TESTING FOR COVID-19.

(a) Beginning August 24, 2020, facilities shall not admit into the facility any staff or household member of the facility who has not been tested for COVID-19.

(b) Facilities shall require all staff and household members be tested every two (2) weeks thereafter with testing resources provided by the state.

(c) Staff and household members who have been infected and recovered from COVID-19 are required to show two consecutive negative test results separated by 24-hours prior to returning to the facility.

(4) DOCUMENTATION.

(a) If bi-weekly testing is conducted off-site, then staff or household members must provide testing results or proof of testing, which ever applies, to the facility.

(b) Facilities shall document all staff and household member testing, including the name of the individual, time, and dates of the test.

(c) Facilities shall require all tested staff and household members to notify the facility of the test results the same day the results are received. Upon staff or the household member receiving test results, documentation of the results must be provided to the facility.

(d) Facilities shall keep copies of all staff and household member testing documentation on site.

(5) REVOCATION OF LICENSE, FINES OR SANCTIONS. A violation of any part of this rule is a sufficient basis for the Agency to seek any remedy authorized by Chapter 393, F.S., including but not limited to, license revocation, license suspension, the imposition of administrative fines, or initiation of injunctive proceedings in any court of competent jurisdiction. Violation of any part of this rule is a class 1 violation pursuant to Rule 65G-2.0041, F.A.C.

Rulemaking authority, 393.501, 393.067 F.S., Law Implemented 20.197, 393.063, 393.067, 393.0673, 916.106, F.S. History–New 8/24/2020.

 

THIS RULE TAKES EFFECT UPON BEING FILED WITH THE DEPARTMENT OF STATE UNLESS A LATER TIME AND DATE IS SPECIFIED IN THE RULE.

EFFECTIVE DATE: 8/24/2020