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FIRST DISTRICT COURT OF APPEAL ST ATE OF FLORIDA
FLORIDA ASSOCIATION OF HOMES AND SERVICES FOR THE AGING, INC. d/b/a LEADINGAGE FLORIDA,
Petitioner,
V.
1st DCA Case No. lDl 7-4024 Emergency Rule Nos: 58AER17-1 and 59AER17-l
AGENCY FOR HEALTH CARE ADMINISTRATION, DEPARTMENT OF ELDERS AFFAIRS,
Respondents. I ----------
APPENDIX TO RESPONDENTS' JOINT RESPONSE TO ORDER TO SHOW CAUSE REGARDING PETITION
FOR REVIEW OF EMERGENCY RULE
Stephen A. Ecenia Florida Bar No. 316334 J. Stephen Menton Florida Bar No. 331181 Tana D. Storey Florida Bar No. 514772 Craig D. Miller Florida Bar No. 101637 Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, FL 32301 (850) 681-6788 / (850) 681-65 15 Fax [email protected] [email protected]
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[email protected] [email protected] Co-Counsel for Respondent, AHCA
Tracy C. George, Chief Appellate Counsel William Roberts, General Counsel Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 [email protected] [email protected] Co-Counsel for Respondent, AHCA
Stefan R. Grow, General Counsel Fla. Bar No.: 93585 Jeanne Curtin, Senior Attorney Fla. Bar No.: 546712 Florida Department of Elder Affairs 4040 Esplanade Way Tallahassee, FL 32399 [email protected] [email protected] Co-Counsel for Respondent, Dept. of Elder Affairs
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of this Notice was served
via email on the following parties this 5th day of October, 2017:
Sean M. Frazier Marc Ito Parker, Hudson, Rainer & Dobbs 215 South Monroe St., Suite 750 Tallahassee, FL 32301 [email protected] [email protected]
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Isl Stephen A. Ecenia
Stephen A. Ecenia
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INDEX TO APPENDIX
Document Tab No.
Notice of Emergency Rule, Agency for Health Care Administration, Health Facility and Agency Licensing Rule 59AER17-1, Nursing Home Emergency Power Plan and Department of Elder Affairs, Federal Aging Programs, 58AER17-1, Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, 43 Fla. Admin. Reg., No 180, pp. 4002-4005 (Sept. 18, 2017) A
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Exhibit '' A''
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Flmid11 Ad,nlnlstrathie Register
!lelling 11tatus, or this rule {or certain provj5jons herein) ili replaced wjth a sub!iequcnt nde dcelarine iJi. obsolescence. whichever occurs first, except as provided in paragraph C2Kc) below.
fc) The Florida Lottery [CfiCryes lhc rjght to make a ca,e-by-ca.,;c determination a!I to whether the rctajlcr'!I DQJ1:fflling status is for n;m;ons not attributable to Hurricane Irma. Io whjch case the weekly s;ryicc charge will be asse.,;!ied in the regular manner,
m Ejcclrpnjc Funds Trani;fer {EFT) Delinquency Penalty. (al Except p.,; prgyidcd io paragrpph (3){bl below, a penalty
for an EFT delinquency a,,; set forth jn Ruic S3ER 17 -55. Florida Admini11tra1jyc Code, :;hall be wpjycd until such time gs the retailer rcgajne its selling status and is no longer prevented from making bank deposjls for rensoni. attributable to Hurricane Innn, or this rule for certain provisions herein) is replaced with a sub11egucnt rule des;laring it11 ohmlesccnce. whichever occurn fin;t, except a.,; provided jn paragraph C3Xbl below.
Cb) The Florida lottery rgcrlles the right tg make a ca.'le by-case detcnnination a.o; to whether an EFT delinquency pcnglty aliSC!l.'ICd to a retailer shall he wajved and whecher it shall be counted toward!! the number ofdc)jngyency returns jn a twelve;month period and a,;,'lOciated pcnaltje,,;. CExample; the retailer EFT delinquency occurrence ;., [Qr reams not attributable 10 Hurricane Irma,}
(4} Lost. Stolen or Damaged Instant Lottery Ticket Service Fees and Charges.
{ql Any ljCTVice fee for books ofScratch-0[ lottery tickets (also known as instant louery tlckeas) reponed as lost. stolen. or damaged ifi 5et forth in Ruic SJERQR-43, Florida Admjnistratiye Code. that wecs; jn received status as of September 8. 2017. shall be waived except as provided in pamgraph (4)(b) below.
