Andrea, Barry, and Chantal are not the names of your newest residents; rather they are the names of the first three tropical storms this Atlantic hurricane season, which officially starts June 1. The National Oceanic and Atmospheric Administration (NOAA) forecasts an active hurricane season with up to 15 named storms, of which up to eight could become hurricanes, including up to four major hurricanes.
This is the second year that Florida’s Agency for Health Care Administration (AHCA) and Department of Elder Affairs (DOEA) emergency power rules have been in place for nursing homes and assisted living facilities. Florida’s emergency power rules contain some of the strictest standards in the nation. Licensed facilities must have their Emergency Environmental Control plans in place and implemented. However, there are still many facilities that are not yet in compliance due to unavoidable delays including construction issues, permitting problems, generator shortages, zoning, and other regulatory approvals.
If for any reason your facility is not yet in compliance with the emergency power rules, you should avail yourself of the variance process, including seeking a new or extended variance if your existing variance will lapse before your facility comes into compliance. Facilities not in compliance face fines of $1,000 per day and/or possible license revocation. Many small facilities have struggled to comply with the emergency power rules due to the significant costs of compliance, which often exceed $130,000 for materials and labor.
As of early 2019, it was estimated that only 35 percent of Florida’s 684 nursing homes have installed backup generators; the remaining 444 nursing homes have submitted requests for variances from the rules. As for assisted living facilities, nearly 75 percent, or 2,301 providers, have met the requirement to have generators on-site. The other 706 facilities that have requested additional time to get backup generators are responsible for more than 38 percent of the beds in assisted living facilities. Florida Governor Ron DeSantis’ administration acknowledged the large number of long-term care providers that have been unable to meet the regulatory timeline but has not taken any action to extend the timeline for compliance.
In the wake of Hurricane Irma, which led to the heat-related death of 14 residents at a Florida nursing home, the emergency power rules were established toensure that facilities have adequate cooling and other services necessary for the health and safety of residents. Even if your facility previously prepared and submitted a detailed plan to address emergency power arrangements (in the event of the loss of electrical power), you should consider updating that plan to improve it and/or to address any changes to your facility that occurred in the past year. Facilities should also be aware that if they paid Florida sales tax for the purchase of a generator, they may be eligible for a sales tax refund (up to $15,000 per generator per community) from the Florida Department of Revenue.
Text for the emergency power rules can be found in the Florida Administrative Code and is summarized as follows: 1) sufficient alternate power to ensure a minimum of 96 hours of safe indoor air temperatures; 2) each provider can determine the method of cooling most appropriate to meet their facility needs; 3) a “single campus” exception permits a facility without a generator to relocate its residents to a nearby facility with emergency power; and 4) storage for 96 hours of fuel once a state of emergency is declared and the facility’s primary power delivery may be impacted.
Dr. Steven D. Brownlee is a health law attorney with Williams Parker. He focuses on assisting healthcare and senior living providers with their operational and regulatory matters, including professional licensing, compliance planning, Medicare/Medicaid issues and appeals, DEA issues, and provider contracting. Prior to practicing law, Steven practiced medicine and medical management consulting. He can be reached at [email protected] or (941) 552-2567.