Confusion Abounds Amid Florida Generator Rule Appeal

Assisted living communities and skilled nursing facilities (SNFs) in Florida are scratching their heads over whether a controversial emergency generator rule from Gov. Rick Scott is still due to take effect, even after a judge struck it down last week.

Scott’s order, issued on Sept. 16, gave SNFs and assisted living communities 60 days to install generators and stock enough fuel to last 96 hours following a power outage. The emergency action also required providers to submit their new generators to inspections by fire marshals, and provide local officials with detailed disaster plans.

Administrative Law Judge Garnett Chisenhall of Florida’s Division of Administrative Hearings invalidated the rule on Oct. 27 on the grounds that Scott “failed to demonstrate the existence of an immediate danger.”

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But the state filed an appeal with the Florida 1st District Court of Appeal shortly after the decision and instructed the Florida Agency for Health Care Administration (AHCA) and Florida Department of Elder Affairs (DOEA) to interpret the emergency rule as though it was still in effect.

In response, industry groups LeadingAge Florida, the Florida Association of Assisted Living Facilities and Florida Argentum asked Chisenhall to clarify whether the rule was still in effect during the appeal. But the judge said he lacked the authority to do so, leaving providers in a “strange turn of events,” said Paul Williams, Florida Argentum’s vice president of government relations.

“We’ve heard from dozens of our members over the past few days since the DOAH ruling, and there is a lot of confusion and frustration,” Gail Matillo, president and CEO of Florida Argentum, told Senior Housing News. “We’ll continue to pursue our legal options while encouraging our members to file their plans or request a variance. We certainly don’t want them to end up on the wrong side of the situation, even though the DOAH ruling seems pretty clear to us.”

Florida Argentum and LeadingAge Florida filed a motion with the state’s DCA to lift the stay. Both groups are advising their members to plan for compliance or ask for a variance during the period of uncertainty.

“The state’s behavior in this case has caused a tremendous amount of confusion and chaos in respect to how providers are supposed to behave,” LeadingAge Florida President and CEO Steve Bahmer told Senior Housing News. The group represents more than 100 non-profit skilled nursing facilities and assisted living communities throughout the Sunshine State.

“We have encouraged our members to proceed with submitting their [emergency power] plans,” Bahmer said. “Those that hadn’t already submitted them were very close to submitting them, at any rate.”

The DCA does not have a deadline and can rule at any time.

Written by Tim Regan

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