A meeting on a proposed rule to require nursing homes to have generators that can power air-conditioning systems was scheduled for two hours Friday afternoon, but it wrapped up in about 30 minutes.
Despite the brevity, state Agency for Health Care Administration staff members heard concerns from emergency-management officials, representatives of two long-term care organizations and others who testified about the difficulties in complying with an emergency rule requiring nursing facilities to have generators and enough fuel to keep buildings cool for 96 hours.
The emergency rule, issued in September after the deaths of residents of a Broward County nursing home, was invalidated last week by Administrative Law Judge Gar Chisenhall. But Gov. Rick Scott's administration is appealing the decision while also working to implement the power requirements through a more-traditional rulemaking process, which requires public meetings.
AHCA is the lead agency for the proposed rule, which applies to nursing homes, while the Florida Department of Elder Affairs is the lead agency on a generator rule for assisted living facilities.
There was no draft of the proposed nursing-home generator rule for Friday's meeting, so public testimony was tailored to requirements in the disputed emergency rules.
Florida Health Care Association chief lobbyist Bob Asztalos asked in his testimony that a panel of interested parties be assembled and a mutually acceptable rule be developed. The process is known as “negotiated rulemaking” and, Asztalos said, lawmakers authorized it as a “a tool to attain consensus” when considering complex rules.
“I can think of no issue that better fits that definition,” Asztalos, whose organization represents hundreds of nursing homes, said of the generator rule.
But Mallory MacManus, an AHCA spokeswoman, said the agency does not want to use the negotiated rulemaking process on the issue.
“These life saving measures are too urgent to be dragged out in the negotiated rulemaking process,” MacManus said. “We will continue to work to make this rule permanent through the normal rulemaking process.”
AHCA limited testimony from speakers at Friday's meeting to three minutes. McManus said the agency used the limit to ensure that anyone who wanted to speak would have the opportunity and that it was set out of fairness. She said the agency gave additional opportunity at the end of the meeting for people to speak.
Time ran short before Asztalos could discuss the proposed changes his association would like to see, including a change in a temperature requirement in the emergency rule.
But in written remarks, Asztalos said two-thirds of nursing-home residents rely on Medicaid to pay for the care.
"FHCA also asks that we identify funding sources to assist nursing homes in what could be a $230 million price tag for complying with this generator requirement,” Asztalos said.
Jeff Goldberg, director of emergency management for Walton County, asked that in the permanent rule the state change a requirement that local emergency-management officials sign off on nursing-home generators as well as review emergency-management plans.
“Emergency management doesn’t have the expertise to certify a generator. I can operate a generator I can’t tell you whether that generator is adequate to cool a facility or cool part of that facility. The rule right now is putting that burden on emergency management,” he said.
Attorney Karen Goldsmith has helped nursing homes across the state try to come into compliance with Scott’s emergency rules. She testified she has helped file more than 100 variances with the state because nursing homes cannot comply with a Nov. 15 deadline in the emergency rules to have generator in places and enough fuel to keep homes cool for 96 hours.
“I’m pretty much familiar with what’s happening out there,” she said, adding that the time frames in the emergency rules are not reasonable. She said at a minimum, it would take 180 days for a nursing home to meet the power requirements.
“When we pass a rule, it needs to be reasonable timing,” she said.
AHCA did not say when it would publish the proposed rule or if it would hold another public meeting on the proposal.
The Scott administration moved quickly to issue the emergency rules after the Sept. 13 deaths of eight residents of The Rehabilitation Center at Hollywood Hills, a Broward facility where the air-conditioning system was knocked out Sept. 10 by Hurricane Irma. Six other residents died after evacuation.
Nursing homes and assisted living facilities immediately raised concerns about being able to comply within a 60-day timeframe. Along with going through more-traditional rulemaking, Scott also has called on the Legislature to put the generator requirements in law.
While the AHCA meeting Friday wrapped in about 30 minutes the Department of Elder Affairs’ meeting on the proposed power requirements lasted about 45 minutes, with speakers limited to five minutes.
The Department of Elder Affairs did not provide to the public a draft copy of the policy it would like to implement and, similar to AHCA, did not commit to holding another public meeting on the proposed rule after it is published.
Asztalos testified at the Department of Elder Affairs meeting that the emergency rules didn’t fix the problems at The Rehabilitation Center at Hollywood Hills.
“This rule doesn’t do anything to address what happened in Hollywood Hills,” he said. “What happened in Hollywood Hills as far as we can tell is a breakdown in patient care. There is nothing in this rule that address that,” he said asking that patient-care standards, such as monitoring residents to ensure they aren’t victims of heat exposure should be included in the permanent rule.
Steve Bahmer, president and CEO of the industry group LeadingAge Florida, asked that the state be flexible.
For instance, some of his members are continuing care retirement communities, which means they have assisted living facilities and nursing homes located on the same campus. And in some instances, a common space between nursing homes and ALFs is cooled and is a safe area where assisted living facility residents could be moved if a problem arises. He noted that a continuing care retirement community in Tallahassee has an auditorium that is used by both the nursing home and the ALF.
“The problem is, of course, the rule they have been dealing with for the last 47 days requires them to install a generator in an assisted living building, which essentially renders the common area in their auditorium moot,” Bahmer said.
