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Nursing Homes Seek More Time On Generator Requirements

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
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The Florida Channel
Twelve patients died when the Hollywood Hills Rehabilitation Center lost power durring Hurricane Irma. The tragedy prompted a law to require generators in nursing home facilities.

More than 40 percent of Florida nursing homes are asking health-care regulators for more time to meet backup-power requirements pushed by Gov. Rick Scott after Hurricane Irma last year.

But Justin Senior, the state’s top health-care regulator, said his agency won’t approve waiver requests for deadbeat facilities that haven’t worked over the past several months to carry out emergency backup-power plans.

“Any facility that has a delay in implementation will need to submit evidence that shows they are well underway in their project before they are granted a variance,” Senior, secretary of the state Agency for Health Care Administration, said.

A News Service of Florida review of state documents shows that between Sept.  4 and Nov. 15, 305 nursing homes submitted requests for “variances” with AHCA asking for additional time to make modifications necessary to have backup generators and accommodations to store 72 hours of fuel onsite.

By contrast, 184 nursing homes had reported to the state that they had made the necessary changes. That’s about 27 percent of the licensed nursing homes in the state.

Included in those that have made the changes is Marianna Health & Rehabilitation Center in Jackson County. Administrator Melinda Gay remembers initially thinking the rules were unnecessary, after surviving hurricanes Opal and Ivan.

But she now considers the changes a “blessing.” Three months after modifying its generators to comply with the new rules, the facility was in the path of Hurricane Michael, a Category 4 hurricane that ripped through Northwest Florida in October.

Before the backup-power requirements, the facility had three generators: one to provide power to such things as life-safety equipment; a smaller generator to provide air conditioning in the therapy gym; and one that was a backup for the largest generator.

“With the modifications, we were able to power the HVAC (heating and air-conditioning system) in the dining room, a few resident rooms, a conference room and offices that could be used for resident cool zones,” Gay said.

The city-owned facility sits on a large tract of land, so getting necessary permits for fuel storage wasn’t problematic. Moreover, Gay said the facility spent less than $30,000 on plans and construction to comply with the new rules. That’s far less than the $250,000 the state provided veterans nursing homes to purchase generators.

The Legislature estimated industry-wide costs for nursing homes to comply with the rules would be $121.3 million over the first five years, about $66 million of which would be offset by taxpayers through Medicaid. The cost to assisted living facilities was estimated to be $243 million. Because ALFs generally don’t treat Medicaid patients, those cost wouldn’t be offset by taxpayers.

Susan Anderson, vice president of public policy and legal affairs for Florida Senior Living, the trade association that represents some of the state’s largest ALFs, pointed to high costs of compliance..   

“It’s a large (financial) burden coming in a very short space of time,” Anderson said.

At least 173 ALFs have filed for variances with the Florida Department of Elder Affairs seeking additional time to comply with the rules, which require providers to be able to maintain cool zones.

According to a state website, nearly 55 percent of assisted living facilities have implemented backup power plans.

The rules are somewhat of an about-face for Scott, who came into office railing against costly regulations on Florida businesses. But he moved aggressively to require generators at nursing homes and ALFs after residents died at a Broward County nursing home that lost its air-conditioning system in Hurricane Irma.

Senior worked with long-term care lobbyists to help create a pair of rules. Facilities were required to amend comprehensive emergency-management plans to include detailed explanations of how they would obtain generators and fuel.

The plans had to be submitted and approved by local officials and fully implemented by June 1 with the start of this year’s hurricane season.

The rules allowed for long-term care providers to seek time extensions and to remain in good standing. To get extensions, they had to show they had the ability to have generators to keep the facilities cool and could access 96 hours of fuel.

The temporary extensions, however, expire Jan. 1, triggering the onslaught of variance requests.

Nursing home and ALF lobbyists worried all along that the timeline in the rules would be difficult for facilities to meet, but the state maintained the Jan. 1 deadline for compliance.

Bob Asztalos, chief lobbyist for the Florida Health Care Association, a statewide nursing home group, said providers aren’t lollygagging but are delayed by permitting and building-code requirements. The mandates also have increased demand for generators, which has contributed to an order backlog.

Senior acknowledged that the timelines were aggressive but also said that “in many cases” the facilities are going beyond what the rules require and installing HVAC systems that will cool entire buildings, not just designated cool zone areas.

“These are lasting improvements, which will allow emergency operations officials to use a more targeted approach in the aftermath of storms and other periods of prolonged power outage,’’ he said.

But Senior said that before the agency grants variances, it will need to see proof that facilities have made “great strides” to comply with the rules and that delays are out of the facilities’ control.

“The rules have been in effect for months now, and a facility that has procrastinated is unlikely to meet the state’s strict variance standards,” he said.

Meanwhile the state has moved ahead with penalizing a handful of ALFs that aren’t in compliance. In November, the state has entered into settlement agreements with more than a dozen ALF providers across the state to settle allegations that they failed to meet the requirements, according to a review of information on a state website.

Though AHCA is authorized to collect upward of $500 assessments, the state agreed to levy $250 assessments instead.