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Court asked to block generator rules

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TALLAHASSEE, Fla. – Two industry groups asked a Florida appeals court Tuesday to block Gov. Rick Scott's administration from enforcing rules that an administrative judge ruled are invalid.

The groups challenged emergency rules that were issued by the state last month to require nursing homes and assisted living facilities to have generators capable of providing backup power for up to four days.

Scott pushed for the rules in the aftermath of Hurricane Irma and the deaths of residents of a Broward County nursing home that lost its air-conditioning system.

Industry groups LeadingAge Florida and Florida Argentum filed a motion with the 1st District Court of Appeal after Administrative Law Judge Gar Chisenhall turned down a clarification request that could have blocked the rules from going forward.

Chisenhall on Friday issued a 66-page order invaliding the emergency rules.

The Scott administration appealed that decision and said the rules would remain in effect during the appeal. That led industry groups to ask Chisenhall to clarify whether the emergency rules are on hold while the legal battle continues.

He issued a one-page ruling that said he had no authority to make clarifications. Under the emergency rules, nursing homes and assisted living facilities were required to file plans Tuesday detailing how they would meet the generator mandate.

They have until Nov. 15 to have the generators in place.

While the legal battle has continued, long-term care providers have filed requests for variances from the rules. Florida law authorizes agencies to grant variances and waivers to rules that cause a substantial hardship.

Nearly 400 requests have been published in the Florida Administrative Register from nursing home and assisted living facilities that claim they cannot comply with the requirements.

Meanwhile, another industry group, the Florida Assisted Living Association, is asking the full 1st District Court of Appeal to hear another part of the legal battle about the generator rules.

A three-judge panel of the court this month rejected industry arguments that the Scott administration did not show legal justification for issuing the emergency rules.

But in a motion filed Monday, the Florida Assisted Living Association asked for a rehearing before the full appeals court, a request known as seeking an “en banc” hearing.