January 23, 2018: Governor Rick Scott announced today that the Florida Health Care Association, Florida Senior Living Association, LeadingAge Florida and the Florida Assisted Living Association have agreed to support the Governor’s rule to have emergency generators to power their air conditioning units during emergencies. These associations, which represent thousands of nursing homes and assisted living facilities (ALFs) in Florida, have worked with the Agency for Health Care Administration (AHCA) and the Department of Elder Affairs (DOEA) through the rulemaking process and have agreed to drop their challenges against the agencies and work with their members to have emergency generators. Hundreds of nursing homes and ALFs in Florida have already agreed to follow the Governor’s rule and are working to install the necessary equipment. While the rule challenges against the currently proposed nursing home and assisted living facility generator rules have been dropped by all parties, these rules are still awaiting ratification by the Florida Legislature. The legislature must ratify these rules during the current legislative session.
Governor Scott said, “Following the tragic loss of life at the Hollywood Hills Rehabilitation Center last year, I immediately ordered our state agencies to require each nursing home and ALF in Florida to have emergency generators to keep their residents safe during a disaster. My goal throughout this process was to ensure that every facility in Florida can provide a safe environment for its residents. These rules accomplish this important goal by having generators and fuel supply resources at every nursing home and ALF in Florida.This is a big win for our state and makes Florida one of the first states in the nation to require emergency generators at nursing homes and ALFs. The bottom line is that we fought for residents and they will be safer because of these rules. I look forward to the legislature ratifying these life-saving rules.”
AHCA Secretary Justin Senior said, “We have put together a rule that we believe can help save lives. Nursing homes and assisted living facilities are homes for some of Florida’s most vulnerable populations, and these rules are vital to ensuring patient safety. We are glad that the hard work of Governor Scott and stakeholders will establish standards that will keep Florida’s vulnerable populations safe.”
DOEA Secretary Bragg said, “When Florida families make the decision to place their loved ones in long-term care facilities, they expect that they will be safe and well cared for at all times. Since September, our Department has been working to ensure the safety and welfare of Floridians in assisted living facilities during periods of prolonged power outage. We are glad that all parties were able to come together and create procedures that will ensure protection for these populations.”
Florida Health Care Association Executive Director Emmett Reed said, “The health and well-being of our state’s frail elders is our members’ number one priority. Our association has worked with Governor Scott, AHCA and DOEA since September on how our members can implement these important life-saving rules. We are glad that all stakeholders were able to come to the table, work together and agree to lasting policy that will keep residents and patients safe in Florida.”
Gail Matillo, President of the Florida Senior Living Association said, “Throughout this process, we have remained supportive of the Governor’s original intent – to ensure vulnerable Floridians are kept safe during emergency situations. We believe these rules will benefit both Florida seniors and the communities invested in providing them with quality living environments.”
Shad Haston, Chief Executive Officer of Florida Assisted Living Association said, “Our assisted living facilities are implanted in communities all over the state and ensuring resident safety has been a key issue since the storm this fall. Governor Scott was able to bring key stakeholders together, and work through the rules ensuring that facilities large and small will be able to implement them.”
Steve Bahmer, President and CEO of LeadingAge Florida said, “Ensuring the safety of Florida’s seniors has always been the primary goal of LeadingAge Florida and our members, and we appreciated the Governor’s leadership on this as Hurricane Irma moved through our state. The state has stayed in close contact with our association during the course of this process, and we support the implementation of these rules to ensure that Florida’s seniors are safe.”
With this agreement AHCA and DOEA have filed notice of change to the permanent nursing home and assisted living facility generator rules. The notice of change can be foundhere for nursing homes and here for assisted living facilities.
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!