Gov. Rick Scott's administration is proposing a new, permanent pair of emergency power rules for nursing homes and assisted living facilities that differ from controversial emergency rules unveiled in September, but long-term care providers still have concerns.
Whereas the emergency rules required nursing homes to have generators that could keep a portion of a facility at 80 degrees Fahrenheit for 96 hours, the proposed permanent rules would require temperatures not exceeding 81 degrees Fahrenheit, which tracks new federal rules.
Moreover, the emergency rules required nursing homes to have generators, while the new proposal would provide flexibility, allowing nursing homes to have a “sufficient alternate power source” such as generators installed at the facilities.
The emergency rules didn't spell out how large an area needed to be cooled, but the proposed permanent rules note that “for planning purposes,” nursing homes would be required to cool no less than 50 net square feet per resident.
That means a nursing home with 150 residents would have to cool 7,500 square feet of space.
The proposed permanent rule for assisted living facilities tracks the new nursing home rule, but “for planning purposes” ALFs would be required to cool no less than 30 net square feet per resident. So an ALF that has 50 residents would be required to cool 1,500 square feet.
Another change with the proposed rules relates to the types of fuels facilities are required to have. While the emergency rules were silent, the new proposal would allow facilities to use piped natural gas. If local ordinances place limits on how much fuel can be stored, the proposal makes clear that facilities shall “maintain the maximum amount of fuel” allowed by local ordinances.
The state released the proposed rules late Monday, and providers spent the better part of Tuesday reviewing them to digest the changes.
LeadingAge Florida President Steve Bahmer noted that the state incorporated some changes that long-term care providers had sought.
“We are happy to see that,” Bahmer, whose group represents nursing homes and assisted-living facilities, told The News Service of Florida. “We look forward to continuing to work through the rulemaking process to get to a final, permanent rule.”
The Florida Health Care Association issued a news release thanking the Scott administration for the changes, noting that some proposals, such as the change in temperature, were recommended by the FHCA. While not directly criticizing any component of the new proposed rules, the association — the largest in the state — reiterated its sentiment that the rules should be developed by experts in the field.
“FHCA has consistently sought a process that is resident-focused in order to meet the governor's goal of keeping residents cool and safe during disasters,” Emmett Reed, the association's executive director, said. “Sharing ideas through press releases and public testimony is no substitute for gathering experts around a table and working together to develop a realistic plan that can be met by providers in a reasonable time frame and safe manner.”
FHCA chief lobbyist Bob Asztalos repeatedly asked the state Agency for Health Care Administration and the state Department of Elder Affairs to initiate “negotiated rulemaking” a process that allows impacted parties to work together with state officials to draft rules. But the Scott administration rejected the plea.
The new rules come as controversy continues to swirl about the emergency rules, which Scott unveiled in September following the deaths of residents of The Rehabilitation Center at Hollywood Hills in Broward County. Eight residents died Sept. 13, three days after the facility lost power in Hurricane Irma. Six other residents died after evacuation.
Three long-term care groups challenged the emergency rules, claiming that the safety of the public was not in imminent danger and that the rules exceeded legislative authority and were vague and ambiguous. An administrative law judge agreed and on Oct. 31 invalidated the rules.
However, the Scott administration appealed that decision and maintains that the emergency rules remain in effect during the appeal. The industry groups disagreed with the Scott administration about whether the rules remain in effect and asked the 1st District Court of Appeal to vacate a purported stay of the administrative law judge's order.
The 1st District Court of Appeal issued a one-page, two-sentence ruling Tuesday that drew different interpretations from the two sides. The ruling denied the industry groups' request, noting that they “have not demonstrated the existence of an actual automatic stay.”
Bahmer heralded the ruling late Tuesday, telling The News Service of Florida that the appellate ruling “puts an end to the confusion that has been swirling around the rules” since they were announced.
The governor's office, though, issued a news release advising providers that the emergency rules remain in effect.
The proposed permanent rules also come as the Legislature readies for the upcoming 2018 session, which begins in January.
On Wednesday, two South Florida lawmakers said they would prefer to see the issue of emergency power and fuel addressed in state law and not through rule, given that any permanent rule would ultimately require legislative approval.
Rep. Katie Edwards, D-Plantation, and Sen. Gary Farmer, D-Fort Lauderdale, said Wednesday they would like the power issue addressed as part of a bigger bill addressing resident safety at nursing homes.
Edwards has filed a proposal (HB 655), which, among other things, would provide more autonomy to the state's long-term care ombudsman and would authorize electronic monitoring devices, often referred to as “granny cams.”
Edwards said she would like to pass the bill and then provide agency officials with rulemaking authority they need to “address any of the points where additional flexibility is needed.”
The Florida Health Care Association, though, blasted the proposal calling it “glaringly bad legislation” and accused trial attorneys of capitalizing on “human tragedy.”
“Our focus is on finding workable solutions that will improve the safety and well-being of the residents under our care. This includes procedures for backup generators and priority restoration of power. It does not include lining the pockets of trial lawyers at the expense of long term care residents,” Reed said in a prepared statement. “We will oppose this misguided legislation with the same determination with which we work to develop effective solutions to the real challenges before us.”
Farmer, a prominent trial lawyer, said that he was disappointed in the nursing home group.
“We are very willing to work with all stakeholders. but I am very disappointed in the initial response of the Florida Health Care Association. Rather than recognizing the needs for some common-sense reforms to our system, they decided to go on the attack and claim this bill is a trial lawyer bill just because a trial lawyer is the sponsor of the bill. Nothing could be further from the truth. If the provisions of this bill become law, there would be fewer lawsuits in the state of Florida. We want fewer lawsuits, we want better safety. That is the goal of this legislation not to `line anyone's pockets,' “ he said.