LAW360: Fla. Nursing Home Generator Rule May Be Untenable, For Now

By Carolina Bolado

Law360, Miami (October 12, 2017, 8:57 PM EDT) — After the deaths of 14 residents in a nursing home caused by power outages in the wake of Hurricane Irma, Florida regulators gave nursing homes and assisted living facilities 60 days to install new generators capable of providing four days of backup power, but experts say the time frame is unrealistic and doesn’t take into consideration costs and other issues.

Almost a month after Gov. Rick Scott issued an emergency rule requiring nursing homes and assisted living facilities to have working generators and 96 hours of fuel on hand for emergencies, the Agency for Health Care Administration on Thursday clarified that facilities need to keep to the 60-day compliance time frame in the rule.

The AHCA said a facility can request more time to comply with the rule when dealing with “extreme circumstances beyond a facility’s control,” but experts in the industry say facilities able to comply with the 60-day requirements will likely be few and far between.

“It depends a great deal on the size of the facility,” Bruce Lamb, head of the health care practice at Gunster, said. “Even if you jumped right on it with unlimited economic resources, it would take at least 60 days.”

And for most of the 3,000 or so nursing homes and assisted living facilities in the state, economic resources are not unlimited, according to George Indest, president and managing partner of The Health Law Firm.

He said a 120-bed facility, for example, will need a generator that costs between $300,000 and $500,000, while requiring a “gigantic” fuel tank. The facility would also need space it may not have — and may not be able to get — to house the generator and store the fuel, he said.

Add the fact that almost every nursing home in the state is in the market for a generator because of the regulation, and there’s a supply issue as well.

“Right now, trying to find a generator in Florida is almost impossible,” Indest said. “I doubt if it can even be done in 60 days.”

And if the facility can manage to procure and pay for a generator and fuel, and has a place to store both, it will still have to pull permits from city and county governments, a process that could take months, according to Indest.

The emergency rule, issued by Scott on Sept. 16, came after several residents of the Rehabilitation Center at Hollywood Hills LLC in Broward County died in the aftermath of Hurricane Irma, which made landfall on Sept. 10 as a Category 4 hurricane in the lower half of the Florida Keys and then cut a path north along Florida’s west coast.

Because of the storm’s massive size and the path it took, every major metropolitan area in Florida was affected, and more than 60 percent of homes and businesses in the state lost power.

The Hollywood facility, where 14 resident deaths are now attributed to the storm, is at the center of a statewide controversy over storm preparation by nursing homes. The nursing home was across the street from a hospital with power, but workers did not call 911 until after residents had spent three days without power, at which point many had dangerously overheated.

Almost immediately, the governor issued the emergency rule requiring generators, and state legislators introduced bills that would require licensed facilities to have an emergency power source.

Under the rule, a facility needs to be able to maintain its temperature at 80 degrees Fahrenheit for four days in the event of a power outage. If it does not have the required generator and fuel, the facility risks a $1,000-per-day fine.

But facility operators have chafed at the tight deadline they say is nearly impossible to meet. The Florida Health Care Association, an industry group of long-term and elder care providers, has said that it fully supports the goal of getting backup generators at all facilities, but that implementation must allow for achievable timelines.

“Experts have made it clear that the timeline that’s been put forth is simply not achievable,” Bob Asztalos, the FHCA’s lead lobbyist, said in a statement. “We have drafted changes to the rule and other recommendations that would give nursing homes and ALFs time and flexibility to meet the objective of keeping residents in a cool and safe environment during a disaster.”

LeadingAge Florida, another industry group, filed an administrative challenge to the rule on Sept. 26, arguing that emergency rules are “invalid exercises of delegated legislative authority” and that the state had failed to show the emergency rule was necessary. The group also objected to what it called “an impossible time frame.”

In addition to the administrative challenge, Florida Argentum Inc., which represents operators of assisted living facilities, filed a petition in the First District Court of Appeal against the emergency rule.

The petition points out that the generators and fuel tanks necessary for midsized to large facilities have to be designed by engineers and architects to meet building, zoning and safety requirements, which cannot be accomplished in two months.

“This is not a situation where an off-the-shelf generator can be purchased from a home supply store,” the petition said.

In a filing in the First District, the state’s Department of Elder Affairs defended its actions, saying that at the time the emergency rule was promulgated, two other hurricanes, Maria and Jose, had already formed and were posing a potential threat to Florida.

The aftermath of Irma showed that the emergency management plans that the state requires licensed facilities to have in place were not enough to prevent life-threatening conditions, according to the DOEA.

“Based on what had been learned as a result of Hurricane Irma, the department determined there was an immediate danger to the health, safety and welfare of Florida’s most vulnerable citizens requiring an emergency response to ensure that the state’s licensed ALFs had sufficient emergency power equipment in place to ensure continued operation of environmental controls to protect the health, safety and welfare of the residents they were obligated to shelter and protect,” the DOEA said in the filing.

On Tuesday, Scott directed the AHCA and DOEA to begin the formal process of making the rule permanent, a lengthy exercise that will involve extensive public comment and open meetings.

Scott added that he will be working closely with the Legislature to codify the rule into law and has asked the members of the Constitution Revision Commission — a once-every-20-years commission that is currently considering new amendments to the state’s constitution — to consider proposals that would address these facilities.

“We will continue to explore every possible avenue in our fight to keep all residents safe,” Scott said.

Attorneys who represent nursing homes and assisted living facilities expect their clients will be under greater scrutiny in the coming legislative session, which begins in January. Shannon Salimone, a health regulatory partner at Holland & Knight LLP, said she expects nursing home safety issues will be a hot topic in Tallahassee next year.

“If I got out my crystal ball, my guess is we’re going to see legislation requiring these facilities to have something in place by the start of the next hurricane season,” Salimone said. “My guess is the Legislature is going to look closely at this.”

–Editing by Philip Shea and Aaron Pelc.