LeadingAge Florida files legal challenge to 'impractical' generator rule

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Steve Bahmer
Steve Bahmer

LeadingAge Florida on Tuesday filed a legal challenge to Gov. Rick Scott's Sept. 16 emergency rule giving assisted living communities and nursing homes in the 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.

The governor issued the rule 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, three additional residents of the facility have died.

LeadingAge Florida President and CEO Steve Bahmer told McKnight's Senior Living that the group's legal challenge relates to the rule's timeframe for compliance, not its overall goal.

“We fully support what the governor is trying to achieve with the rule. We believe that it's the right thing to do,” he said. “We know from our own members' experience and from experts in the industries that support us that achieving compliance with the rule is just not possible in 60 days.”

Bahmer pointed to opinions shared Friday at an “emergency preparedness summit” co-hosted by his organization and the Florida Health Care Association. In addition to members, participants included engineers and representatives from generator manufacturers and construction companies.

“The conclusion was that this timeline is impractical if not impossible,” he said. Based on conversations at the summit, Bahmer estimated that compliance with the rule could take members anywhere from four months to two years.

“The sequence of events that has to happen to achieve compliance with the rule may not be well understood,” he said. “Our members are talking about retaining architects to look at what has to happen to their buildings — whether they need to be retrofitted and that sort of thing; obtaining local and state environmental permits; updating and installing electrical systems; ordering and awaiting delivery of custom generators; developing plans and getting permits for on-site fuel storage and then handling the construction that goes with on-site fuel storage.”

Now that the challenge has been filed with the state Division of Administrative Hearings, the division has seven days to assign the case to a judge, Bahmer said. “And then we will have a hearing at some point within the next 14.”

The outcome of the hearing is important, Bahmer said, because the emergency rule calls for noncompliant assisted living communities and nursing homes to be fined up to $1,000 per day and possibly have their licenses revoked.

Other industry groups in the state, he said, may file legal challenges to the rule, too.

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