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State Faces Another Challenge On 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.

The state faces another legal challenge to a pair of proposed rules requiring long-term care providers to have access to 96 hours of backup emergency power to keep buildings cool during electricity outages.

LeadingAge Florida, which represents 100 nursing homes and assisted-living facilities across the state, filed a challenge last week in the state Division of Administrative Hearing, arguing that the proposed generator rules are arbitrary and capricious, vague and vest unbridled discretion in the Agency for Health Care Administration and the Department of Elder Affairs, which regulate nursing homes and assisted-living facilities, respectively.

The proposed assisted-living facility rule also has been challenged by the Florida Senior Living Association, formerly known as Florida Argentum. The proposed rules — which were submitted Dec. 8 to the Legislature for ratification — closely track a pair of emergency rules that were invalidated in October by state Administrative Law Judge Gar Chisenhall.

In his decision, Chisenhall said there wasn't an emergency when Gov. Rick Scott's administration issued the emergency rules and that the emergency rules didn't comply with state laws. The administration issued the rules after the Sept. 13 deaths of residents of The Rehabilitation Center at Hollywood Hills, a Broward facility where the air-conditioning system was knocked out Sept. 10 by Hurricane Irma.

The Scott administration appealed Chisenhall's decision on the emergency rules to the 1st District Court of Appeal in Tallahassee. The administration maintains that the rules remain in effect during the appellate process and has continued to enforce them.

Scott spokesman McKinley Lewis told News Service of Florida on Thursday that the rules are “solely focused on saving lives” and that LeadingAge Florida should “focus on keeping seniors safe and not on lawsuits.”