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Judge Rejects Emergency Generator Rules


Gov. Rick Scott on Friday vowed to immediately appeal an administrative-court order invalidating a pair of emergency rules requiring nursing homes and assisted living facilities to have generators and enough fuel to cool buildings for 96 hours.

In a 66-page ruling, Administrative Law Judge Garnett Chisenhall said the state failed to demonstrate that the need to increase the self-sufficiency of nursing homes and ALFs is an “emergency.”

“Furthermore,” Chisenhall wrote in the final order, “the greater weight of the evidence demonstrates that remedies for the described `emergency' cannot be implemented by the November 15, 2017, deadline imposed by the emergency rules.”

McKinley Lewis, a spokesman for Scott, said the administration will appeal the order. Lewis called the order “short-sighted” and said the governor will “continue to work with the Florida Legislature to make the rules permanent.”

“We will not let special interests get in the way of these life-saving measures,” he said.

The group LeadingAge Florida represents 150 assisted living facilities and nursing homes and was one of three statewide associations that challenged the rule. Steve Bahmer, president and CEO of LeadingAge Florida, said his group was “pleased with the favorable ruling.”

The Scott administration issued the emergency rules last month after eight residents of The Rehabilitation Center at Hollywood Hills died Sept. 13, three days after the Category 4 Hurricane Irma hit the state. Irma knocked out the Broward County nursing home's air conditioning.

Six more residents died after being evacuated from the sweltering facility.

The emergency rules immediately drew opposition from nursing homes and ALFs, at least in part because the rules required the installation of generators within 60 days. Industry officials said that timeline was unrealistic.

Emergency rules are valid for only 90 days but don't need to be passed in the traditional rulemaking process, which can take months or even years. Generally, emergency rules cannot be renewed.

For a state agency to issue an emergency rule, there must be an immediate danger to the public health, safety or welfare.

During a two-day hearing on the rule challenge this month, Agency for Health Care Administration Deputy Secretary Molly McKinstry testified on behalf of the state, noting that 243 nursing homes and 792 ALFs reported power outages to the state following Hurricane Irma but that the numbers of providers without power was likely higher.

McKinstry also testified that the large numbers of elderly people living in the state and the fact that they are more prone to heat-related health problems were justifications for the emergency rules.

But in his order, Chisenhall wrote that “the presence of elderly populations in Florida is not an emergency situation” and that heat-related health problems for the elderly was not new or emerging.

AHCA and the Department of Elder Affairs also both cited an “incompetent response” by The Rehabilitation Center at Hollywood Hills as a reason for the emergency rules.

But Chisenhall said there was “no evidence at the final hearing indicating that the tragic situation at Hollywood Hills was representative of the situation at any other facilities. The fact that there were no similar incidents at any of the multitude of other nursing homes and ALFs affected by Hurricane Irma suggests that it was not.”

Moreover, the judge noted that the state's argument that an emergency existed was undermined by the fact AHCA Secretary Justin Senior “invited facilities to consider applying for a variance almost immediately.”

Aside from the emergency dispute, the challengers also argued that the rules were arbitrary, capricious and vague and that the agencies overstepped their authority --- points that Chisenhall agreed with.

“The emergency rules failed to address numerous questions pertinent to a nursing home or ALF's compliance. Even after publication of several questions and answers, important questions regarding compliance with the emergency rules remain unanswered,” he wrote. “Given that noncompliance with the emergency rules `shall' result in licensure revocation and daily fines of $1,000, the emergency rules fail to establish adequate standards to govern AHCA and DOEA's (the Department of Elder Affairs') decisions.”

The penalties laid out in the emergency rules also contravene state laws that the rules were intended to carry out, Chisenhall noted.

Florida law requires that the state assign nursing-home and ALF violations in classes ranging from Class 1 to Class 4.

A Class 1 deficiency is anything that the state determines presents a situation in which immediate corrective action is necessary because the facility's noncompliance has caused, or is likely to cause, serious injury, harm, impairment or death to a resident.

The emergency rules, though “make no effort to classify non-compliance” and therefore, Chisenhall wrote, conflict with “one of the statutes it purports to implement.”

Chisenhall said that violating the rules would trigger a Class 1 violation but noted that the penalties in the emergency rules didn't mirror the penalties in state law.

Joining LeadingAge Florida in challenging the rules were the Florida Assisted Living Association and Florida Argentum, both of which represent ALFs.

All three associations have also filed petitions asking that the state pay their attorney fees.

Friday's order came little more than a week after the 1st District Court of Appeal ruled in favor of the Scott administration in a separate challenge. The appeals court rejected arguments that Scott's administration did not show legal justification for issuing the emergency rules.

But the decision did not determine the overall validity of the rules, which was being weighed in the administrative case before Chisenhall. Instead, the appeals-court decision dealt with justification for handling the generator requirements as an emergency matter.