2 more associations join Florida generator rule fight

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Florida Gov. Rick Scott's emergency rule now faces challenges from three associations representing assisted living operators.
Florida Gov. Rick Scott's emergency rule now faces challenges from three associations representing assisted living operators.

Two associations representing assisted living operators have joined LeadingAge Florida in filing legal challenges to an emergency rule ordered by Gov. Rick Scott Sept. 16. The rule gave assisted living communities in the Sunshine State 60 days to obtain generators and enough fuel to enable them “to sustain operations and maintain comfortable temperatures” for at least four days after a power outage.

Florida Argentum and the Florida Assisted Living Association filed their challenges Sept. 29 and Sept. 27, respectively, against the Florida Department of Elder Affairs, which issued the rule affecting assisted living communities at Scott's direction. LeadingAge Florida filed its challenge to the rule Sept. 26, naming the Department of Elder Affairs as well as the Agency for Health Care Administration, which issued a similar emergency rule applicable to nursing homes. LeadingAge Florida represents assisted living and skilled nursing providers.

Monday, a judge consolidated the three challenges and set a hearing for Oct. 12 and 13.

The governor ordered the emergency 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, four additional residents of the facility have died, and the state has taken actions to close an assisted living community owned by the same company.

Echoing concerns raised in LeadingAge Florida's petition, FALA and Florida Argentum said that 60 days would not be enough time to implement rule requirements. Under the rules, noncompliant assisted living communities and nursing homes can be fined up to $1,000 per day and also face possible licenses revocation.

The assisted living rule, FALA said in its filing, “forces ALFs to make significant modifications under guidelines that are impossible to meet, forcing them to choose either to not be in compliance or to illegally bypass legally mandated permitting processes and safe generator installment practices.”

FALA said it represents more than 500 of the 3,100 assisted living communities that are regulated by the state Department of Elder Affairs.

Florida Argentum said in its filing that its members “are fully committed to creating safe environments for their residents, especially during a natural disaster or other emergency situation. This includes requiring every assisted living community to have a generator for emergency power. However, the process needed to implement safe solutions is technical and complicated from an engineering perspective.”

The group, which is the state affiliate of the national Argentum organization, said its membership includes more than 400 assisted living, memory care and independent living communities.

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