VERIFIED (INTERIM) EMERGENCY PETITION FOR TEMPORARY VARIANCE FROM ENFORCEMENT OF CERTAIN REQUIREMENTS OF

Transcription

1 VERIFIED (INTERIM) EMERGENCY PETITION FOR TEMPORARY VARIANCE FROM ENFORCEMENT OF CERTAIN REQUIREMENTS OF 1) 58 AER-17-1: Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, AND 2) 59 AER-17-1: Nursing Home Emergency Power Plan TO: AND: COPY TO: PETITIONER: VIA Francis Carbone, Agency Clerk Florida Department of Elder Affairs 4040 Esplanade Way, Suite 315 Tallahassee, FL VIA EFILING at Agency for Healthcare Administration Bureau of Health Facility Regulation 2727 Mahan Drive MS #30 Tallahassee, FL VIA Joint Administrative Procedures Committee Room 680, Pepper Building 111 W. Madison Street Tallahassee, Florida Federation CCRC Operations Corp. d/b/a Toby & Leon Cooperman Sinai Residences th Avenue South Boca Raton, FL Pursuant to Section , Florida Statutes (2017), Petitioner, Federation CCRC Operations Corp. d/b/a both Health Center at Sinai Residences (as to its assisted living and skilled nursing facilities) and Toby & Leon Cooperman Sinai Residences of Boca Raton (as to its independent living facilities), a continuing care Florida not-for-profit corporation, by and through its undersigned attorneys, hereby requests an interim 1 emergency temporary variance from enforcement of the requirements of Sections 58 AER-17-1 and 59 AER-17-1, and in support thereof would show as follows: 1 Petitioner seeks an interim variance, because at this early date, it is unable to estimate, with any degree of accuracy, the timing and tasks to be completed in furtherance of Sections 58 AER-17-1 and 59 AER As more fully set forth herein, it will submit a supplement to this petition to better describe the actions to be taken and proposed associated timing, in furtherance of the Emergency Rules.

2 RULES FROM WHICH RELIEF IS SOUGHT Section 58 AER-17, Florida Administrative Emergency Rules: Procedures Regarding Emergency Environmental Control for Assisted Living Facilities, and Section 59 AER-17, Florida Administrative Emergency Rules: Nursing Home Emergency Power Plan (collectively, the New Emergency Rules ). CITATION OF THE APPLICABLE PORTION OF EACH RULE 58 AER-17-1(1)(b). The acquisition and safe maintenance of sufficient fuel to ensure that in the event of the loss of electrical power the generators will maintain ambient temperatures at or below 80 degrees Fahrenheit for a minimum of ninetysix (96) hours after the loss of electrical power. 58 AER-17-1(2). Each assisted living facility shall, within sixty (60) days of the effective date of this rule, have implemented the plan required under this rule. 59 AER-17-1(1)(b). The acquisition and safe maintenance of sufficient fuel to ensure that in the event of the loss of electrical power the generators will maintain ambient temperatures at or below 80 degrees Fahrenheit for a minimum of ninetysix (96) hours after the loss of electrical power. 59 AER-17-1(2). Each nursing home shall, within sixty (60) days of the effective date of this rule, have implemented the plan required under this rule. CITATION TO THE STATUTES THE RULES ARE IMPLEMENTING Pursuant to the text of 58 AER-17-1, the rule in question is implementing , , and Florida Statutes (2017). Pursuant to the text of 59 AER-17-1, the rule in question is implementing , , and Florida Statutes (2017). BACKGROUND FACTS Petitioner s facility has 234 independent living apartments, 48 assisted living units, 60 skilled nursing suites and 24 memory care suites. It presently has an operational 1000 kw diesel generator with a 6,000 gallon storage tank capacity capable of running for 100 hours at 75% of fuel consumption load and for 80 hours at 100% of load. The following items are set for back-up power in the event of normal power loss: life safety equipment, air conditioning in portions of the Memory Care unit, kitchen equipment, emergency lighting throughout, one (1) bank of elevators in the Independent Living unit, and two (2) banks of elevators in the Health Center. 2

3 Petitioner also has a generator-supported HVAC designated Area of Refuge in the memory care of assisted living facility, but recognizes that it needs to expand such Area of Refuge to comfortably house all assisted living residents and employees in a manner that is appropriate for the health, safety, and welfare of all. As well, in preparation for Hurricane Irma, Petitioner purchased four (4) temporary spot coolers, and these have been wired to the emergency generator for the benefit of the skilled nursing facility. In response to Hurricane Irma, Petitioner engaged the firm of Johnson, Levinson, Ragan, Davila, Inc., consulting engineers, to evaluate the performance of the buildings and facilities, and subsequently (as a result of the New Emergency Rules) to address mechanical and electrical engineering and plumbing design solutions for Petitioner s cooling systems to be adequately placed on back-up power to allow operation upon the loss of normal building power. These engineers are to prepare drawings and specifications for construction to accommodate revised cooling systems. Their report is expected on or before October 31, 2017, and implementation will proceed thereafter as immediately as is possible. Without having received the report, Petitioner cannot advise on its proposed actions and the timing thereof. Petitioner will, however, supplement this petition on or before November 30, TYPE OF ACTION REQUESTED Petitioner requests an interim variance from the New Emergency Rules until it can supplement this petition to advise with great certainly the full extension needed for a temporary variance, recognizing the 180-day limitation for full compliance. FACTS JUSTIFYING A TEMPORARY VARIANCE Completing the foregoing engineering and plumbing analysis, design and installation in a period of sixty (60) days is sufficiently challenging, but is significantly exacerbated by competition for engagement of professionals sought by every other assisted living and skilled nursing facility in the State of Florida, together with demands from others in Florida, Texas, Puerto Rico, and the U.S. Virgin Islands. Thus, Petitioner s ability to comply with the New Emergency Rules is severely handicapped. Moreover, enforcement of the unanticipated and expedited sixty (60) day deadline for compliance, without variance, violates principles of fairness. By allowing Petitioner additional time, the requested variance serves to ensure that the solution ultimately employed is supported by all necessary approvals, permits, and consents, and is lawfully, properly designed and installed by qualified professionals in such a manner as to achieve the intended result. Petitioner will suffer a substantial hardship as a result of the New Emergency Rules if it is not given a variance to implement the contemplated expansion of the Area of Refuge 3

4 and otherwise comply with the New Emergency Rules, and is subject to a per day fine for noncompliance. The approval of this variance will not substantially interfere with the purpose of the New Emergency Rules as Petitioner is moving toward full compliance, and the approval will not be injurious to the public health, safety, morals, and general welfare of Petitioner s residents and employees. Petitioner will communicate in writing to its residents (or legal guardian or health care surrogate, as applicable) its request for an interim temporary variance of the New Emergency Rules and the steps it is taking to comply with the New Emergency Rules on or before October 20, Petitioner s Verification attesting to the accuracy of the representations herein is attached to this petition. CONCLUSION WHEREFORE, Petitioner requests an interim temporary variance and an extension of time through November 30, 2017 within which to file a supplement in furtherance of Petitioner's compliance with the New Emergency Rules. Respectfully submitted this 16 th day of October, SQUIRE PATTON BOGGS (US) LLP 1900 Phillips Point West 777 South Flagler Drive West Palm Beach, FL Telephone: Facsimile: By: /s/ Traci H. Rollins Traci H. Rollins Florida Bar. No traci.rollins@squirepb.com Copy to: linda.parsons@squirepb.com Attorneys for the Petitioner /2/AMERICAS 4

5