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Uncertainty Surrounds Generator Rules Amid Appeal

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Long-term care providers are receiving conflicting messages about whether they have to comply with a Tuesday deadline in a state attempt to require emergency generators, but an administrative law judge says he doesn't have the power to help clear up questions.
Administrative Law Judge Gar Chisenhall on Friday issued a 66-page final order invalidating two state emergency rules that called for nursing homes and assisted living facilities to quickly add generators to run air-conditioning systems. Gov. Rick Scott's administration appealed the order to the 1st District Court of Appeal and said the rules remain in effect during the appeal.

Industry groups Florida Argentum, which represents assisted living facilities, and LeadingAge Florida, which represents nursing homes and assisted living facilities, filed a joint motion Monday asking Chisenhall to clarify whether the emergency rules are put on hold during the appeal process.

Chisenhall on Monday issued a one-page ruling saying he had no authority to make clarifications to recommended orders or final orders.  

“While the undersigned has the authority to correct a scrivener's error … the Florida Administrative Code does not authorize motions seeking rehearing, reconsideration, and/or clarification,” Chisenhall wrote, denying the request for clarification. “Because the relief sought by LeadingAge Florida and Florida Argentum goes beyond the scope of a scrivener's error, LeadingAge Florida and Florida Argentum must seek relief in a different forum.”

In the motion for clarification, attorneys for the industry groups wrote that “within hours of the division's ruling, the Agency for Health Care Administration and Department of Elder Affairs announced that the emergency rules remained in effect, regardless of the final order, and advised that nursing homes and assisted living facilities must continue to act in compliance. The Agencies did not explain their reasoning.”

Agency for Health Care Administration spokeswoman Mallory McManus confirmed the agency maintains that “the rules are in effect during the appeal process.”

The motion for clarification said that for many years, appellate rules allowed agencies to get automatic stays of such orders, but the rules were changed in 2009.

Scott issued the pair of emergency rules days after an evacuation of a sweltering nursing home in Broward County. The evacuation came three days after Hurricane Irma knocked out the air-conditioning system at The Rehabilitation Center at Hollywood Hills. Eight residents of the nursing home died Sept. 13, with six more dying after the evacuation.

Scott's emergency rules would require nursing homes and assisted living facilities to have generators in place by Nov.15 and enough fuel to power the facilities for 96 hours. The rules also would require the facilities to submit emergency management plans by Tuesday to local officials detailing how the facilities will meet the mandate.

In a final order issued Friday, Chisenhall said the state did not prove the public was in imminent danger — a prerequisite for an emergency rule — and, moreover, said that the rules were an invalid exercise of legislative authority because they expanded what was allowable under law.

Meanwhile, the state also is trying to move forward with the rules through the traditional rule-making process and will hold a meeting on them this week in Tallahassee.

The Florida Health Care Association, a nursing-home industry group that has not been part of the administrative case, sent out correspondence to its members shortly after the ruling on Friday, saying that despite Chisenhall's final order, Agency for Health Care Administration Secretary Justin Senior “indicated that the rule is still in effect while being appealed.”

Emmett Reed, executive director of the Florida Health Care Association, advised members that the agency “is moving ahead with permanent rulemaking; therefore providers should continue with their variance and emergency power plan submission until the stay and appeals process is exhausted.”

Amid the legal battle, long-term care providers have filed requests for variances from the emergency rules. Florida law authorizes agencies to grant variances and waivers to rules that cause a substantial hardship.

Nearly 400 requests have been published in the Florida Administrative Register from nursing home and assisted living facilities that claim they cannot comply with the requirements.

On Monday, the Florida Health Care Association sent a letter to Senior and Jeffrey Bragg, secretary of the Department of Elder Affairs, asking for a process known as “negotiated rulemaking” to resolve the issues.

“Now that the administrative law judge has determined the emergency power plan rules to be invalid, we call upon AHCA and DOEA to end the current variance process, which is costing facilities precious time and financial resources to justify why they cannot meet these unattainable rules,” said the letter, signed by Reed. “FHCA asks all parties to use the administrative law judge's ruling to reset the discussion, exit the courtroom and come to the negotiation table to strengthen resident-focused procedures for facilities' emergency power plans.”