LeadingAge FL takes legal action against governor's generator rule after Irma deaths

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LeadingAge Florida filed a legal challenge on Tuesday against Gov. Rick Scott's (R) recent emergency preparedness mandate. The provider organization is arguing the rule would “create an emergency rather than solve one.”

Scott announced the emergency requirements after a Hurricane Irma-related air conditioner outage at a Hollywood, FL, skilled nursing facility resulted in the deaths of 11 residents. The mandate calls for skilled nursing and assisted living providers to “obtain ample resources,” including a generator, to maintain operations and comfortable temperatures for at least 96 hours after a power outage. Scott gave providers 60 days from the requirements' posting to comply.

Speaking at a summit held last Friday by the Florida Health Care Association and LeadingAge, Agency for Health Care Administration Secretary Justin Senior said the rule would be “a significant step forward in the safety that our elders experience during a crisis like Hurricane Irma,” the News Service of Florida reported.

While LeadingAge Florida supports the goal of the governor's mandate, the 60-day deadline could end up making the situation worse for the state's long-term care providers, LeadingAge Florida President and CEO Steve Bahmer told McKnight's Long-Term Care News.

“It is not a lack of willingness to comply with the governor's objective,” Bahmer said. “The problem is every expert we talked to in every related field that we would rely on has said that 60 days is just not possible.”

The mandate is further complicated by the fact that some necessary steps, like ordering generators or retrofitting buildings, “are out of our members' control” and would be hard to accomplish within the timeline, Bahmer noted. The group's aim for the challenge, which was filed in the state's Division of Administrative Hearings, is to “revisit the concept and have a little more time,” he said.

LeadingAge also argued the mandate — which goes “beyond that which is necessary to protect the public interest” — would impose hefty fines on noncompliant providers and could cause them to lose their license. The fact that the incident at The Rehabilitation Center was used “as the basis of an emergency rule that drives required fines for all nursing homes was a component of the challenge,” Bahmer said.

“Only the recent events at a single nursing home in Broward County are cited as the basis for declaring an immediate threat to the public's health and safety,” the challenge reads. “The Agency [AHCA] and Department [Elder Affairs] have not made any findings that indicate that the actions taken at that nursing home ... are present in any other nursing home or in any assisted living facility in Florida.”