Last year, reports of abuse and neglect in Florida’s assisted living industry prompted Governor Rick Scott to create a task force. The work from that group, coupled with a Grand Jury Report, formed the base of a series of reform bills that died in past legislative session. Now the Florida Department of Elder Affairs and its Secretary Charles Corley are trying to solve the issues by making rules.
“The Governor remained committed and a bit concerned that we couldn’t do anything through the session. So he asked all of us what it was we could do to move forward. That’s when we came up with the idea of looking at the existing rules—everything short of materially changing things in current law.”
Corley said his agency’s approach to coming up with solutions involves bringing together people with different interests to form a set of rules, called “negotiated rulemaking.” The bills that died in the legislature earlier in the year were tanked due to many of those competing interests. And even those within the agency, say they aren’t sure how the process will work out.
"These collaborative/consensus-based approaches only work if the members are willing to come together to find ways to reconcile competing interests…I should probably say that again. The members have to be willing to reconcile competing and conflicting interests," Susan Rice, an attorney with the agency told the panel of 15 people at the group's first meeting Tuesday.
The negotiating process gives more influence to non-agency parties, which doesn’t happen in a normal process. And the unusual approach taken by the department of elder affairs, coupled with the failed efforts to reform the assisted living industry, have advocates a bit pessimistic about how much the group will actually be able to do.
“We’re developing rules on a broken law that we know doesn’t work and doesn’t protect residents and their safety. So why do this now? Except for the fact that the industry, dominating this group, wants to identify the rules that are challenging to them as providers, not to residents," said Brian Lee, Florida's former long-term care ombudsman who says he was forced out of the job for cracking down on the elder care industry and is now suing the state.
Corley says he doesn’t want to place “burdensome regulations” on small businesses, which make up most of the assisted living industry, but also wants to protect residents.
“Our focus is on the residents, and serving the residents well. If we impose undue burdens on an industry that could have the manifestation of there to be fewer and fewer choice for consumers of facilities. And that’s not good either, so we have to strike a balance.”
The Department will hold a total of six rulemaking sessions between now and August. The 15-member panel includes seven state officials, representatives of four providers and associations, and four consumer advocates, one of whom works for the state. The Department wants to have something in place by the end of the year or before the start of the next legislative session.