An appeals court Tuesday sided with Florida assisted living and nursing home operators, handing down a decision that emergency rules requiring them to have generators and fuel in place by Nov. 15 did not remain in effect while Gov. Rick Scott appealed a previous court decision that the rules were “invalid exercises of delegated legislative authority” by state officials.

Tuesday’s decision, according to industry groups, means that operators avoid potential $1,000-per-day fines and loss of licensure for not complying or failing to request a waiver. The penalties would have begun Wednesday.

“We are relieved that the First District Court of Appeal is following the rule of law in this case,” Susan Anderson, vice president of public policy for Florida Argentum, told McKnight’s Senior Living. “It has been difficult for providers to operate in such a chaotic environment, potentially facing crippling fines and possible licensure revocation, even though the lower tribunal declared that the rule was invalid.”

At odds again

Senior living groups and Florida Gov. Rick Scott once again are at odds over their interpretations of a court ruling related to the emergency rule.

Discussing Tuesday’s First District Court of Appeal’s decision, Susan Anderson, vice president of public policy for Florida Argentum, told McKnight’s Senior Living, “They’re saying there was no automatic stay of the lower tribunal’s order in effect” after the Division of Administrative Hearings’ Oct. 27 decision. “Therefore, they don’t need to grant a motion to vacate the stay. So that means the final order from the tribunal is in effect, and that order invalidated the rule.”

LeadingAge Florida also views the court’s ruling as a victory for the industry.

Scott has a different take on the appeals court decision, however.

The court in a one-page order denied the nursing home industry’s claim that the emergency generator rule is not in effect as the appeals process continues,” his office said Tuesday in a statement. According to FS120.56(3)(b) and legal precedent, the governor’s emergency rule remains in full effect.”

Stay tuned.

Scott had announced the rules Sept. 16 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. Six additional residents of the facility later died.

The rules gave providers 60 days to obtain generators and enough fuel to enable them “to sustain operations and maintain comfortable temperatures” — defined as at or below 80 degrees — for at least 96 hours following a power outage.

Florida Argentum, the Florida Assisted Living Association and LeadingAge Florida all challenged the rules at the end of September, citing concerns that 60 days would not be enough time to implement rule requirements. The state’s Division of Administrative Hearings invalidated the rules Oct. 27, but Scott appealed and maintained that the rules remained in effect during the appeal. Provider groups filed an emergency joint motion Oct. 31, asking the appeals court to prevent the state agencies from enforcing the rules. Tuesday’s decision was in response to that filing. (See box, “At odds again,” for the governor’s differing interpretation of the court’s decision.)

“We’ve always been in support of the general concept of the generator rule,” said Florida Argentum President and CEO Gail Matillo. “This [ruling] does give us a little more time.”

Monday, the Department of Elder Affairs, which had issued the emergency rule for assisted living communities at Scott’s request, said that 1,250 assisted living communities had not responded to requirements in the rule. The number was an update from the 1,186 it had announced Nov. 8.

The Florida Agency for Health Care Administration, which had issued the emergency rule covering nursing homes, said Nov. 8 that 18 nursing homes were facing potential noncompliance.

Provider groups disputed the tallies from both agencies, however. Florida Argentum, for instance, said that 18 facilities throughout the state erroneously had been placed on the noncompliance lists. The appeals court ruling makes the issue moot, industry groups said.

“What this [ruling] does is eliminate any obligation under the emergency rule, but we are encouraging our members to proceed down the path of sufficient generator capacity in alignment with the general framework of the rule, because that is also the general framework of the permanent rule that the agencies are working on, and it’s also generally the framework that is in the bills that we’ve been working on with legislators,” LeadingAge Florida President and CEO Steve Bahmer told McKnight’s Senior Living. “So we are encouraging members to continue on, but now they can do so in a much more reasonable way that we think will truly result in safer environments for residents.”

The Department of Elder Affairs and Florida AHCA have posted permanent rules (the assisted living rule is here, and the nursing home rule is here), and those rules are expected to be published today in the Florida Administrative Register. The agencies will accept public comments at a Dec. 5 hearing.

Among other provisions, the revised rules:

  • Clarify that if the ruled conflicts with a local ordinance regarding the maximum amount of fuel storage allowed, then the facility should follow the local ordinance or code.

  • Require that air temperatures not exceed 81 degrees Fahrenheit instead of 80 degrees, to match federal regulations.

  • Clarify the areas within the facilities where the required temperatures are to be maintained.

  • Clarify that piped natural gas is an allowable fuel source.

“Many of them are suggestions that we made throughout the process, so we are pleased to see that they have made it into the permanent proposed rule,” Bahmer said.

LeadingAge Florida and Florida Argentum said they will work with state legislators who are crafting bills on the issue.