Judge Strikes Down Florida’s Generator Rule For SNFs

October 27, 2017, Tim Regan, Skilled Nursing News - A judge has ruled that Florida Gov. Rick Scott cannot order skilled nursing facilities (SNFs) or assisted living communities to install generators, citing lack of emergency conditions.  Administrative Law Judge Garnett Chisenhall of Florida’s Division of Administrative Hearings invalidated the rule on Oct. 27 on the grounds that Scott “failed to demonstrate the existence of an immediate danger.”

Scott called the judge’s ruling “disappointing” and vowed to appeal the decision, according to the Miami Herald.  Scott’s order, issued on Sept. 16, gave SNFs and assisted living communities 60 days to install generators and stock enough fuel to last 96 hours following a power outage.  The emergency action also required providers to submit their new generators to inspections by fire marshals, and provide local officials with detailed disaster plans.

The rule came in the aftermath of a power failure at a Hollywood, Florida, SNF that led to the deaths of 14 residents in reportedly sweltering temperatures.  Industry groups LeadingAge Florida, the Florida Association of Assisted Living Facilities and Florida Argentum opposed the rule in court weeks ago.  Developing and implementing such a complex plan would have taken operators in the state far more than two months, LeadingAge Florida president and CEO Steve Bahmer told Skilled Nursing News in September.

“Literally almost without exception, they are finding it extremely difficult to comply with the rule,” he said.  The issue is likely far from over, however. Wasserman Schultz, a Democrat who represents Florida’s 23rd Congressional district, proposed legislation this month that would essentially take a state-level emergency order nationwide. 

“This horrific incident made it quite clear that we need to strengthen our senior safety net, as well as enforce and bolster existing nursing home regulations,” Wasserman Schultz said during a press conference recorded and posted by the Sun-Sentinel. 

The American Health Care Association (AHCA), a Washington, D.C.-based trade group that represents nursing homes and assisted living facilities, expressed support for the initiative as a starting point for a larger debate on the issue.

“We appreciate Rep. Wasserman-Schultz beginning the conversation on emergency preparedness,” AHCA senior vice president for government relations Clif Porter told SNN in an e-mail this month.  “Nursing centers are eager to work with lawmakers and regulators to learn from the successes and failures from the response of the recent hurricanes, and develop rational responses that make sense and make our residents safer.”