Florida provider groups go back to court over generator rules

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Gov. Rick Scott's emergency rules fine facilities $1,000 per day and threaten license revocation for noncompliance.
Gov. Rick Scott's emergency rules fine facilities $1,000 per day and threaten license revocation for noncompliance.

LeadingAge Florida and Florida Argentum filed an emergency joint motion Tuesday asking an appeals court to prevent state agencies from enforcing generator rules that have a Nov. 15 compliance deadline.

The action stems from disagreement over the ramifications of a state Division of Administrative Hearings decision Friday that the emergency rules set into motion by Gov. Rick Scott on Sept. 16 “are invalid exercises of delegated legislative authority.”

Provider groups believe that the DOAH decision puts compliance with the rules on hold. Scott, however, appealed the decision and told the state Department of Elder Affairs and the Agency for Health Care Administration — which, respectively, issued the rules covering assisted living communities and nursing homes at his direction — that the rules remain in effect during the appeal.

“Because the agencies have taken the position that the emergency rules remain in effect despite the final order declaring their invalidity, all nursing homes and assisted living facilities are at risk of daily fines of $1,000 per day, and potential license revocation for failure to install commercial generators and provide sufficient fuel for 96 hours of power,” LeadingAge Florida and Florida Argentum said in their emergency joint motion.

Scott had announced the rules following the deaths of eight residents of a rehabilitation facility who died after a power outage related to Hurricane Irma knocked out the facility's air conditioning. Since then, six additional residents of the facility have died.

LeadingAge Florida and Florida Argentum on Monday had asked DOAH Administrative Law Judge Gar W. Chisenhall for clarification on whether the rules remained in effect during the appeal of his decision, but he said he did not have the authority to make clarifications.

“The judge stated that he only has approval to correct a clerical error,” Florida Argentum said in a message to members.

The rules had given assisted living communities and nursing homes 60 days to obtain generators and enough fuel to enable them “to sustain operations and maintain comfortable temperatures” for at least 96 hours following a power outage.

Operators were required to submit emergency power plans by Oct. 31 and to have generators installed by Nov. 15. In light of AHCA's and DOEA's interpretations of statute, the provider groups encouraged their members to meet the deadlines or ask for variances, involving attorneys as appropriate.

The First District Court of Appeals previously rejected a provider group challenge to the emergency rules.

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