Nursing home mandate diluted

Tough new rule on generators already has wiggle room, state decides

After the shocking deaths last month in the sweltering Rehabilitation Center at Hollywood Hills, Gov. Rick Scott announced an emergency requirement that all nursing homes install back-up power generators within 60 days.

Violators would face fines of up to $1,000 a day and the possible loss of their license.

But on Thursday, his administration announced there might be some wiggle room, saying that in “extreme circumstances” waivers may be granted.

The announcement stressed that the order remained unchanged and that compliance would still be expected in the vast majority of cases. Still, it offered the possibility of a reprieve to a politically and economically influential industry that had complained that the governor’s time-frame for making substantial and expensive upgrades would be extremely difficult to meet.

The Hollywood nursing home, which had a generator but not one that powered its air con-

ditioners, lost power in Hurricane Irma. The heat grew worse, and eight residents died on Sept. 13. Despite an emergency evacuation, six more died in the following days, having never recovered from their traumatic time in the suffocating building. The Hollywood Police Department has begun a criminal investigation, and several lawsuits have been filed against the nursing home by victims’ families.

The nursing home has been closed since the evacuation but is trying to get back in business. But the federal government dealt a severe blow to that plan Thursday by cutting off its eligibility for Medicare, which pays the bills for many patients. The nursing home has said it plans to fight to regain its eligibility.

The governor’s emergency rule requires nursing homes to have backup generators and sufficient fuel to maintain temperatures of 80 degrees or cooler for 96 hours after the loss of electricity.

The statement Thursday from the state Agency for Health Care Administration, which regulates nursing homes, said waivers would not be routinely granted but only in unusual circumstances “beyond a facility’s control.”

“This does not repeal or modify the requirements of the Emergency Power Plan Rule,” the statement said. “Nursing homes and assisted living facilities are still required within 60 days of the rule being published to have working generators and 96 hours of fuel to keep patients safe and comfortable.”

“Each variance request must contain: steps the nursing home has taken to implement the rule, specific circumstances beyond the facilities control that have prevented full implementation, what arrangements have been made to fully implement the rule, a plan to inform residents and their families of the variance request, and an estimated time of full compliance with the rule,” the agency said.

Brian Lee, executive director of Families for Better Care, a national advocacy group for improving conditions at long-term care facilities, said the possibility of waivers shows that the generator rule was never intended to be seriously implemented. Real change, he said, will have to in changes to state law by the Florida Legislature.

“That rule, to begin with, was nothing more than a political veneer, just to stem the tide,” said Lee, former Elder Care Ombudsman for Florida. “The governor tried to take real leadership on this, to get a rule out there and initiate the conversation. That’s all this was, a conversation starter to figure out how to solve this problem and allow the media maelstrom to pass by.”

McKinley P. Lewis, spokesman for the governor, said the announcement did not represent a change in policy but simply restated a procedure already in the law.

"It has no effect on the emergency generator rule and its enforcement. AHCA has made it clear that they will enforce this rule aggressively, and they will continue to do just that,” he said.

The nursing home industry, which has challenged the rule in court, calling the deadline “impossible,” applauded the Scott administration’s announcement.

Kristen Knapp, spokeswoman for the Florida Health Care Association, said that while nursing homes support the governor’s goal of equipping nursing homes with generators, they have great difficulty achieving this within the 60-day timetable.

“Nursing centers face numerous compliance challenges beyond their control, from the need to secure suitable generators to customizing the electrical wiring of each unique center to securing the approval of local and state zoning authorities and regulators,” she said in an email. “On average, it takes a nursing center between six months and two years to complete the construction and permitting processes to properly install an effective generator.”

Members of Congress and the state Legislature have proposed reforms, including requiring nursing homes to have generators.