Second Challenge Filed Surrounding Generator Equipment

Oct 2, 2017

A second industry group has filed a legal challenge against an effort by Gov. Rick Scott's administration to require nursing homes and assisted-living facilities to quickly install generators that can power air-conditioning systems.

The Florida Assisted Living Association, which represents more than 500 facilities across the state, filed the challenge this week in the state Division of Administrative Hearings. The organization LeadingAge Florida, which represents nursing homes and assisted-living facilities, filed a challenge earlier in the week.

At the direction of Scott, the state Agency for Health Care Administration and the state Department of Elder Affairs issued emergency rules to require generators after the deaths this month of residents of a Broward County nursing home that lost air conditioning because of Hurricane Irma. Under the emergency rules, nursing homes and assisted-living facilities have 45 days to submit plans that would involve acquiring generators to ensure temperatures could be maintained at 80 degrees or cooler for 96 hours after losing electricity.

Nursing homes and assisted-living facilities would have to carry out the plans within 60 days. But industry officials contend it is unrealistic to expect that nursing homes and assisted-living facilities could add generators in such a short period of time. Both challenges also contend the state did not follow proper administrative procedures in issuing the rules.

“Petitioner disputes that procedurally the agency (the Department of Elder Affairs) has promulgated a valid emergency rule, or that there exists an actual emergency,” said the challenge filed by the Florida Assisted Living Association. “No problem of any magnitude exists, but rather there was an isolated and unique problem with a single facility. Also, the agency cannot show that the perceived problem is new or emergent. To the contrary, the agency has been aware of the alleged regulatory issues for many years, but has never initiated valid rulemaking.”

Eight residents of The Rehabilitation Center at Hollywood Hills died and more than 100 residents were evacuated Sept. 13, three days after Irma knocked out the facility's air conditioning. Four more residents have subsequently died. After the LeadingAge Florida challenge was filed this week, Scott spokesman McKinley Lewis said the governor is focused on “saving lives. This association should focus solely on keeping seniors safe and not on lawsuits.”