An assisted living operator in Florida is predicting the closure of several assisted living communities there if the state’s Agency for Health Care Administration moves forward with plans to penalize assisted living communities and nursing homes that aren’t in compliance with the Sunshine State’s emergency power plan rule by the end of the year.

One association representing providers, however, told McKnight’s Senior Living that the state agency’s actions may be warranted with communities that have not made good-faith efforts to comply with the rule. Another association pointed out that a status of noncompliance doesn’t necessarily mean that a facility doesn’t have an approved emergency power plan in place.

Jen Brown, who operates three assisted living facilities in the Sunshine State, according to WKMG News 6/ClickOrlando.com, said that AHCA’s potential action is “scary” because residents could be forced to find new places to live quickly.

AHCA Secretary Mary Mayhew, however, told the media outlet that operators have been given fair notice of the need to comply with the emergency power plan rules, which were signed into law in March 2018 after 12 long-term care residents died of environmental heat exposure in 2017 when a power outage related to Hurricane Irma knocked out their facility’s air conditioning. The rules — one for assisted living communities and one for nursing homes — require long-term care facilities to obtain generators and enough fuel to enable facilities “to sustain operations and maintain comfortable temperatures.”

The rules called for existing facilities to implement their plans by June 1, 2018 — or by Jan. 1, 2019, if they were granted an extension.

“I have communicated strongly with the nursing homes, with the assisting living facilities, that I will be reluctant to grant variances beyond the end of this year,” Mayhew said. “We absolutely will take action against their license if we can demonstrate that they have failed to make good faith efforts to come into compliance with this law.”

Among the potential actions that could be taken against facilities are license denial, revocation or suspension, according to a notice of noncompliance dated Nov. 25 that AHCA sent to some operators. Facilities also could be fined $500 per violation per day, the letter noted.

In some cases, according to LeadingAge Florida, such action would be justified. 

“At this point, if a community has not made a good faith effort to come into compliance with the rule, then AHCA’s enforcement actions may be warranted,” Susan Anderson,  director of assisted living public policy for LeadingAge Florida, told McKnight’s Senior Living. “LeadingAge Florida has, and continues to, support senior living providers that promote quality care and safety for residents.”

Several long-term care facilities already have been fined, Mayhew said. Additionally, three licenses have been denied to assisted living facilities, and 280 more assisted living facilities have been penalized for not complying, according to the agency.

AHCA data show that, as of Dec. 3, approximately 94% of the state’s 1,457 licensed assisted living facilities had state-approved and implemented emergency power plans. One percent had requested or had been granted variances giving them additional time to comply. The remaining 5% percent of facilities either had plans that were not approved or implemented, had not requested variances or had variances that had expired.

Although the majority of assisted living operators are reported to be in compliance with the rule, a formal status indicating noncompliance doesn’t necessarily mean that a facility doesn’t have an approved and implemented emergency power plan, according to the Florida Senior Living Association.

“It’s a complex rule,” Lee Ann Griffin, FSLA’s director of regulation and education, told McKnight’s Senior Living.

The rule for assisted living communities has eight multi-point components, she added, and facilities that do not meet the specifications of all eight components will be deemed noncompliant. In addition to, or as part of, writing and submitting, gaining approval for and implementing an emergency environmental control plan, for instance, Griffin said, each facility must submit to AHCA written proof of its plan’s approval by its local emergency management agency within two days of approval, and facilities also must submit a “consumer-friendly summary” of the plan to AHCA for posting on the agency’s website. Six FSLA members who received notices of noncompliance dated Nov. 25 and were given 10 days from receipt to respond are facing such circumstances.

Some facilities with approved plans have experienced delays in receiving formal approval in writing from their local emergency management agencies, Griffin said.

FSLA has been working with all of its members to help ensure compliance, President and CEO Gail Matillo said.