The purpose and effect of the proposed rule amendment will be to repeal rules identified during the comprehensive rule review required by Executive Order 11-01 as duplicative, unnecessarily burdensome, or no longer necessary.

DEPARTMENT OF ELDER AFFAIRS
Federal Aging Programs

RULE NO.: RULE TITLE:
58A-6.004: Unlicensed Centers
58A-6.0051: Change of Owner or Operator; Marketing
58A-6.014: Administrative Enforcement
PURPOSE AND EFFECT: The purpose and effect of the proposed rule amendment will be to repeal rules identified during the comprehensive rule review required by Executive Order 11-01 as duplicative, unnecessarily burdensome, or no longer necessary.
SUMMARY: These rules are being repealed as the specific requirements of these rules substantially restate portions of Sections 408.801-.832, Florida Statutes, and Rule Chapter 59A-35, Florida Administrative Code, and are therefore, duplicative.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
STATEMENT REGARDING LEGISLATIVE RATIFICATION: The repeal of this rule is not expected to require legislative ratification pursuant to Section 120.541(3)(a)1., F.S., as there will be no impact on economic growth, job creation or employment, private-sector investment, or business competitiveness and no increase in regulatory costs.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 429.929 FS.
LAW IMPLEMENTED: 408.831(2), 429.907, 429.909, 429.925, 429.929 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE,TIME AND PLACE SHOWN BELOW(IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):
DATE AND TIME: September 8, 2011, 9:00 a.m. – 12:00 Noon
PLACE: Department of Elder Affairs, 4040 Esplanade Way, Conference Room 309, Tallahassee, FL 32399-7000
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Susan E. Rice, Asst. General Counsel, Department of Elder Affairs, Office of the General Counsel, 4040 Esplanade Way, Suite 315, Tallahassee, FL 32399-7000, Telephone number: [phone], Email address: [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

58A-6.004 Unlicensed Centers.

(1) An adult day care center’s owner or operator who fails to make application for licensure shall be advised by the AHCA by certified mail that the center is subject to licensure requirements. The letter shall state the basis upon which the AHCA has determined the center to be eligible for licensure and shall include notice that the center is to submit the $5.00 fee for an application for license packet to AHCA, 2727 Mahan Drive, Tallahassee, FL 32308 within 10 days of receipt of the notice.

(2) The letter shall cite Sections 429.90-.933, F.S., that the offering of adult day care center basic services without a valid license is a misdemeanor of the second degree punishable as provided in Section 775.083, F.S. The center shall be granted ten calendar days from the receipt of the certified letter to apply for license in accordance with this chapter. Failure to comply within the allocated ten days shall cause the agency to initiate injunction proceedings in a court of appropriate jurisdiction to terminate the operation of the center.

Rulemaking Specific Authority 429.929 FS. Law Implemented 429.907, 429.909, 429.923, 429.929 FS. History–New 7-8-81, Amended 2-27-84, Formerly 10A-6.04, 10A-6.004, 59A-16.004, Amended 11-9-95, 3-29-98, Repealed________.

 

58A-6.0051 Change of Owner or Operator; Marketing.

(1) The center must notify the Assisted Living Unit, AHCA at 2727 Mahan Drive, Tallahassee, FL 32308-5402, at least 60 days before the date of a change of ownership. The new owner must request and submit a check for $5.00 for the Licensure Application for Adult Day Care Center, ADCC Form-1, dated December 2003, incorporated by reference in Rule 58A-6.003, F.A.C., dated 2-19-04 and obtainable from Assisted Living Unit, AHCA, 2727 Mahan Drive, Tallahassee, FL 32399-5402, [phone], which includes the ADC rules and regulations.

(2) The agency shall issue the change of ownership applicant a conditional license pending confirmation that the applicant meets all standards and requirements for licensure. A conditional license issued for this purpose is limited to 6 months’ duration.

(3) The transferor shall, prior to agency approval of a change of ownership, repay or make arrangements to repay any outstanding fine amounts owed the agency pursuant to Section 408.831(2), F.S.

