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Nursing Homes Seek Variances From Generator Requirement

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Abe Aboraya/Health News Florida
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

As industry attorneys waged a legal battle over new rules that require nursing homes and assisted living facilities to have generators that can power air-conditioning systems, providers worried that they cannot meet the mandate by Nov. 15 are asking for variances from the rules.
Thirty-three providers requested variances Wednesday and Thursday, a review of state documents shows.

And that's just beginning, Florida Health Care Association spokeswoman Kristen Knapp says.

“Wait until next week,” says Knapp, whose association represents hundreds of nursing homes. “I suspect you are going to see a lot more.”

Gov. Rick Scott's administration last month issued the emergency generator rules after eight residents of a sweltering Broward County nursing home died following Hurricane Irma. 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.

But nursing homes and assisted living facilities have objected to the emergency rules because they were only given 60 days to comply. That has led this week to facilities seeking the variances.

Florida law says that the “strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results” and, as a result, agencies are authorized to grant variances and waivers to rules that cause a substantial hardship.

To clarify the existing variance process, the Scott administration Thursday issued another emergency rule that, in part, laid out information the Agency for Health Care Administration wants providers to include in the requests for variances.

The changes, however, do not mean the governor is backing off his power policy, the administration says.

“It has no effect on the emergency generator rule and its enforcement. AHCA has made it clear that they will enforce this rule aggressively, and they will continue to do just that.” Scott spokesman McKinley Lewis says.

Long-term care facilities are seeking the variances because the Nov. 15 compliance deadline is nearing, and facilities that aren't in compliance face steep penalties, including possible license revocation.

“They are working to comply,” Knapp said, but added that “there's just a lot of issues involved in installing generators.”

Industry groups LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum filed legal challenges to the validity of the emergency rules.

Attorneys spent a second day Friday in a hearing before Administrative Law Judge Garnett Chisenhall. The emergency rules require nursing homes and assisted living facilities to have enough power to keep ambient temperatures at 80 degrees for 96 hours.

Chisenhall has two weeks to issue an order.

Though the Agency for Health Care Administration has regulatory oversight of assisted living facilities, the Department of Elder Affairs is required to work with AHCA in drafting rules.

Catherine Ann Avery, bureau chief of elder rights for the Department of Elder Affairs, testified that she worked with the department's general counsel on the emergency regulations.

But during cross examination, attorney Amy W. Schrader, who represents Florida Argentum, referenced an email between the Agency for Health Care Administration and the Department of Elder Affairs and noted that the majority of the rule language was proposed by the agency.