Could There be Some Flexibility in Governor’s Nursing Home Generator Order

by | Oct 13, 2017

The Florida Agency for Health Care Administration says it still expects nursing homes to comply with Gov. Rick Scott’s order to have generators installed within 60 days, despite posting a notice on its website that says variances could be given to facilities with “extreme circumstances.”

The agency posted a rule Thursday outlining steps that nursing homes, that are facing circumstances beyond their control, could take to receive a variance.

“This does not repeal or modify the requirements of the Emergency Power Plan Rule,” the statement said.

“Nursing homes and assisted living facilities are still required within 60 days of the rule being published to have working generators and 96 hours of fuel to keep patients safe and comfortable.”

Scott issued the emergency order following the deaths of 14 residents at the Rehabilitation Center at Hollywood Hills after Hurricane Irma hit the state last month, knocking out power to the facility. The center had a generator but it was not hooked up to the facility’s air conditioners.

With no air conditioning, temperatures inside the center climbed and conditions were reported to be sweltering. Eight residents died on Sept. 13 forcing the evacuation of the nursing home. The six other deaths occurred in the days that followed.

The governor ordered nursing homes to have generators in place with a sufficient amount of fuel to be able to maintain temperatures of 80 degrees or cooler for 96 hours after the loss of electricity.

Under the order, facilities that don’t comply could be fined $1,000 a day.

The Florida Health Care Association, which represents many of the state’s nursing homes and long-term care facilities, says it continues to share the goal of Gov. Scott and welcomed the news that the state would be open to granting variances in some extreme cases.

“Our members are working to comply with the Governor’s call for emergency generators, but they face numerous compliance challenges beyond their control,” the association said in a statement issued Friday morning. “On average, it takes a nursing center between six months and two years to complete the construction and permitting processes to properly install an effective generator.”

“We want to ensure residents are cared for safely in a disaster, but we do not want to fix the problem of heat stroke by putting residents at risk of carbon monoxide or fire because of work that is rushed or unsafe,” the FHCA said. “The waiver of the regulatory process will give our members time and flexibility to meet the objective of keeping residents in a cool and safe environment during a disaster while eliminating any chance of putting them at risk of unintended consequences.”

AHCA’s statement says the agency still expects most nursing homes to comply with the emergency order, but will grant waivers in certain circumstances.

“Each variance request must contain: steps the nursing home has taken to implement the rule, specific circumstances beyond the facilities control that have prevented full implementation, what arrangements have been made to fully implement the rule, a plan to inform residents and their families of the variance request, and an estimated time of full compliance with the rule,” the agency said.

In an email sent Friday afternoon, the Governor’s Office insisted Thursday’s rule posted on AHCA’s website was not a change in policy. It said the state plans to aggressively enforce Scott’s nursing home generator order.

“The rule variance notice issued by AHCA only outlines what is already in existence in Florida law. It has no effect on the emergency generator rule and its enforcement,” said McKinley Lewis, the governor’s deputy communications director. “AHCA has made it clear that they will enforce this rule aggressively, and they will continue to do just that.”

Meanwhile, a hearing was held Thursday on a challenge filed by other nursing home groups: LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum.

Those groups filed their challenge with the state Division of Administrative Hearings charging that the requirements of the order, specifically the 60 day time frame to have the generators installed, are unrealistic.

“There is no emergency that requires the imposition of an impossible deadline and the imminent revocation and imposition of fines on assisted living facility and nursing home licenses throughout the state,” LeadingAge Florida attorneys wrote in their challenge. “The emergency rules would create an emergency rather than solve one.




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