In State of Fla., Dep't of Elder Affairs v. Fla. Senior Living Ass'n, Inc., Case No. 1D18-4140, 2020 WL 464618 (Fla. 1st DCA Jan. 29, 2020), the Florida First District Court of Appeal concluded that an administrative law judge erred in invalidating certain rules proposed and subsequently enacted by the Department of Elder Affairs. In its decision, the court found that the department had the rulemaking authority to enact the rules in dispute. Such rules mandate, among other things, for an assisted living facility to require that: 1) all residents be assessed for the risk of elopement by either a healthcare or mental healthcare provider within 30 days of admission to the assisted living facility and 2) employees be generally aware of the location of all residents assessed at high risk for elopement at all times. In addition, the rules require an assisted living facility with a limited nursing services license to have its employed or contracted nurse coordinate with third-party nursing services providers to ensure resident care is provided in a safe and consistent manner. The rules also incorporated a revised Form 1823, which is the health assessment questionnaire developed by Florida's Agency for Health Care Administration and completed by a licensed medical provider for purposes of assessing whether an individual is suited to live at the facility.
While this appeal was pending, the Florida Legislature transferred the powers, duties, functions and administrative authority of the Department of Elder Affairs pertaining to assisted living facilities to the Agency for Health Care Administration. Thus, the rules enacted by the Department of Elder Affairs have now been transferred to Chapter 59A-36 of the Florida Administrative Code. Assisted living facilities should ensure they have implemented policies and procedures that will bring the facility into compliance with the rules validated by the court. The failure to comply with the rules may result in citation of the facility for a deficiency and the imposition of a civil penalty.
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