Lawmakers and lawsuits

After hurricane deaths, little has changed for nursing homes

have done little to change things months after 13 nursing home residents died when Hurricane Irma took out electricity to their facility.

TALLAHASSEE — Three months after 13 elderly residents in a South Florida nursing home died because of sweltering conditions following Hurricane Irma, lawsuits and legislative inaction are holding up efforts aimed at preventing such deaths in the future.

Some lawmakers are skeptical of imposing a costly requirement to buy generators to maintain power during emergencies on the nursing home industry, meaning elderly patients could remain vulnerable to extended power outages when the 2018 hurricane season begins in June.

Sen. Gary Farmer, D-Lighthouse Point, filed SB 896 last month to require nursing homes be equipped with generators and to impose more oversight on them. He said the deaths at the Rehabilitation Center at Hollywood Hills “serves as a wake-up call.” But his bill hasn’t come up for a hearing.

“These are supposed to be special needs and special nursing care facilities,” Farmer said. “They’re not supposed to be death warehouses.”

After Irma swept through Florida, eight patients at the Hollywood Hills center died after going three days without power amid rising temperatures. The death toll eventually rose to 13.

Gov. Rick Scott’s administration issued an emergency rule requiring nursing homes and assisted living facilities to install generators with 96 hours of fuel within 90 days. An administrative court judge and an appeals court struck down the rule after industry groups sued, but Scott is appealing and his Agency for Health Care Administration still intends to issue fines of up to $1,000 per day as of Nov. 16.

According to AHCA data, 552 assisted living facilities with 10,583 beds have been assessed more than $20,000 in fines, including 48 in Central Florida with 718 beds.

But lists compiled by AHCA, which regulates nursing homes, and the Department of Elder Affairs, which regulates assisted living facilities, of noncompliant facilities are filled with errors, industry groups contend.

“They obviously are an effort to publicly identify providers that are non-compliant with a rule that does not exist,” said

Steve Bahmer, CEO and president of LeadingAge, a trade group of elderly resident facilities with 250 members in Florida. “We don’t think there’s any real effect from those lists except the confusion and trouble and difficulty they cause for residents.”

Now AHCA is crafting a similar regulation through its normal rule-making process, which will take longer to take effect. It could also run into trouble with the Legislature because of the large cost associated with it.

Under state law, the Legislature must approve new regulations that will have an impact of more than $1 million on the private sector. The generator requirement is estimated to cost the industry about $466 million — $280 million for nursing homes and $186 million for assisted living facilities.

Some powerful lawmakers consider that cost excessively steep and likely to put some smaller providers out of business.

“It’s important to remember, there’s nothing prohibiting these folks from buying generators right now,” said Rep. Jason Brodeur, R-Sanford. “If they can afford it and they feel like it’s in the best interest of their patients, they’re doing it already.”

Brodeur chairs the House health care budget committee, which will likely vet any bill imposing the generator requirement. He said he wanted to find the right “balance” between patient safety and placing an “undue burden” on facilities.

“If the choice is whether or not [patients] are in a facility without a generator or on the street, I would rather they were in a facility without a generator,” Brodeur added.

With the Jan. 9 start of the legislative session drawing closer, bills filed to address the matter haven’t advanced in either chamber of the Legislature, although some committees have held workshop meetings on the issue.

Farmer’s bill goes beyond the generator requirement. It would boost the independence of the Elder Affairs ombudsman, allow for video monitoring of facilities and undercover investigations and require utilities to give nursing homes greater priority when restoring power after a hurricane. But even other bills aimed at providing tax cuts for facilities that buy generators haven’t received a hearing.

Although the bills have stalled, Senate President Joe Negron, R-Stuart, said he supports increasing Medicaid reimbursement rates for nursing homes and using state money or tax breaks to help the industry pay for any generator requirement.

And while Bahmer is concerned about the costs of installing generators, he believes having them in place during emergencies is the “right thing to do.” But he doesn’t want AHCA or the Legislature to increase the requirements in the emergency rule.

“We want to make sure that the goalposts don’t get moved,” Bahmer said.

“[Agency for Health Care Administration lists] obviously are an effort to publicly identify providers that are non-compliant with a rule that does not exist. We don’t think there’s any real effect from those lists except the confusion and trouble and difficulty they cause for residents.” Steve Bahmer, CEO and president of LeadingAge