Florida Argentum Reports That Appeals Court Strikes Down Emergency Stay in Generator Case

Florida Argentum reports that the Florida’s First District Court of Appeal issued a response to its motion filed last week and determined that an “automatic stay” of the Division of Administrative Hearings’ Final Order invalidating Emergency Rule 58AER17-1 does not exist during the appeal.  Florida Argentum has interpreted the ruling to mean that the Emergency Rule is invalid and is not in effect as of October 27, 2017, the date the Final Order was issued. The Agency for Health Care Administration (AHCA) and the Department of Elder Affairs (DOEA) cannot legally enforce compliance with the Emergency Rule.

Based on our reading of the ruling, we do not believe this is clear.  The court ruled that the appellant (Florida Argentum) failed to prove that the rule is in effect and thus denied the motion.  This is not the same as ruling directly that the rule is not in effect, so we would not suggest any owner or operator rely on this ruling to not comply with the emergency order.

Further, even if Florida Argentum’s interpretation is correct, while this provides short-term relief from the threat of fines and facility closure for no-compliance, owners and operators should keep in mind that there will be proposed rules and proposed legislation that will address the need for generators during power outages. Both AHCA and DOEA will officially be filing proposed rules for emergency generator power tomorrow.

A hearing will be held on the new proposed rule on December 5.  This rulemaking procedure is different from the emergency rule process, as the (to be) proposed rule will not be in effect until interested parties have had an opportunity to participate in the process.

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