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Agencies Reissue Emergency Generator 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.

A pair of emergency rules requiring nursing homes and assisted living facilities to have generators and fuel supplies to keep temperatures at 80 degrees for at least 96 hours have been reissued by Gov. Rick Scott's administration, even though they were invalidated by a state administrative judge in October.

Emergency rules normally have a 90-day shelf life, but Florida law allows them to be extended under certain circumstances, including when permanent rules meant to replace them are awaiting legislative ratification.

The state Agency for Health Care Administration and the Florida Department of Elder Affairs announced Friday that they were reissuing the emergency rules because on Dec. 8 they submitted for legislative approval a pair of permanent rules. Florida law requires the Legislature to sign off on any proposed rule or regulation that increases the costs of doing business by more than $1 million in the aggregate over a five-year period.

The costs of compliance for nursing homes is an estimated $186 million. It will cost assisted living facilities about $280 million to meet the backup power requirements.

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. Before the permanent rules were drafted, three statewide associations representing long-term care providers successfully challenged the emergency rules in state administrative court arguing, among other things, that an emergency didn't exist.

Administrative Law Judge Gar Chisenhall agreed and on Oct. 27 struck down the emergency rules. The Scott administration appealed Chisenhall's order and maintained that the emergency rules remained in effect during the appellate process. That led to additional legal battling, though the Scott administration has continued to claim the invalidated rules remain in effect and that they will be enforced.