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Court Backs Scott On Emergency Generator Rules

Oct 20, 2017
Originally published on October 20, 2017 8:27 am

A Tallahassee-based appeals court Thursday gave a victory to Gov. Rick Scott in one part of a legal battle about emergency rules requiring nursing homes and assisted living facilities to quickly add generators that can power air-conditioning systems.

The 1st District Court of Appeal, in a 2-1 ruling, rejected arguments that Scott's administration did not show legal justification for issuing the emergency rules, which came after residents of a Broward County nursing home died following Hurricane Irma.

While siding with Scott, the court did not detail its reasons. It said it would issue a written opinion “at a later date.”

Scott's office immediately trumpeted the decision as proof that nursing homes and assisted living facilities should be “protecting the lives of their patients.”

But the decision did not determine the overall validity of the rules, an issue being challenged in a separate case at the state Division of Administrative Hearings. Instead, the decision dealt with justification for handling the generator requirements as an emergency matter.

“This proceeding is not to review the substance or validity of the rule but instead is only to address the agencies' determinations as to immediate danger, necessity and procedural fairness,” attorneys for the state wrote in a document filed this month at the 1st District Court of Appeal.

Attorneys for LeadingAge Florida, an industry group that challenged the rules, alleged in a filing that the state's “specific reasons for finding an immediate danger to the public health, safety or welfare, upon which the emergency rules are based, are insufficient to justify emergency rule-making.”

Appeals-court judges Harvey Jay and M. Kemmerly Thomas sided with the Scott administration, while Judge James Wolf dissented.

The state Agency for Health Care Administration and the Department of Elder Affairs issued the emergency rules after eight residents of The Rehabilitation Center at Hollywood Hills died Sept. 13, three days after Hurricane Irma knocked out the Broward nursing home's air conditioning. Six other residents later died after evacuation.

The emergency rules required nursing homes and assisted living facilities to install generators within 60 days to serve as backup power systems for air cnditioning.

LeadingAge Florida and two other industry groups also filed challenges to the validity of the emergency rules at the Division of Administrative Hearings.

Administrative Law Judge Gar Chisenhall held a two-day hearing last week on the challenge to the emergency rules.

Many nursing homes and assisted living facilities contend they cannot comply with a looming deadline to have backup power. Another 46 requests for variances submitted by long-term care providers were published Thursday in the Florida Administrative Register.

That brings to 148 the number of variances sought by nursing homes and assisted living facilities regarding the emergency rules, which require facilities to have enough power to maintain temperatures of 80 degrees for four days.

An emergency rule generally cannot be effective for longer than 90 days and is not renewable. Amid the legal battles about the emergency rules, the Scott administration announced it also would move to implement new power requirements through the traditional rule-making process.

The Scott administration said in a release that it is “working to make this important emergency rule permanent through a public rule-making process.” The release also said the governor's office will work with the Legislature to “further protect patients.”