Letters Rachet Up Nursing Home Regulatory Fight
Florida Gov. Rick Scott, who has consistently bemoaned unnecessary regulations on businesses, is escalating a legal and regulatory feud with the state's long-term care industry.
The latest salvo has come in the form of letters that the Scott administration is demanding be sent to residents of nursing homes and assisted living facilities, as well as to their families or legal guardians.
The letters are a requirement for facilities that requested — and received — additional time to comply with two emergency rules requiring them to have backup power generators and enough fuel to cool buildings for four days. The initial deadline was Wednesday.
Though an administrative law judge invalidated the rules last month, the state appealed the decision and maintains that they remain in effect during the appeals process. Long-term care providers disagree but aren't ready to buck the Scott administration, which issued a news release Thursday warning that facilities will be fined if they have not come into compliance with the rules or received variances that give them the additional time.
Nursing homes are troubled by the requirement of sending the letters. A particular concern is a line, in bold font, that says: “This letter is to inform you that your facility has failed to comply with this emergency rule.”
Menashe Sapirman, administrator of Claridge House Nursing & Rehabilitation Center in North Miami, said he was shocked and angry that he was forced to send the letters after hiring an attorney and timely submitting the variance request to the Agency for Health Care Administration.
“My first thought was, ‘No. We didn't fail to comply. We followed the variance process, which is a legally granted process that AHCA told us to proceed with. How are we failing to comply?’” he asked. “The reality is, it's horrific to tell a facility to send out a letter that said we failed to comply. It's a hurtful slap in the face.”
Sapirman called his attorney and a statewide nursing home association to consider his options and was advised he had none. But before mailing the letters, he said, he was struck by the idea to write a cover letter to “introduce” the AHCA-required letter.
“Thank God I had the wisdom to think of this. The cover letter introduced the letter by saying we are happy to announce that we are going above and beyond and plan to install a generator that will power the entire building but that it will take longer and that a variance had been approved. Hopefully, the cover letter is so positive, it undoes whatever any negativity that may come from the letter,” he said.
Scott, who is widely expected to run for U.S. Senate next year, has long contended that Florida is “business friendly” and that the attitude has helped the state's economy improve. But critics have contended that the business-friendly stance included a lax attitude toward regulating nursing homes.
The governor took a new tough stance against the long-term care industry after residents of The Rehabilitation Center at Hollywood Hills died in the sweltering heat following Hurricane Irma. Eight residents at the Broward County nursing home died Sept. 13, three days after Irma knocked out the facility's air conditioning.
Scott issued the emergency generator rules after the deaths, but the requirements immediately came under attack from facilities that said generators could not be ordered, installed and approved by state regulators and local officials by the Nov. 15 deadline.
In response to the protests, Agency for Health Care Administration Secretary Justin Senior encouraged long-term care providers to seek variances — temporary exemptions — from the requirements.
And they did. There were 605 requests for variances submitted by nursing homes across the state that said they couldn't meet the requirements by the deadline, according to a News Service of Florida review of state documents. A review of the Agency for Health Care Administration's website showed that on Thursday, the agency had acted on 39 of them.
Assisted-living facilities also heeded Senior's advice. Those facilities submitted 1,334 requests for variances, according to Florida Department of Elder Affairs spokeswoman Ashley Chambers.
But the two agencies have not been completely in lockstep in how to deal with the facilities.
The Department of Elder Affairs approved 10 assisted-living variances in early November without requiring the facilities to send out letters to residents and family members. It wasn't until Nov. 9 that the department began including the letters as a condition of the variance approval.
Even then, some of mandated letters did not include the language about failing to comply with the rules.
When asked about the inconsistencies, Chambers said the department worked with the Agency for Health Care Administration and “changed the letter” so it mirrored the one that AHCA required to be sent out.
AHCA spokeswoman Mallory McManus said the agency is requiring nursing homes to send out the correspondence because residents have the right to know whether the facilities are complying with “life-saving” measures. She also downplayed the idea that the letters could frighten residents and their family members.
“Families and residents deserve transparency,” she said in an email to The News Service of Florida.
The new backup-power requirements not only have existing providers concerned, they are affecting potential new providers such as 58-year-old Beverly Pyne, who planned to open a six-bed assisted living facility and hire at least three staff members.
After caring for her sister who passed away from cancer and losing her father-in-law who lived in South Florida, she wanted to help others who needed her assistance.
With the blessing of her engineer husband, they invested about $50,000 in their Miramar home, which has been updated and remodeled to “create a palace for them to live in.”
As Floridians started evacuating the state when Hurricane Irma barreled toward the peninsula, Pyne drove from Georgia to Florida looking forward to the new life she had been planning.
She arrived in Miramar on Friday, Sept. 8, and hoped to schedule a fire inspection the following Monday but Hurricane Irma changed her plans.
“All hell broke loose,” she recalled.
In the weeks following the storm, Pyne has reconsidered opening the assisted living facility, mostly because of the fuel requirements. She doesn't want to store 96 hours of fuel on her property, saying it would be an “incubator for an explosion.”
Another option is to have natural gas to power the generator, but she said the cost estimates to run pipes to her house have been about $19,000.
Now she wonders whether she should open the facility, and her husband, who is working in Washington, D.C., is encouraging her to walk away from the plans.
The notion that Scott touts himself as the “jobs governor” and encourages businesses to locate in Florida because of the business-friendly atmosphere, she said, is a joke.
“Dream on,” she said. “He's full of crap, and the talk is cheap.”
But Scott and administration officials have adamantly defended the long-term care regulations as being needed to protect seniors.
“During emergencies, health care facilities must be fully prepared to ensure the health, safety and well-being of those in their care, and there is absolutely no excuse not to protect life,” Scott said in announcing the emergency rules in September. “The inability for this nursing home (The Rehabilitation Center at Hollywood Hills) in Broward County to protect life has shined the light on the need for emergency action. Failure to comply will result in penalties, including fines up to $1,000 per day and the possible revocation of a facility's license.”
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