AHCA Releases Draft Regulations on Memory Care Licensing for Florida Assisted Living Facilities

Key components of the draft regulations for the memory care services license include a 1:5 direct care staffing ratio at all times, licensed nurses administering medications to memory care residents, and treatment of advertising alone as a memory care licensure trigger. ALFs that serve or market to residents with Alzheimer’s disease or related dementias may wish to review the preliminary text while AHCA is receiving input.

Background

In May, the Florida Legislature enacted a new statute, 429.076 F.S., which requires an ALF that serves one or more “memory care residents,” or that advertises or otherwise holds itself out as providing memory care services, to obtain a memory care services license in addition to its standard ALF license. The statute exempts facilities that solely provide optional “supportive services” available to all residents, provided they comply with the AHCA’s advertising rules.

The statute requires the AHCA to adopt minimum licensure standards by June 1, 2027, covering policies and procedures, admission criteria, minimum care and activities, staff training, safety (including at least one awake staff member at all hours), physical plant, resident contracts, and restricted advertising terms. In practice, the law moves memory care from a marketing claim to a regulated specialty license: terms such as “memory care,” “dementia care,” and “Alzheimer’s care” may be used only by licensed memory care facilities, and licensed memory care facilities must deliver, document, and contract for the specific services they promise.

Proposed Regulations Overview

1.  When a Memory Care License Is Required

• Serving and advertising. A facility that serves as a memory care resident, advertises or holds itself out as providing memory care services, and provides specialized care to support the resident’s dementia must be licensed. 
• Advertising alone. A facility that is not serving memory care residents but advertises memory care services must obtain the memory care license. 
• Secured areas. Any facility serving memory care residents within secured areas under Section 464.4.6 of the Florida Building Code must be licensed, regardless of how it markets itself. 
• Exemption. Standard extended congregate care, and limited nursing services facilities that solely provide supportive services and do not advertise or hold themselves out as providing memory care services are exempt. 

2. Core Operating Obligations for Licensees

• Staffing. There must be one direct care staff member for every five memory care residents at all times, in addition to the existing minimum staff hours under Rule 59A-36.010(3), which requires every ALF to maintain a minimum number of  weekly staff hours based on its combined resident census (ranging from 168 hours per week for 0–5 residents to 539 hours per week for 86–95 residents, plus 42 hours for every additional 20 residents). Staff assisting with medications do not count toward the ratio while doing so. Direct care staff must remain awake and hold current first aid and cardiopulmonary resuscitation (CPR) certification.
• Training. Designated staff must complete Alzheimer’s disease and related dementias (ADRD) training under Section 430.5025, F.S. For ALFs that advertise and provide specialized dementia care, that statute requires employees to receive basic written information about dementia upon hire; employees who provide personal care or have regular contact with residents to complete a 1-hour training program within 30 days and an additional 3 hours of training within 3 months; employees who provide personal care to complete an additional 4 hours of dementia-specific training within 6 months; and those employees to complete at least 4 hours of continuing education each calendar year thereafter. The draft amendments to Rule 59A-36.011 reiterate that facilities must ensure staff receive training in accordance with such requirements.
• Medication. Memory care residents may not self-administer medication, and a licensed nurse must oversee and administer medications for residents who cannot understand their need for or purpose of their medications. Additionally, trained unlicensed staff may not assist memory care residents with medication.
• Policies and care standards. Facilities must develop and implement specific written policies and procedures that address residency criteria, services and staff positions, non-pharmacological responses to expressions of unmet needs, 24-hour supervision to prevent altercations and elopement, and dining. Required programming includes at least 20 hours per week of person-led therapeutic activities, documented visual rounds for residents who wander or have a history of elopement, and a hydration program offering fluids at least every two waking hours.
• Admissions and care planning. The administrator must determine that each memory care resident is appropriate for admission, and residents must have a face-to-face medical examination at least annually or after a significant change, whichever comes first. Before memory care services begin, the administrator or manager must prepare a preliminary service plan assessing whether the resident meets the facility’s residency criteria, the resident’s physical, psychological, and social needs and preferences, and the facility’s ability to meet those needs. Within 14 days, the facility must prepare a written service plan based  on the resident’s health assessment. The plan must be reviewed and updated quarterly, and the resident’s family member or representative must be invited to the review meetings. The facility must also keep monthly written progress reports on the type, amount, duration, scope, and outcome of services as well as the resident’s general health and well-being.
• Physical environment. In addition to the requirements of Rule 59A-36.014, which generally requires ALFs to meet applicable Florida Building Code and fire safety standards and to provide a safe living environment maintained free of hazards, a licensed facility must provide a physical environment that supports residents’ safety and welfare and addresses the specialized needs of residents with dementia, including elopement-risk design. Any delayed egress system used to prevent elopement must be tested monthly, with documentation of each test and any maintenance kept in the facility’s records and available for review on request. Facilities must offer unobstructed indoor and outdoor pathways suitable for wheelchairs, walkers, and residents who walk independently. Adaptive dining areas must support resident independence with adaptive seating, adjustable table heights, clutter-free tables, and non-glare dishware.
• Disclosure, contracts, and advertising records. Contracts must specify all memory care services and any additional costs. Admission materials must describe the distinguishing memory care services, and facilities must retain copies of advertisements for the AHCA’s review during licensure renewal. Admission and discharge logs must flag memory care residents and their non-memory care spouses residing in the same room.

Compliance Timelines and Transition

ALFs licensed before the effective date of the new rules would have six months after that date to obtain the memory care license. Under Section 429.076(5), F.S., a facility that cannot reasonably obtain the license may continue serving memory care residents accepted before the rules take effect only if it notifies residents and caregivers, assists with relocation on request, stops accepting new memory care residents, and amends affected contracts and records. No effective date has been set, and the AHCA must adopt the rules by June 1, 2027.

Next Steps

With the AHCA’s November 17 workshop approaching and the drafts still subject to change, ALFs may wish to consider several practical steps in response to the proposed regulations.

• Monitor the rulemaking. The draft regulations are preliminary. Watch the Florida Administrative Register for a Notice of Proposed Rule, which will include formal deadlines and may change the current text.
• Participate in the workshop and comment process. The AHCA’s workshop is November 17, 1:00 – 2:00 p.m., at 2727 Mahan Drive, Building 2, Conference Room F, Tallahassee (dial-in 1-850-792-4898, conference 439 687 789#). Written comments may be sent to HQARuleComments@ahca.myflorida.com. 
• Assess operations against the drafts. Some operators may find it useful to compare their current operations against the drafts, for example through a gap analysis covering staffing and scheduling, medication workflows and nursing coverage, activity programming, rounds and hydration documentation, delayed egress testing, and pathway and dining design.
• Audit advertising and resident documents. Facilities may also wish to review their advertising and resident documents, including websites, brochures, signage, social media, and referral listings, with an eye toward the restricted terms, as well as resident contracts, fee schedules, and admission packages, which may require updates under the drafts.
• Make a licensure decision. The drafts raise licensure questions that each operator may wish to explore, such as whether a given community would seek the license and what budget implications the operational changes may carry.