Details of generator rules draw criticism

File photo
File photo

TALLAHASSEE, Fla. – Emergency management officials, engineers and long-term care providers flagged problems Tuesday with a pair of proposed rules that require nursing homes and assisted living facilities to install generators and have 96 hours of fuel and also took aim at state agencies that drafted the rules for not being more collaborative.

Walton County Emergency Management Director Jeff Goldberg, who traveled to Tallahassee to testify at a hearing about the proposed rules, said he was “disappointed” that the state had largely ignored comments he made about the proposals at a public meeting last month.

“We want to work with you. We want to meet with you, we want to make a good rule, have a good product and something that makes sense. But without a two-way conversation, with us just talking and weeks later getting a draft rule pushed down to us, doesn't facilitate good cooperation in my opinion,” Goldberg said.

Goldberg said the proposed rules require local emergency-management officials to review plans that detail how facilities are going to meet backup power requirements and to ensure that the facilities are in compliance with the rules. However, local emergency management officials don't have authority to review the power plans, he said.

Additionally, the rules require emergency management officials to post approved plans on their websites. But Goldberg said he and other local officials are being advised by county attorneys that they can't post the plans because the plans belong to the providers and not the government.

Gov. Rick Scott's administration in September issued emergency rules requiring nursing homes and assisted living facilities to have generators and 96 hours of fuel to keep the buildings cool. The emergency rules were issued after the deaths of eight residents of The Rehabilitation Center of Hollywood Hills following Hurricane Irma, which knocked out the Broward County facility's air-conditioning system.

The emergency rules were invalidated in October by an administrative law judge who found no emergency situation existed.

The proposed rules under consideration Tuesday are meant to replace the emergency rules. Testimony was provided at two separate public meetings on the proposals, one hosted by Agency for Health Care Administration, which licenses nursing homes, the other by the Florida Department of Elder Affairs, which has regulatory authority over assisted living facilities.

Neither agency indicated Tuesday whether the proposed rules would be changed to address concerns raised at the meetings.

To come into compliance with the requirements will cost the nursing-home industry more than $186 million, state estimates show. Nursing homes are asking the state to help offset those costs with Medicaid funding. Estimates show that it will cost assisted living facilities more than $280 million to comply with the requirements. The steep price tags mean that the Legislature will have to ratify the rules before they can take effect.

Tallahassee health-care consultant Skip Gregory criticized the Agency for Health Care Administration and the Department of Elder Affairs for not being inclusive or reaching out to experts who, he said, could help them draft rules.

Gregory is an engineer who headed the Office of Plans and Construction at AHCA for 22 years but now is a consultant who has worked for the Florida Health Care Association, a nursing-home group. He rolled through a number of concerns he has with the proposed rules, including the fact that they set a maximum temperature of 81 degrees Fahrenheit but don't mandate a minimum temperature.

“When a nursing home loses power, doesn't the agency care how cold it gets inside the nursing home?” he asked, noting that temperatures drop below freezing in the Panhandle.

Gregory also said the rules are too vague. For instance, the nursing home rule makes clear that the required temperature must be met in an area the facility determines is sufficient to maintain all residents “comfortably at all times and is appropriate for the care needs and life safety requirements.” But the rule doesn't make clear whether that area needs to be equipped with toilets for the patients or whether the area needs to offer privacy to patients.

And while the rule says that, for planning purposes, nursing homes must have no less than 50 net square feet per resident cooled, it doesn't define what “net” means.

“It's not a statute, it's a rule and it needs to have specificity to it,” he said. “The way we write rules, how we always wrote rules, is to get a group together and sit down and try to hash this out.”

The rules also require the state fire marshal to inspect facilities to ensure compliance with the rules. Gregory noted, though, that the Agency for Health Care Administration and the Department of Elder Affairs don't have the authority to direct the fire marshal.

The generator and fuel requirements only apply to assisted living facilities and nursing homes, and Gregory said other providers, such as hospitals, family care homes, hospices and intermediate care facilities for the developmentally disabled, aren't required to have generators and 96 hours of back-up fuel.

“There are 80,642 souls who are not going to be impacted by this rule,” he said.