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Lawmakers Eye Hurricane Health Care Issues

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

Though she's concerned that emergency rules requiring nursing homes and assisted living facilities to have generators and 96 hours of fuel supplies were vague, a leading House Republican said Thursday that state health-care agencies should move ahead with implementing a pair of permanent rules.
Rep. Jeanette Nunez, a Miami Republican who chairs the House Select Committee on Hurricane Response and Preparedness, said she is willing to “let (the rulemaking process) continue to play out,” but she acknowledged that the process needs to be done in time for the Legislature to ratify the rules during the 2018 legislative session.

Nunez made the remarks after the select committee wrapped up five hours of discussion on the challenges to the health-care system following Hurricane Irma.

Though the topics ran the gamut, much of the discussion circled back to the controversial generator rules Gov. Rick Scott's administration issued in September following the deaths of residents of the Rehabilitation Center at Hollywood Hills, a Broward County nursing home. Eight residents died Sept. 13, three days after Hurricane Irma knocked out the facility's air conditioning. Six more residents died after evacuation.

The emergency rules require nursing homes and assisted living facilities to have generators and up to 96 hours of fuel by Nov. 15 to be able to power air-conditioning systems.

An administrative law judge last month invalidated the emergency rules, saying the agencies overstepped their legislative authority and that the health of the public wasn't in imminent danger. The state has appealed the decision to the 1st District Court of Appeal in Tallahassee and maintains that the rules stay in effect during the appeal.

Rep. MaryLynn Magar, R- Tequesta, questioned Agency for Health Care Administration Deputy Secretary Molly McKinstry about the state's continued threat of fining or revoking licenses of facilities that don't comply with the emergency rules, despite the invalidation by the judge.

Magar pressed McKinstry about whether the state was expecting a decision by the appellate court on the validity of the rules before Nov. 15 and whether providers would be able to recoup any fines if the rules are found invalid.

McKinstry said licensure revocation was “permissive” and that before AHCA collected any fines, providers would be able to challenge the moves in administrative hearings.

While Magar gently pushed McKinstry for answers, other committee members were more direct.

Rep. Sean Shaw, D-Tampa, asked McKinstry questions about whether The Rehabilitation Center at Hollywood Hills was on a watch list because of questionable quality of care and the amounts of fines or penalties the state had assessed against the facility.

McKinstry said she didn't know the answers and assured the committee that she would provide them with the information.

That annoyed Rep. Jared Moskowitz, a Coral Springs Democrat who noted that a notice of the meeting was published in advance and that the agency should have been prepared to answer the questions.

“I want details,” he said.

While the administrative law judge said the emergency rules are invalid, the Scott administration also has said it will go through a process to put the generator requirements in permanent rules. That process can take months. Also, Scott has said he thinks the Legislature should put the requirements in law.

Meanwhile, Sally Bishop, director of emergency management for Pinellas County, told the panel she had concerns with the emergency rules.

She said the rules have had the “unintended consequence” of facilities no longer wanting to receive another facility's residents “because they aren't prepared to be able to do what the rule requires for their own clients, much less take in another facility's clients.”

Traditionally, Bishop said, facilities that are forced to evacuate patients want to put them in similarly licensed facilities. That means a hospital transfers patients to another hospital, and a nursing home transfers residents to another nursing home.

The emergency rules, she said, could result in facilities transferring residents or patients to non-health care facilities, such as churches, which would not be good for the clients, she said.

Moreover, Bishop said state health-care regulators should put more emphasis on facilities' emergency-management plans during the initial licensure process as well as the renewal process. She said that state needs to put a “special emphasis” on emergency plans and have “strong enforcement.”

The panel also heard from Memorial Hospital CEO Aurelio Fernandez, whose facility is across the street from The Rehabilitation Center at Hollywood Hills and helped care for evacuated patients.

Fernandez told the panel that his hospital system was able to operate efficiently during the storm because it had an emergency management plan and was prepared.

He said that the system has training that goes on daily and that the response was “nothing but remarkable.”

Beyond that, Fernandez said administrators need to trust their staffs and “empower them to do what's right.”

He shared with committee members the story of how he got a phone call at 7 a.m. describing the events at The Rehabilitation Center at Hollywood Hills.

He said staff mentioned calling a code green, meaning there were mass casualties. After listening to the events, he said he authorized the code to be called only to find out that it already had been.

Florida Health Care Association lobbyist Bob Asztalos told the panel that during Irma his association staff spent 12-hour shifts at the state emergency operations center in Tallahassee.

“What happened at the Hollywood Hills Rehabilitation center was unconscionable and must never happen again,” Asztalos said.

He encouraged the state to work with the nursing-home industry and vice versa on developing a plan to ensure that nursing homes and assisted living facilities can have generators in place to keep residents cool and safe during disasters.

“Where we differ is on the process of getting there,” he said noting that the Nov. 15 deadline to have generators and fuel is not achievable.

Committee members also were told during the meeting that there has been an increased emphasis on aging in place, which means fewer people in institutional health settings and more people living in the community.

While it has been a positive thing for the elderly and the disabled --- as well as the state, which pays for most nursing home care --- it has caused some troubles when it comes to preparing for storms and evacuating and has put an increased demand on emergency shelters.