Court rejects industry challenge to generator mandate

One difference that stands out between assisted living communities and nursing homes after more than 106 Houston-area long-term care communities reported “emergency events” during last week’s unusual winter storm: the state requires nursing homes to have backup power where life-support systems are used, but no state requirements exist for assisted living communities to have permanent generators on site. 

Last week’s storm forced evacuations at 33 long-term care facilities due to power losses. Thirty senior living communities had to relocate residents, and many reported that they did not have a generator or backup power. As of Monday, the Texas Health and Human Services Commission had fielded emergency event reports from 449 assisted living and other senior living communities and from 410 skilled nursing facilities and nursing homes.

At its peak, the storm left more than 4 million Texans without power. As McKnight’s Senior Living previously reported, two Brookdale Senior Living assisted living communities in Texas had to evacuate residents during the storm, but they indicated that they had ready-to-deploy generators on site.

Long-term care facilities in the Lone Star State are required to report transfers or evacuations of residents to the Texas HHSC. The agency requires assisted living and other operators to implement emergency management plans in such cases.

The generator issue arising from the winter storm brings to mind the aftermath of Hurricane Irma in 2017. The deaths of 12 residents from environmental heat exposure following power outages related to the hurricane prompted Florida’s then-Gov. Rick Scott (R) to demand that all assisted living communities and nursing homes in the state obtain emergency power generators and enough fuel to enable them “to sustain operations and maintain comfortable temperatures.”

After several legal challenges from provider groups over compliance deadlines, the backup power bill was signed into law in March 2019. Oklahoma and North Carolina looked into similar requirements but have yet to pass legislation.