Law360, Miami (October 19, 2017, 8:59 PM EDT) — A Florida appeals court on Thursday denied three petitions requesting review of an emergency rule giving nursing homes and assisted living facilities 60 days to install generators capable of providing four days of backup power.
In a two-sentence order, Florida’s First District Court of Appeal consolidated and denied the three petitions for review of the emergency rule that was issued Sept. 16, after residents of a Broward County nursing home died in the aftermath of Hurricane Irma.
The appeals court said it would issue an opinion explaining its reasoning at a later date. Judges Harvey L. Jay and M. Kemmerly Thomas were in the majority on the split decision, with Judge James R. Wolf dissenting.
Gov. Rick Scott hailed the decision and said the Agency for Health Care Administration will continue to aggressively enforce the rule to protect Floridians.
“The ruling from the First District Court of Appeal today reaffirms our position that the top priority of nursing homes and assisted living facilities should be protecting the lives of their patients,” Scott said in a statement. “Currently, AHCA is working to make this important emergency rule permanent through a public rule making process, and we will work with the Legislature to further protect patients.”
The appeals court’s review of the petitions was limited to just the AHCA’s statement on the rule to determine whether or not there was an emergency justifying the use of emergency rules. With this order, the majority appears to have determined that the agency sufficiently stated an emergency existed warranting the rule.
The emergency rule is also being challenged in the Division of Administrative Hearings, where a trial was held last week on the merits of the rule and a decision from an administrative law judge is expected by next Friday.
Sandi Poreda, a spokeswoman for Florida Argentum Inc., which represents operators of assisted living facilities and filed one of the petitions with the First District, said the organization will continue to pursue an administrative challenge in hopes of getting relief for members struggling to meet the tight timeline.
“It’s important to know that our members fully support the governor’s intent to protect vulnerable seniors during disasters,” she said. “Our concern is that the 60-day timeline is not sufficient to complete the requirements safely or efficiently.”
Attorneys for the other challengers either declined to comment or could not be reached Thursday.
The storm-related death toll from the Rehabilitation Center at Hollywood Hills LLC in Broward County, Florida, has climbed to 14 in the weeks since Hurricane Irma made landfall in the state on Sept. 10. 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.
LeadingAge Florida, another industry group, argued in its petition in the First District that emergency rules are “invalid exercises of delegated legislative authority” and that the time frame was impossible to meet. In a separate petition, Florida Argentum pointed 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.
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.
Florida Argentum is represented by Amy W. Schrader and Kelly Overstreet Johnson of Baker Donelson Bearman Caldwell & Berkowitz PC.
LeadingAge Florida is represented by Seann M. Frazier of Parker Hudson Rainer & Dobbs.
The Florida Assisted Living Association is represented by M. Stephen Turner of Broad and Cassel.
The DEOA is represented by Stephen A. Ecenia, J. Stephen Menton, Tana D. Storey and Craig D. Miller of Rutledge Ecenia PA, and in-house attorneys Stefan R. Grow and Jeanne Curtin.
The cases are Florida Association of Homes and Services v. Agency for Health Care Administration, case number 1D17-4024; Florida Assisted Living Association Inc. v. Florida Department of Elder Affairs, case number 1D17-4025; and FL Argentum Inc. v. Florida Department of Elder Affairs, case number 1D17-4102, all in the First District Court of Appeal of Florida.
–Editing by Jack Karp.