November 20, 2018

Emergency Rule for Equipment Used to Generate Electric Energy Renewed

Holland & Knight Healthcare Blog
Eddie Williams III

On Nov. 16, 2018, the Florida Department of Revenue renewed Emergency Rule 12AER18-02, which implemented Section 56, Chapter 2018-118, Laws of Florida, providing for a sales tax exemption for equipment purchased to generate emergency electric energy at nursing homes and assisted living facilities. Nursing homes and assisted living facilities across the state have been working to acquire and install the necessary generators, fuel and associated equipment in order to come into compliance with the Generator Rules (Rule 58A-5.036 and Rule 59A-4.1265) adopted by the Agency for Health Care Administration (AHCA) and the Department of Elder Affairs (DOEA). The Generator Rules require assisted living facilities and nursing homes to acquire an alternative power source and fuel to ensure that ambient air temperatures will be maintained at or below 81 degrees Fahrenheit for a minimum of 96 hours in the event of the loss of primary electrical power. Facilities that could not meet the original implementation deadline of Jun. 1, 2018 were granted an extension up to Jan. 1, 2019 to come into compliance. Those facilities requiring additional time beyond Jan. 1, 2019 to come into compliance with the Rules are required to obtain a waiver or variance to the Generator Rules.

Under Florida law, an emergency rule is generally only effective for a period of ninety days and can only be renewed under limited circumstances. But the Legislature expressly stated in Chapter 2018-118 that the Emergency Rule would be effective for six months and was renewable provided the Department had initiated rulemaking to adopt a permanent rule to address the same subject. On Sept. 14, 2018, the Department initiated permanent rulemaking on Proposed Rule 12A-1.097 to address the same topic as covered under the Emergency Rule.

Nursing homes and assisted living facilities are encouraged to take advantage of the tax benefit afforded by Chapter 2018-118 and the Department's Rule. Equipment purchased to generate emergency electric energy for use at a nursing home or assisted living facility during the period of July 1, 2017 to Dec. 31, 2018 is eligible for the sales tax exemption. The exemption is available at the time of purchase or through a refund filed with the Department on previously paid taxes.

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