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Florida Nursing Home Generator Rule Appeal

November 16, 2017

The controversy surrounding the loss of power in a nursing home during Hurricane Irma, which resulted in eight deaths within three days and an additional four deaths in the following days, resulted in Governor Rick Scott issuing an order to assisted living communities and skilled nursing facilities to install emergency generators.  However, there is general confusion as to whether this rule is to take effect.

Controversial Generator Rule Struck Down

Governor Scott's order required the installation of emergency generators and the stocking of enough fuel to last 96 hours following a power outage. The order gave assisted living communities and skilled nursing homes only 60 days to comply. However, this order, which was issued on September 16th, only three days following the eight initial deaths at the Hollywood Hills Rehabilitation Center, was struck down by a judge.

The judge invalidated the rule on October 17th, stating that the Governor had failed to demonstrate the existence of an immediate danger that would validate the order. The order was controversial due to the amount of money it would cost to implement the order. For non-profit nursing homes, finding the estimated $75,000 to $200,000 it would require to properly install generators and stock up on fuel within 60 days was deemed unrealistic by some critics. Additionally, the $1,000 a day fine for not following the order was deemed by many to be overly harsh.

After the order was struck down, the state immediately filed an appeal with the Florida 1st District Court of Appeal. The state also instructed the DOEA (Florida Department of Elder Affairs) and the AHCA (Florida Agency of Health Care Administration) to continue interpreting the order as if it were still in effect.

This has resulted in confusion as to whether the rule was in effect or not, confusion which was not cleared up by the ruling judge, who stated that he lacked the authority to clarify whether the rule remained in effect during the appeal process.

Steve Bahmer, the CEO and President of LeadingAge Florida, which represents over 100 non-profit skilled nursing homes and assisted living facilities throughout the state, believes that the state's instruction to continue backing the rule has led to unnecessary confusion and chaos. For now, he has instructed his members to continue submitting their emergency power plans in compliance with the order despite the confusion over whether the rule is in place.

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