Update: Florida’s Emergency Generator Rules

In September 2017, Florida Governor Rick Scott issued emergency rules requiring all nursing homes and assisted living facilities (ALFs) to install generators capable of powering air conditioning systems for 96 hours within 60 days, and required facilities to maintain sufficient fuel to run the generators for 96 hours onsite. Facilities that were unable to meet this deadline could be subject to $1,000 per day fines and possible license revocation. The overwhelming consensus by industry experts was that it would be impossible for the majority of ALFs to obtain and install generators and fuel storage tanks in compliance with the emergency rule by the stated deadline.

Within two weeks, Florida Argentum – now the Florida Senior Living Association (FSLA) – challenged the emergency rule to protect ALFs from unreasonable enforcement action. The chief concern was a lack of sufficient time to safely and responsibly work toward installation of back-up generators and fuel storage systems. The association, backed by its national counterpart, was successful and an administrative law judge ruled the emergency rules were invalid, noting that a preventable tragedy at one facility did not create an industry-wide emergency that required such immediate action. Despite his ruling, the state maintains the rules are in effect while it appeals the order.

Because of the resulting confusion and uncertainty, most facilities rushed to request additional time to comply, although a number of facility operators have indicated that the resulting 180-day extension is still insufficient as generator production and installation times continue to increase due to already high demand by facilities in Southeast Texas and Puerto Rico. For facilities without an approved variance, the state has threatened to impose fines of $1,000 per day and possible license revocation.

Additionally, the state is working to make the requirements of the emergency rules permanent through the rulemaking process. It estimates the costs of compliance could range from $14,000 to $550,000 per facility, resulting in a collective total cost of approximately $280 million for the state’s assisted living facilities.

The proposed rule, along with a companion rule applicable to nursing homes, has been heavily criticized by both the senior living industry and local emergency management officials responsible for reviewing emergency power plans. Concerns include the failure to define the amount of space within each facility that must be cooled in the event of power loss; the lack of specificity as to fuel storage requirements; the failure to account for facilities with plans to evacuate versus sheltering in place; the lack of statutory authority for local emergency management agencies to review emergency power plans required under the new rules; and insufficient time for compliance.

Provisions of the proposed rules also differ from requirements under the emergency rule, creating a moving target for eventual compliance. At a rule hearing in December, industry members, including the Florida Senior Living Association, again expressed frustration that the state was not listening to their concerns.

The Florida Legislature’s Joint Administrative Procedures Committee (JAPC) cited significant issues with the proposed rules and sent the state a letter requesting legal justification for requiring emergency power plans in addition to the comprehensive emergency management plans currently required by statute. JAPC also asked the state to explain what authority allows state agencies to direct activities of the State Fire Marshal and noted the proposed rules appear to give the state’s Agency for Health Care Administration too much discretion to impose penalties for non-compliance.

Despite the many criticisms leveled at the proposed rules, the state refused to make any changes to the rule language and indicated the rules would be filed for adoption before the end of 2017, after which they would need to be approved by the state legislature because of the enormous estimated regulatory cost for the industry prior to becoming effective.

To prevent adoption of the proposed rules, FSLA filed a rule challenge on behalf of its members on December 15, 2017, raising the same concerns previously voiced to the state and its agencies. Should FSLA again prevail in its challenge, the state will be required to withdraw the proposed rule. In the interim, the state has renewed the emergency rule, but it remains to be seen whether adverse action will be taken against non-compliant facilities while both the emergency rule and proposed rules are actively being challenged.

Given the high level of interest in this issue and the fact that several legislative proposals have been filed to address emergency power requirements for senior living facilities, it is likely that the Florida Legislature will weigh in during the legislative session. The FSLA is currently working with legislators to help ensure adoption of reasonable standards that can be implemented responsibly to protect Florida’s seniors, which means emergency generator requirements will probably not be finalized before the end of the legislative session on March 9. FSLA will keep our members posted!