23233457, 59AER20-3 - Florida Administrative Rules, Law, Code, Register

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Notice: 23233457

Notice of Emergency Rule

Department:

AGENCY FOR HEALTH CARE ADMINISTRATION

Division:

Health Facility and Agency Licensing

Overview

RULE:

59AER20-3

Mandatory Entry for Testing and Infection Control for Nursing Homes

SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE:

The Novel Coronavirus Disease 2019 (COVID-19) is a severe respiratory illness that can spread among humans through respiratory transmission.  According to the Centers for Disease Control and Prevention (CDC), people at risk for serious illness from COVID-19 include older adults and people with serious chronic medical conditions. In late 2019, a new and significant outbreak of COVID-19 emerged in China and the World Health Organization declared COVID-19 a Public Health Emergency of International Concern. The CDC also confirmed community spread of COVID-19 in the United States and has issued extensive written guidance to help control the spread of COVID-19. According to the CDC, at the time of this filing, the United States has over 1,100,000 total cases and over 70,000 total deaths. Older adults are at a higher risk of developing serious complications from COVID-19. According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation.

On March 1, 2020, Governor Ron DeSantis declared a Public Health Emergency exists in the State of Florida as a result of COVID-19 pursuant to Executive Order number 20-51. On March 7, 2020, the State Surgeon General and State Health Officer declared a Public Health Emergency in the State of Florida as a result of COVID-19. On March 9, 2020, Florida Governor Ron DeSantis declared a state of emergency in Florida. As of the date of this filing, all counties in Florida have positive cases for COVID-19. There have been over 37,000 confirmed cases in Florida as a result of COVID-19 and over 1,500 deaths. 

In guidance issued by the CDC titled Key Strategies to Prepare for COVID-19 in Long-term Care Facilities (LTCFs), the CDC directed that “[g]iven the high risk of spread once COVID-19 enters a LTCF, facilities must act immediately to protect residents, families, and staff from serious illness, complications, and death.” In order to carry out this guidance, the CDC further instructs facilities to, among other things, 1.) Keep COVID-19 from entering the facility and 2.) Identify the infection early. 42 CFR § 483.80 also requires nursing homes to establish an infection prevention and control program that must include a system for preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for staff.

Medical research shows the highly contagious COVID-19 virus can manifest as asymptomatic in positive individuals and the live, contagious coronavirus can shed at high concentrations before symptomatic development resulting in spread of the infection. Due to the congregate nature of long-term care facilities, the increased risk of transmission of COVID-19 is high. The highly transmissible nature of COVID-19 combined with the congregate nature of the long-term care facility settings and the close and personal contact that many long-term care facility staff have with the patients puts both residents and staff at a high risk of infection. Combining the high risk of long-term care facility settings with the risk posed by positive, asymptomatic staff creates a potential for sudden outbreaks in long-term care facilities.

The Department of Health and its agents, including the Agency for Health Care Administration, are working daily to respond to positive cases to avoid outbreaks at long-term care facilities. These agencies have been systematically conducting infection control investigations and testing staff and residents at nursing homes and assisted living facilities across the state to quickly identify positive cases in order to avoid viral spread and outbreaks. However, in multiple instances, facility staff have refused the Department of Health entry to the facility for the requested testing. A single positive staff member in a facility can cause an outbreak resulting in the hospitalization and death of many vulnerable residents. If the staff member works at multiple facilities, this can result in facility-to-facility spread. Early identification of positive cases in long-term care facilities allows the state to implement immediate action to control outbreaks and avoid the loss of life. 

Therefore, this emergency rule establishes a requirement that nursing homes must allow the Department of Health or its agents entry into the facility for purposes of COVID-19 infectious disease duties and testing and facilities must mandate that their staff comply with any COVID-19 testing offered by the Department of Health or its agents.  

Prompt implementation of this rule is necessary to ensure the health, safety and welfare of residents and staff in Florida’s nursing 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 outbreak of COVID-19. This emergency rule is necessary and fair to ensure the health, safety, and welfare of the facility residents, and provides at least the procedural protection given 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 requirement for all nursing homes to comply with Department of Health infection control directives concerning COVID-19, including allowing entry for purposes of testing, and requiring facility staff to submit to COVID-19 testing.

THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS:

Kimberly Stewart, Agency for Health Care Administration, Division of Health Quality Assurance, Bureau of Health Facility Regulation, 2727 Mahan Drive, MS# 28A, Tallahassee, FL 32308

PRINT PUBLISH DATE:

5/12/2020 Vol. 46/93

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=59AER20-3&PDate=5/12/2020&Section=4

REFERENCE MATERIALS:

No reference(s).

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