Nursing home win: Florida judge nixes governor's emergency generator rule

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Florida Gov. Rick Scott's (R) emergency mandates for generators in nursing homes and assisted living facilities was shut down Friday by an administrative law judge, who slammed the rules as “invalid exercises” of the governor's authority.

Scott's mandate was rolled out in the aftermath of Hurricane Irma and the deaths of residents at a Hollywood Hills, FL, nursing home that lost power to its air conditioning system following the storm. The rule would have required providers to obtain a generator within 60 days to maintain operations and stable facility temperatures for at least 96 hours after a power outage.

Friday's ALJ ruling came as part of a legal challenge filed in late September by LeadingAge Florida, which argued that the mandate would “create an emergency rather than solve one.” LeadingAge Florida President and CEO Steve Bahmer told McKnight's Long-Term Care News at the time of the challenge's filing that “60 days is just not possible” for compliance.

In his order to block the mandate, Administrative Law Judge Garnett Chisenhall's stated that Florida's Agency for Health Care Administration was right to pull the Hollywood Hills' license following the resident deaths. But no evidence has been presented since then “indicating that the tragic situation at Hollywood Hills was representative of the situation at any other facilities,” he said.

Chisenhall also stated that the “vast majority” of nursing homes and assisted living facilities in the state would not be able to comply with the mandate's Nov. 15 deadline. The fact that the state began allowing exemptions to the rule acknowledges that the 60-day deadline is impossible for many providers, he added.

McKinley Lewis, deputy communications director for Scott's office, said that the judge's ruling was “disappointing” and “shortsighted,” and that the office plans to appeal.

In comments to McKnight's Senior Living, Bahmer said his group is “pleased” with the judge's decision to invalidate the rule. Many providers have already started working on complying with the mandate, and will continue to do so since the mandate is on track to become a state rule, Bahmer noted.

“I think the goal of the governor's effort is going to be achieved, and that's a good thing. But we will obviously be heavily involved to make sure the timelines for getting that work done are reasonable, which was our central concern about the emergency rule from the beginning,” Bahmer said.

“Our board took a principled stand to challenge the unrealistic nature of the rule, and in doing so they stood up for all of the nursing homes in Florida, and I'm grateful to them for support through the process.”