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Nuñez: Nursing Home, ALF Backup Power Likely An 'Ongoing Discussion'

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Abe Aboraya/Health News Florida
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

The incoming administration of Gov.-elect Ron DeSantis may tinker with one of Gov. Rick Scott’s signature acts, pushed in response to Hurricane Irma.

Lt. Gov.-elect Jeanette Nuñez told The News Service of Florida that a law requiring long-term care providers to have generators and a 72-hour supply of fuel on-site may need to be re-examined, given the large numbers of nursing homes and assisted living facilities unable to meet deadlines for the new mandates to go into effect.

The DeSantis administration may “look at the timelines and see if they were reasonable and realistic,” Nuñez said Wednesday.

“I know there was some concern, both at the House level and I suspect at the Senate level, in terms of the reality of that, especially on the ALF side, being able to come to fruition,” she said in an interview. “That’ll likely be an ongoing discussion.”

Under a pair of legislatively ratified rules, long-term care facilities were required by June 1 to have submitted and implemented comprehensive emergency-management plans detailing how the facilities will have generators and 72 hours-worth of fuel stored on-site. However, the rules allowed long-term care providers to seek temporary extensions, or variances, which expire Jan. 1. The upcoming expiration date has triggered an onslaught of variance requests by the providers.

According to the Agency for Healthcare Administration, none of the requests have been granted.

Between Sept. 1 and Dec. 4, 338 nursing homes had submitted variances asking for more time to meet the mandate. In contrast, just 190 nursing homes --- or about 27 percent of the 668 licensed facilities in Florida --- had fully implemented their new emergency-backup power plans, according to a state website. Another 189 assisted-living facilities had submitted similar requests for variances with the Department of Elder Affairs.

In all, about 59 percent of the 2,962 licensed assisted-living facilities in Florida have met the requirements, according to the state website.

Scott, who came into office railing against costly government regulations, lobbied the Legislature last session to ratify the rules, which he first issued through an emergency order following the deaths of as many as 12 residents of The Rehabilitation Center at Hollywood Hills. The deaths came after the nursing home lost air conditioning during Hurricane Irma last year.

The emergency rules sparked successful legal challenges from some industry groups concerned about potential costs and tight timelines.

But the Scott administration continued to enforce the emergency rules and also worked with legislative leaders and long-term care lobbyists to craft a pair of permanent regulations.

The Legislature estimated industry-wide costs for nursing homes to comply with the new permanent rules would be $121.3 million over the first five years, and the costs for assisted-living facilities was estimated to be $243 million.

Because nursing homes treat Medicaid patients, the costs of generators for those facilities will be offset by Medicaid, which the Legislature anticipated would contribute about $66 million. Because assisted-living facilities generally don’t treat Medicaid patients, Medicaid will not offset the costs for those facilities.

It’s not surprising to LeadingAge Florida President Steve Bahmer that so many nursing homes and ALFs have had to ask the state for more time to comply with the requirements.

“It’s going to continue to take time,” said Bahmer, whose organization represents about 100 nursing homes and 100 assisted-living facilities across the state.

Bahmer’s association challenged Scott’s emergency rules, in part because of the aggressive timelines. Bahmer said his organization always felt that it would take up to 18 months to fully comply with the regulations. Many of the facilities had to hire engineers and architects and custom-order generators large enough to cool the buildings, he said.

“Our members are doing everything they can to be compliant,” Bahmer said. “Certainly everyone’s goal is to be fully compliant.”