58A-5.035. Waivers

(1) Application Process.

(a) Licensed assisted living facilities proposing a waiver 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 will only be considered for the objectives detailed in Section 429.41(4), F.S.

(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. If applying based on cost-effectiveness or cost-savings, 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, that may need resolution before 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; and

6. If applying based on cost-effectiveness or cost-savings, an annual budget projection for the proposed alternative 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) The agency must post notice of the request in the Florida Administrative Register within 15 days of receipt of the request. The agency must 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 must grant or deny the waiver request within 90 days after receipt of the original request, the last piece of additional information timely requested by the agency, or the requestor’s written request to finish processing the waiver request.

(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. Waivers may be granted only so long as there is reasonable assurance that the health, safety, and welfare of residents will not be endangered by the waiver.

(4) The agency must grant or deny the request for waiver and enter an order summarizing the facts relied on and the reasons supporting its decision. The agency must provide notice of its order in the Florida Administrative Register. The notice shall contain the name of the requestor, the date the request was filed, the rule number and nature of the rule from which the waiver is sought, a reference to the place and date of publication of the notice of the request, the date of the order denying or approving the waiver, the general basis for the agency’s decision, and an explanation of how a copy of the order may be obtained. The requestor must 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. 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 will be renewed or revoked. The agency must make the determination based on whether the facility has met the requirements outlined in paragraph (1)(b) of this rule. The agency must 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 that 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, must assess whether statutory or regulatory changes should be pursued to enable other facilities to adopt the same practices.

Rulemaking Authority 429.41 FS. Law Implemented 429.41 FS. History–New 9-30-92, Formerly 10A-5.035, Amended 10-30-95, 7-1-08, 4-17-14.