(4) If the center’s owner changes operators, the owner or new operator must notify the AHCA within 30 days at the address in subsection (1), and include the completed criminal background check forms.

Rulemaking Specific Authority 429.929, 408.831 FS. Law Implemented 429.925, 408.831(2) FS. History–New 11-9-95, Amended 3-29-98, 2-19-04, Repealed________.

 

58A-6.014 Administrative Enforcement.

(1) Deficiencies.

(a) The agency shall conduct on-site surveys of centers for the purpose of determining compliance with Chapter 429, Part III, F.S., and this rule chapter, and specifically the following surveys:

1. Initial licensure survey;

2. Biennial license renewal survey;

3. Follow-up survey;

4. Complaint investigation;

5. Special survey; and

6. Change of ownership survey.

(b) The agency shall issue licensure deficiency statements in accordance with the provisions of Section 429.913, F.S., for deficiencies that are observed by agency personnel at any inspection of the center.

1. Major deficiencies shall constitute conditions affecting the health, safety, and well-being of participants. The licensure deficiency statement for a major deficiency shall state a time period for correction of the deficiency. The time period established by the agency shall be based on the severity of the threat to health, safety, and well-being and on the nature of the actions necessary to correct the deficiency. The time period for correction of major deficiencies considered to be life-threatening shall not exceed 48 hours.

2. Minor deficiencies, not affecting the health, safety, and well-being of participants, shall be noted and a reasonable and fair period of time, not to exceed 60 days, shall be granted for the correction and elimination of the deficiencies.

3. Unclassified deficiencies shall include the following:

a. Exceeding licensed capacity.

b. Providing services beyond the scope of the license.

c. Failure to correct a violation by the date set by the agency which therefore is a separate violation for each day such failure continues unless the center has an agency approved extension or has exercised the right to request a hearing under Chapter 120, F.S.

d. Continued operation of an unlicensed center exceeding 10 days after notification by the agency.

e. Failure to adequately maintain and provide access to required records.

(c) The center shall be responsible for informing the agency when deficiencies are corrected. The agency shall schedule and conduct reinspection visits with appropriate survey representation to assure compliance.

(d) The agency shall impose a fine for deficiencies in an amount not to exceed $500.00 for each survey deficiency and not to exceed $5,000.00 in the aggregate per survey.

(e) Administrative fines shall be imposed for deficiencies which are not corrected within the time frame set by the agency in its written notification and for multiple or repeated violations, as defined in Section 429.901(5), F.S.

(f) If a center appeals an agency action under this section, and the fine is upheld, the violator shall pay the fine plus interest of 12% per annum for each day that the fine remains unpaid after the day set by the agency.

(2) License denial, suspension, and revocation.

(a) A license shall not be granted to:

1. An applicant whose center has a major deficiency which remains uncorrected after the date set by the agency pursuant to paragraph 58A-6.014(1)(b), F.A.C.;

2. An applicant whose center has multiple and repeated violations which remain uncorrected after the date set by the agency pursuant to paragraph 58A-6.014(1)(b), F.A.C.;

3. Any person who has been convicted of a felony which would affect performance of duties and responsibilities in the operation of an adult day care center;

4. Any person who is under 18 years of age.

(b) Applicants denied a license shall be notified by certified mail and shall be given the specific authority for the denial.

(3) If a center has had no conditional licenses issued due to survey deficiencies within the 2 licensure periods immediately preceding the current renewal date, or if a center has had no confirmed complaints within the licensure period immediately preceding the inspection, the AHCA area office shall perform an abbreviated biennial inspection. However, the AHCA must conduct a full inspection if the center has a major deficiency identified during the abbreviated survey.

Rulemaking Specific Authority 429.929 FS. Law Implemented 429.929 FS. History–New 11-9-95, Amended 3-29-98, Repealed________.

NAME OF PERSON ORIGINATING PROPOSED RULE: Susan E. Rice, Asst. General Counsel
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Charles T. Corley, Interim Secretary, Department of Elder Affairs
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: July 20, 2011