TALLAHASSEE, Fla. – Long-term care providers squared off Thursday against Gov. Rick Scott's administration in a legal challenge to emergency rules that require nursing homes and assisted living facilities to have generators that can power air-conditioning systems for as long as four days.
In his opening remarks, Tallahassee attorney Steve Ecenia, who is representing the Scott administration, cautioned Administrative Law Judge Garnett Chisenhall that he would be “invited down a number of rabbit trails” related to building codes, emergency management plans and local government review processes. But he said those arguments were “red herrings.”
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“The emergency rules simply require these licensed facilities to take the steps necessary to ensure that they can shelter in place their frail and elderly residents and patients at temperatures at or below 80 degrees for 96 hours,” Ecenia said.
Industry groups LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum challenged the validity of the emergency rules, which were issued after eight residents of a sweltering Broward County nursing home died last month. Six more residents died later after being evacuated.
Hurricane Irma knocked out the air conditioning at the nursing home, The Rehabilitation Center at Hollywood Hills, which did not have a backup generator for the cooling system.
The industry groups have argued that the emergency rules are unrealistic, in part because the regulations would require installation of generators within 60 days. The challenges, filed at the state Division of Administrative Hearings and consolidated into one case, raise a number of arguments against the emergency rules.
The groups contend, among other things, that the state did not demonstrate an immediate danger to the public health, safety or welfare to support emergency rule-making and that the requirements are impossible to meet. Facilities say, for example, they need to get local approvals and upgrade electrical systems before being able to install the generators.
“There is no emergency that requires the imposition of an impossible deadline and the imminent revocation and imposition of fines on assisted living facility and nursing home licenses throughout the state,” LeadingAge Florida attorneys Seann Frazier and Marc Ito wrote in the organization's challenge. “The emergency rules would create an emergency rather than solve one.”
Meanwhile, shortly before the start of the scheduled two-day hearing, the governor's office released a new emergency rule that lays out a variance process for facilities that cannot comply with the generator requirements.
Each request for a variance must contain steps the facilities have taken to comply with the regulations and detail circumstances that prevent the facilities from meeting the requirements. Facilities also will have to provide information about arrangements they have made to fully carry out the requirements, with variances not exceeding 180 days.
Scott this week also directed the Agency for Health Care Administration and the Department of Elder Affairs to implement the backup-power requirements through the traditional rulemaking process, which allows for public meetings to discuss the plan as well as an appeal process. The governor also has called on the Legislature to put a generator requirement in state law.