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Some Nursing Homes Erroneously Targeted On Power Rules

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.

Six nursing homes were erroneously included in an announcement Wednesday by Gov. Rick Scott's administration that 23 nursing homes had not complied with an edict about having generators to keep residents safe.

Two of the state's largest nursing-home associations are asking that the state print a retraction after facilities faced media inquiries about their power capabilities following a news release issued late Wednesday morning by the Agency for Health Care Administration.

In a statement to The News Service of Florida, AHCA spokeswoman Mallory McManus acknowledged the state had incorrectly included two nursing homes on the list of facilities and said the state would update its website “as soon as possible.”

The news release was updated on the website later, but it still contained the name of at least one facility that the industry associations say is in compliance with the requirements. Additionally, the updated news release was not redistributed to the press, and there was no indication on the release that it had been corrected.

The initial release was distributed to newspapers across the state and The News Service of Florida and the Associated Press, among others.

The issue stems from emergency rules that the Scott administration issued in September following the deaths of residents of The Rehabilitation Center at Hollywood Hills. Eight residents of the sweltering Broward County facility died Sept. 13, three days after Hurricane Irma knocked out its air-conditioning system. Six other residents died after evacuation.

Under the rules, nursing homes and assisted living facilities had until Oct. 31 to submit detailed plans about how they would meet requirements to have generators and enough fuel to cool buildings for 96 hours. They have until Nov. 15 to meet the generator requirements or face upwards of a $1,000 daily penalty.

A trio of associations that represent nursing homes and assisted living facilities challenged the emergency rules alleging, among other things, that there was no emergency and, therefore, the rules were invalid.

An administrative law judge agreed with the groups and issued a final order last month invalidating the rules. But the state has appealed the decision to the 1st District Court of Appeal in Tallahassee and said it will enforce the requirements during the appeal. It also has moved to implement permanent rules for backup generators for nursing homes and assisted living facilities.

The Florida Health Care Association, which represents hundreds of nursing homes, did not challenge the rules. Its chief lobbyist, Bob Asztalos, though, criticized the Agency for Health Care Administration for issuing the news release Wednesday about non-compliance without first trying to reach out to the facilities to double-check the information — or for not reaching out to the association, which also could have tried to check the information.

Three of the facilities on the list, Asztalos said, had filed variances with the state that were publicly available on the website. He called it “pretty outrageous that the agency is communicating with the nursing homes through the press.”

“We can think of no reason it was necessary for AHCA to handle it this way, and then to handle it inaccurately is truly unfortunate,” he said. “They should absolutely print a retraction and clarify the record.”

Asztalos also did not include in his count of errors facilities that had generators and fuel before the emergency rules and, thinking they were in compliance, failed to submit documents to the state. Also, the count did not include any nursing home that erroneously sent a variance request to the Department of Elder Affairs instead of AHCA.

LeadingAge Florida was one of the three associations that challenged the rules. Its president, Steve Bahmer, told The News Service of Florida on Wednesday that two of his member nursing homes were surprised by reporters inquiring about the generators after receiving the news release.

Bahmer said both facilities called the state asking about the release and demanded a retraction.

Continuing-care retirement communities and nursing homes that are members of LeadingAge Florida have had discussions with residents and families about emergency preparedness, Bahmer said, adding that the facilities assured the residents and families that they were in compliance.

“Now this press release causes confusion,” he said. “I think it's incumbent upon the agency to clarify the record."