The news was shocking; 14 elderly people died due to overheated conditions in a Hollywood, Florida nursing home after the air conditioning failed during hurricane Irma.
Acting quickly to avoid a similar tragedy, Governor Rick Scott signed an Emergency Rule dated Sept. 19, 2017, that mandated that nursing homes and assisted living facilities (ALFs) have generators installed for the purpose of running climate control systems that will maintain temperatures below 80 degrees during a power outage. The rule mandates that all facilities will submit in writing a comprehensive plan by Oct. 27, 2017, which is 45 days after the rule signing, be in compliance with the Emergency Rule no later than Nov. 15, 2017.
“That’s impossible!” said Joan Clarke, Administrator of The Isidora, a 4-bedroom, 3-bath house in a residential area of Spring Hill, with a capacity for six seniors. “That’s not enough time.”
Joan’s friends and colleagues also run small home-based ALFs. Kelly runs Serenity House, and Elaine runs Guardian Home. The Hernando Sun visited with all three while they met with a Generac representative for specific answers on their generator requirements. As we sat down, Kelly immediately passed on news that “The state’s already mailed out the stuff … they realized they’re never going to make the sixty days, so they’ve already sent out variance information.”
Joan said, “We shouldn’t even need a variance, because hurricane season ends next month.” The other two agreed. However, the emergency rule doesn’t contain such language, and specific dates are implied. However, the variance information does address time required to comply as being a valid reason for approval of the variance.
The Generac representative went on to say of the timeline, “Even if you ordered the generator today (October 26th), it would take me 6 to 8 weeks to get them.” The group also conversed about the demand created by the emergency order, and the reduced supply availability “when you have every (facility) in the state of Florida looking for one.” He further added that the back-to-back hurricanes Harvey and Irma has already caused a slowdown in generator production.
Failure to comply with the emergency rules will result in penalties including fines up to $1,000 per day and the possible revocation of a facility’s license. “We don’t have the money that these big facilities have.” Ms. Clarke said, and added that her some of her residents are on some form of state assistance that pays for their care, and she’s seen a reduction in payments over the last five years. “The state cuts how much we get paid, and they tell us we have to spend more money.”
It’s important to note that none of these facilities were without power during or after hurricane Irma.
After this article was written, there were new developments. On Oct. 27, the deadline that facilities without variances were to have their written plans submitted, an administrative-court order invalided the emergency rules. In a 66-page ruling, Administrative Law Judge Garnett Chisenhall said the state failed to demonstrate that the need to increase the self-sufficiency of nursing homes and ALFs is an “emergency.” Governor Scott vowed an immediate appeal.
In an article on October 30th, The News Service of Florida published an article in which Agency for Health Care Administration (AHCA) spokeswoman Mallory McManus confirmed the agency maintains that “the rules are in effect during the appeal process,” meaning that facilities are still scrambling to be in compliance and avoid penalties.
Emmett Reed, executive director of the Florida Health Care Association (FHCA), advised members that the agency “is moving ahead with permanent rulemaking; therefore providers should continue with their variance and emergency power plan submission until the stay and appeals process is exhausted.”
While the state agencies and courts deliberate, there exists the possibility that the current mandate is repealed altogether, and some facilities will have spent money and man-hours on compliance for an unenforceable and possibly unnecessary rule.