Months after Gov. Rick Scott promised a hard line against nursing homes and assisted living facilities in the aftermath of Hurricane Irma, much of the industry is not in compliance with new rules as the state heads into the 2018 hurricane season.
Scott pushed to require that nursing homes and assisted living facilities have backup power systems to make sure that residents can remain cool for 96 hours in case buildings lose electricity.
The Agency for Health Care Administration last week released data showing that nearly 66 percent of nursing homes in the state have complied with the new rules but that only 18 percent of assisted living facilities have done so.
Mallory McManus, a spokeswoman for AHCA, said the state expects full compliance with the rules, which required special approval from the Legislature because of the steep costs for businesses. The state will cite facilities that aren’t in compliance, which could lead to fines, she said.
“AHCA will stop at nothing to ensure assisted living facilities and nursing homes are following this important rule," AHCA Secretary Justin Senior said in a statement. "We will hold all facilities accountable.”
But compliance doesn’t necessarily mean that facilities have equipment, such as generators, and fuel in place to meet the requirements, which call for being able to keep buildings at 81 degrees Fahrenheit for 96 hours. That’s because nursing homes and assisted living facilities that requested six-month extensions to meet the mandates also are considered compliant, McManus said.
A review of the data shows that 102 nursing homes can meet the requirements and that 348 facilities have asked the state for more time. There are 686 nursing homes in Florida.
The data is as of May 25, a week before the requirements took effect Friday with the start of hurricane season.
Florida Health Care Association spokeswoman Kristen Knapp said nursing homes that requested extensions could face challenges at the local level such as delays in zoning approvals.
“I don’t believe it’s fair to say that if a facility submitted a request for an extension it doesn’t mean they won’t be ready,” she said in an email.
Likewise, 205 assisted living facilities have proper equipment to meet the mandates. Another 344 are deemed in compliance because they have approved extensions or have submitted extensions. Six requests for extensions have been denied.
Unlike nursing homes that will be able to offset the costs of equipment with Medicaid funding, there is no assistance for the 3,102 assisted living facilities in the state.
The head of a group representing assisted living facilities said there are numerous challenges that have made it difficult to come into compliance.
“We're seeing some of our members have to install tanks," said Shaddrick A. Haston, CEO of Florida Assisted Living Facility Association. "We're seeing some of our members have the generators on back order.”
Skip Gregory, who served as Florida’s chief of health care facility plans and construction for 17 years, said the industry is moving to comply with the new rules but that it takes time.
“It’s not as simple as snapping your fingers and saying. ‘Let there be air conditioning at all nursing home and ALFs,’” he said.
But Gregory said there still are “gray areas” regarding the rules and rattled off a number of issues such as long-term storage of diesel fuel and the use of natural gas for generators.
He also warned that allowing assisted living facilities to use gasoline generators to meet the requirements is a mistake.
He predicted that it would take 100 gallons of fuel to keep the generators powered for 96 hours and said owners of small ALFs would stockpile five-gallon gas tanks.
“I just don’t think that’s a good idea,” Gregory said. “That’s like a bomb waiting to go off.”
The rules are not what Scott initially sought in 2017 after the deaths of residents at The Rehabilitation Center at Hollywood Hills in Broward County following Hurricane Irma. The hurricane knocked out the nursing home’s air-conditioning system, leaving residents in sweltering conditions for three days. Authorities have attributed 12 deaths to the problems at the nursing home.
The Scott administration initially issued emergency rules that required facilities to have generators installed. But the emergency rules sparked successful legal challenges from some industry groups concerned about the potential costs. The state appealed the decision and continued to enforce the rules but also worked with Republican legislative leaders on codifying a pair of permanent rules.
The new rules don’t require that the equipment be installed, which indicates it could be portable, and don’t mandate a generator be used to keep air temperatures cool. They instead suggest generators but allow for each provider to determine the most appropriate equipment to meet their facility needs.
Moreover, the new rules require facilities to be able to cool off a set amount of square feet based on the number of residents. Nursing homes are required to cool at least 30 square feet per resident, and assisted living facilities are required to cool 20 net square feet per resident.
“By June 1, 2018, facilities must have access to an emergency power source such as a generator for use during a power outage, have arrangements to bring a power source onsite when an emergency is declared, or evacuate if the facility is in an evacuation zone,” AHCA said in a news release.
Justice for Aging attorney Eric Carlson supported Scott’s original rules but was more reserved in his support of the new ones, noting that the square footage requirements were “pretty tight.”
“They’ve been watered down,” he said.
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