The Florida Health Care Association requested the use of the process in 2017 when then-Gov. Rick Scott’s administration pushed to require all nursing homes and assisted living facilities to have emergency generators and fuel on site. Scott started the push after Hurricane Irma knocked out the air-conditioning system at The Rehabilitation Center at Hollywood Hills, a Broward County nursing home. Authorities attributed as many as 12 resident deaths to sweltering conditions in the building. While a negotiating committee is expected to find agreement on a “mutually acceptable rule,” there is no requirement that the agency support the committee proposal. Bob Asztalos, a former lobbyist for the Florida Health Care Association, told the News Service that the association sent a written request to AHCA asking for negotiated rulemaking but was denied.
Though it’s rarely used, Florida law allows agencies to enter into a negotiated rulemaking process “when complex rules are being drafted or strong opposition to the rules is anticipated.” It’s not clear whether the agency also will rely on negotiated rulemaking to reach compromises on five other proposed regulations it withdrew this week, including proposed rules to set licensure standards for hospital-based pediatric cardiac care; comprehensive rehabilitation; substance abuse; and psychiatric programs.
Under the process, the agency is required to appoint a “committee of interested persons” and to publicly post the list of representatives. Anyone who is not invited to serve on the committee who feels like their interests aren’t represented has 30 days to apply to participate. The committee must be chaired by a neutral party, and its meetings must be publicly noticed. Two days after the proposed rule was withdrawn, a state administrative law judge dismissed the hospitals’ administrative complaints as moot. The Agency for Health Care Administration did not respond to The News Service of Florida’s requests for comment.
While Tampa General Hospital and the North Broward Hospital District, which operates as Broward Health, challenged the proposed rule, Palmetto General Hospital, Orange Park Medical Center and North Shore Medical Center supported the proposal and intervened in the legal case on behalf of the state. AHCA proposed the series of new licensure rules after the Repubican-led Legislature eliminated the longtime “certificate of need” regulatory process for hospitals. Hospitals, however, aren’t banded together on the proposed rule about neonatal intensive-care units that is set to be negotiated.
Former AHCA Secretary Justin Senior recalled that the negotiations were difficult, even though the long term care providers had a unified position on the rules. Ultimately, though, the nursing-home association met with the agency and other industry interests to hammer out controversial rules that required legislative ratification. The negotiations were behind closed doors.
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