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Nursing Homes Can Seek Variances From Generator Rules

Westwood Nursing and Rehabilitation Center
Staff at the Westwood Nursing and Rehabilitation Center in Fort Walton Beach, Fla., and firefighters, load Hurricane Irma evacuees onto a bus on Wednesday, Sept. 13, 2017.

Shortly before attorneys for the state prepared to defend emergency regulations calling for nursing homes and assisted living facilities to have generators that can power air-conditioning systems, Gov. Rick Scott's administration Thursday released a new emergency rule that lays out a variance process for facilities that cannot comply with the requirements.Under the new rule, 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.

In a news release announcing the variance rule, the Agency for Health Care Administration stressed that the latest directive does not negate the requirements in the Sept. 16 emergency rules, which gave facilities 45 days to submit their proposed plans to meet the generator mandate and 60 days to comply.

Nursing homes and assisted living facilities have contended the 60-day timeframe is unrealistic, with cost estimates upward of $350,000 to install a generator large enough to provide air conditioning for a 120-bed nursing home.

Industry groups LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum have challenged the Sept. 16 rules in the state Division of Administrative Hearings. An administrative law judge has scheduled a two-day hearing on the challenge, with Thursday the first day of testimony.

In addition to challenging the emergency-power rules in the Division of Administrative Hearings, the groups also launched challenges in a state appellate court.

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.

Scott issued the emergency rules following the deaths last month of eight residents at The Rehabilitation Center at Hollywood Hills in Broward County. Hurricane Irma knocked out a transformer at the Hollywood-based nursing home Sept. 10. The sweltering building was evacuated Sept. 13, the same day eight residents died. Six evacuees from the home have subsequently died.

The Agency for Health Care Administration swiftly filed a moratorium to prevent new admissions at the facility, suspended its license and moved to eliminate the nursing home from the Medicaid program.

The Rehabilitation Center at Hollywood Hills is challenging those actions in a lawsuit pending in Leon County circuit court.