Generator Rules Await Legislative Action

Source: News Service of Florida, February 13, 2018 

TALLAHASSEE – With time ticking on this year’s session, it’s not clear if Gov. Rick Scott is going to convince the Florida Legislature to ratify a pair of rules requiring nursing homes and assisted living facilities to have backup generators.

More than halfway through the regular 60-day session, the rules negotiated by the Scott administration and the long-term care industry still await needed legislative ratification. The delay stems from increased costs associated with the requirements, especially for assisted living facilities, lobbyist and lawmakers acknowledge.

“We clearly are going to do something with nursing homes,” House Health & Human Services Chairman Travis Cummings, R-Orange Park, said Tuesday when asked about the generator requirements. “The ALFs are the part we are working through.”

John Tupps, a spokesman for Scott, said the rules are important “to protect life safety of some of Florida’s most vulnerable citizens” and that the governor’s office has been “actively working with the Legislature on the issue. “

“The governor is glad that hundreds of nursing homes and ALFs in Florida have already agreed to follow the rule to install the necessary life-saving equipment,” Tupps said in an email to The News Service of Florida. “Governor Scott will never stop finding ways to protect vulnerable Floridians and the elderly, especially during natural disasters.”

Two proposed rules await ratification, one applying to assisted living facilities, the other to nursing homes. Under the compromise reached between the long-term care industry and the governor’s office, nursing homes and assisted living facilities would be required to have generators, but the generators wouldn’t have to be installed, which means they can be portable.

Nursing homes would be required to be able to keep an ambient temperature of 81 degrees and to have onsite 72 hours of fuel but have the capability of tapping into another 24 hours worth of fuel in case of a declared emergency.

The Scott administration initially proposed requiring 96 hours of fuel.

The new ALF rule, meanwhile, would require facilities with 16 or fewer beds to keep onsite 48 hours of fuel and homes with 17 or more beds to have onsite 72 hours of fuel, unless barred by local ordinances.

The rules were agreed to in January and brought an end to legal wrangling between the governor’s office and long-term care providers. The legal battles started after Scott’s administration issued a pair of emergency rules following the deaths of nursing home residents at The Hollywood Hills Rehabilitation Center following Hurricane Irma. The storm knocked out the Broward County facility’s air-conditioning system, which led to sweltering conditions.

Florida Health Care Association lobbyist Bob Asztalos has been working to get the Legislature to ratify the rules, saying they provide clarity the industry needs headed into the 2018 hurricane season, which begins June 1.

“If the rules aren’t ratified,” he predicted, “you’re going to have turmoil out there, and we don’t want turmoil.”

The Florida Health Care Association is a nursing-home trade group. Nursing homes, which treat Medicaid patients, may be able to get the costs of generators offset or paid for by Medicaid, which helps cover health-care costs for poor, elderly and disabled Floridians.

Unlike nursing homes, assisted living facilities don’t participate in the Medicaid program and, therefore, aren’t eligible to have the costs of the generators offset by the program. Though the House hasn’t provided specific funding to nursing homes for generators, the issue is in the proposed Senate budget. It’s a difference the chambers will have to hammer out as they finalize a spending plan for the 2018-2019 fiscal year.

“I’ve got concerns related to the impact on the ALF community and the providers which are very diverse in size and their situations,” Cummings said. ‘And from what I can tell, those concerns are shared by others.”

ALFs could be able to tap into sales-tax exemption for generators that is included in a $322 million tax package the House Ways & Means Committee is expected to introduce Wednesday.

The tax package would also allow nursing homes to get the tax break on generators, but Cummings indicated allowing the tax break in addition to having Medicaid offset generator costs wouldn’t be right.

“I’m not sure if ‘double dipping’ is the right word,’ he said. “I have to firmly evaluate that to see if that’s what our intent is, to help them with a tax break as well.”

A regulatory cost analysis from January showed that it would be a minimum of $14.7 million for the 1,568 smallest ALFs and another $87.5 million for the largest ALFs, or those with 100 beds or more, to comply with the mandates. The costs for compliance for 577 nursing homes is an estimated $108 million.

Cummings said the Health & Human Services Committee will have a proposed bill on the generator rules next week. That would give the chamber about 15 days to move the bill through the process and get the Senate to sign off before the scheduled March 9 end of the session.

Since 2010, any rule that increases the costs of regulation by $1 million over a five-year period has required legislative ratification to take effect.

The Senate Health and Human Services Appropriations Subcommittee on Wednesday will consider a bill by Sen. Kathleen Passidomo, R-Naples, that would change parts of state law to require nursing homes and assisted living facilities to have by June 1 an operational power source and fuel to sustain an air temperature set in rule for at least 96 hours. It also would require that each facility have a plan to monitor residents to ensure that they do not suffer from complications from heat exposure and a plan to safely transport residents.                              

But the bill (SB 1874) wouldn’t ratify the rules like the administration and the long-term care industry wants.

Katie Betta, a spokeswoman for Senate President Joe Negron, R-Stuart, said the generator issue still is a priority in the Senate.

“There are a number of senators who are concerned about this issue, and it was discussed extensively in committees during the Senate’s interim committee weeks,” she said. “Senators are continuing to work on this issue and to move their bills through the process.”