Cb} The Florida lottery reserves 1he right to make a ca,;e-by-casc detennination as to whether the retailcrs reporting or inactjve lp;.L stolen, or damaged books is for rea.1;ons not attributable to Hurricane Irma, in which ca." the service fee wm be a1;.p1;ed in the regular manner.
(c) Active books of lo51. Solen or damaged tickets wm be handled in accordpnce wilh ,-ubsecdon (3) of Rule 53ER08-43, florjda Admjnistrutivc Code, cgcept as (ollOWJ!. If the ti mini: or circuJDtances surroundjng the reponing or stolen books are detennlned by the Florida l,ottery to be primarily attributable to Hurricane Inna, any g.,;sociatcd chargC!i will be waived.
Cd) The fee waiver set forth in thj5 subs;ctjon shaU remain jn effect un,11 such tjme a,11 this rule (or ccnain provisions hcrcjn) is replaced wjlh a subsequent rule declaring it,; obsalqcencc,
IS) Retailer Applicatjon Fee Change of Location. (a} The S10.QO fee for retailers that apply for a change of
Yo/ume 43, Number 110, Sqte111ber 18, 2011
locatjop a!i set forth in Rule S3ER17:42. Florida Administrative Code, shnll be wajvcd c15cci>t as provided in paragraph (S)(bl ~
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Florida Admlnistrath'f! Rtglstn-
REASON FOR CONCLUDING THAT THE PROCEDURE tS 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: mnssive destruction caused by Hurricane Irma, and it is essential to ensure as soon a.,; possible that temperatures in assisted living facilities are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection ghien by other statutes, the State Constitution, or the United States Constitution; and takes only that action necessary to protect the public interest under the emergency procedure. SUMMARY: This emergency rule establishes a process for the Department of Elder Affairs to ensure that licensees of &."ISisted living facilities develop and implement plans that ensure ambient tempcrntures will be maintained at or below 80 degrees Fahrenheit or les.o; fora minimum of ninety-six (96) hours in the C\.'Cnt of the lossofclcctrical power to an a.o;sisted living facility. THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS; Jeanne Curtin, Senior Attorney, Department or Elder Affair11. Office of the General Counsel. [email protected], (850}414-2096, 4040 Esplanade Way, Tallahassee. FL 32399. 7000.
THE FULL TEXT OF THE EMERGENCY RULE IS:
rn M1>jged living fgcjfilies &]Bil. within forty-five (45) days of the c[cc1ive date of 1hjs emergency rule prpyide, in wr,ting. 10 &he Department of Elder Affairs at ALFEMP@:..elderaffalr,org and to the local emergency management agency for review and pppmval, n detailed plan which iasludes the following criteria:
Cal The acquisition of a sufficient generator or ~uftjcjent generators to erurure that current Jjcengq of assisted living facHjtjes wm be equipped to ensure ambjent temperatures will he maintained at or below 80 degree, .. Fahrenheit for g mjnjmum gf njnety-sjx (96) hours jn the event or the toss of electrical ~
Cb) The acquisition and si fe maintenance of sufficient fuel to ensure that in the event of the Joi;s of electrical power the generators \Viti maintain ambient temperatures at or below RO degrees Fahrenheil for a minimum ofninetysix (96) hours after the; Joss of electrical power.
(c) The acquisi1ion of seryjce.o; neces!iaJY 10 install, maintqjn, pnd test the equipment and jts functions to ensure the safe and sufficient operation of the generator smem instalJed in !he assh;sed Jiving facility.
(2) Each a,1mj!lted Hving facility i.hnll, within sixty {60) days of the effective date of this rule, have implemented the plan required under this rule.
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Florida Adn1i11istram'f! Register
seniors reside in nursing homes in Florida. Ensurins that nursing homes maintain sufficient resources lo provide alternative power sources during emergency situations mitigates the concerns related to the health, safety, and welfare or l'C.'iidents in those nursing homes that experience loss of electrical power. This emergency rule establishes a process for certain nursing ho1nes to obtain sufficient equipment and rC!iources to ensure that the ambient temperature of the nursing homes will be maintained at 80 degrees or less within the facilitiei; for a minimum of ninetysix (96) hours in the event of the Joss of electrical power. Prompt implementation of this rule is necessary 10 ensure continuity of care and to ensure the health. safety, and welfare of rcsidenL'I of Florida's nunling homes. 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 massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in nursing homes arc maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Coni;titution; and takes only the action necessary to protect the public interest under the emergency procedure. SUMMARY: This emergency
