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Law Updates

Florida Nursing Home Generator Rule Appeal

nursing home abuse

The controversy surrounding the
loss of power in a nursing home during Hurricane Irma, which resulted in
eight deaths within three days and an additional four deaths in the following
days, resulted in Governor Rick Scott issuing an order to assisted living
communities and skilled nursing facilities to install emergency generators.
 However, there is general confusion as to whether this rule is to take

Controversial Generator Rule
Struck Down

Governor Scott’s order
required the installation of emergency generators and the stocking of enough
fuel to last 96 hours following a power outage. The order gave assisted
living communities and skilled nursing homes only 60 days to comply.
However, this order, which was issued on September 16th, only three days
following the eight initial deaths at the Hollywood Hills Rehabilitation
Center, was struck down by a judge.

The judge invalidated the rule on
October 17th, stating that the Governor had failed to demonstrate the existence
of an immediate danger that would validate the order. The order was
controversial due to the amount of money it would cost to implement the order.
For non-profit nursing homes, finding the estimated $75,000 to $200,000 it
would require to properly install generators and stock up on fuel within 60
days was deemed unrealistic by some critics. Additionally, the $1,000 a day
fine for not following the order was deemed by many to be overly harsh.

After the order was struck down,
the state immediately filed an appeal with the Florida 1st District Court of
Appeal. The state also instructed the DOEA (Florida Department of Elder
Affairs) and the AHCA (Florida Agency of Health Care Administration) to
continue interpreting the order as if it were still in effect.

This has resulted in confusion as
to whether the rule was in effect or not, confusion which was not cleared
up by the ruling judge, who stated that he lacked the authority to clarify
whether the rule remained in effect during the appeal process.

Steve Bahmer, the CEO and
President of LeadingAge Florida, which represents over 100 non-profit skilled
nursing homes and assisted living facilities throughout the state, believes
that the state’s instruction to continue backing the rule has led to
unnecessary confusion and chaos. For now, he has instructed his members to
continue submitting their emergency power plans in compliance with the order
despite the confusion over whether the rule is in place.

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