Judge unplugs emergency rule for generators at nursing homes. State plans to appeal.

In a blow to Gov. Rick Scott’s efforts to order backup generator power at nursing homes and senior living facilities before the end of the hurricane season, a Tallahassee judge on Friday invalidated the emergency rule as an overreaction to the deaths at a Broward nursing home.

Administrative Law Judge Garnett Chisenhall ruled that the Florida Agency for Health Care Administration did not have the authority to require all nursing homes and assisted living facilities to purchase generators and fuel by Nov. 15. Scott and his agencies issued the emergency rules after eight residents of The Rehabilitation Center at Hollywood Hills died Sept. 13, three days after Hurricane Irma led to the failure of the Broward nursing home’s air-conditioning system. Six other residents died after evacuation.

The judge concluded that “AHCA took appropriate and swift action by immediately suspending Hollywood Hills’ license to operate a nursing home,” but after two days of hearings concluded, “there was no evidence at the final hearing indicating that the tragic situation at Hollywood Hills was representative of the situation at any other facilities.”

After the hearings, including including testimony from technical experts, electricians and even meteorologists who suggested another hurricane like Irma is not likely to hit Florida before the end of the season on Nov. 30, Chisenhall concluded: “it is impossible for the vast majority of nursing homes and ALFs currently noncompliant with the Emergency Rules to achieve compliance by Nov. 15, 2017.”

The order means that the rules are no longer in effect and cannot be enforced. The governor’s office responded immediately that it will appeal the ruling in the 1st District Court of Appeal in Tallahassee.

“It’s disappointing that DOAH issued a shortsighted ruling against protecting lives and elderly Floridians,” said McKinley Lewis, spokesperson for Scott. “AHCA will continue the public rulemaking process, and we will also continue our work with the Florida Legislature to make these critical rules permanent. We will not let special interests get in the way of these life-saving measures.”

The Florida Association of Homes and Services for the Aging, also known as LeadingAge Florida, joined with two other trade groups, the Florida Association of Assisted Living Facilities and Florida Argentum, to ask a court to invalidate the rule because it should have been adopted by the Legislature as there was “no immediate threat to the public health, safety, or welfare.”

After hearing the testimony, the judge found that the agency did not consult with the members of the industry, investigate whether the proposed rule was a “workable solution,” or prepare cost estimates and time schedules for how to implement the proposal and concluded it was unworkable.

He concluded that despite the agency’s attempt to answer the industry’s questions, “there are still unanswered questions regarding compliance with the Emergency Rules” regarding how much space to give the generators, where they must be located, how to store enough fuel to last four days, what kind of fuel is allowed and failed to justify why the emergency rule was needed.

The ruling differs from a 2-1 ruling issued last week by the 1st District Court of Appeal which concluded that the governor’s office did show legal justification for issuing the emergency rules but it did not settle the question of whether the rules were valid.

“This situation is far from resolved,” wrote Florida Argentum in an email to its members “We are actively working with members of the Florida Legislature on sound public policy that will allow sufficient time for generators to be properly and safely installed. We are also working to have assisted living facilities added to the priority list for power restoration after the storm. We look forward to being able to provide positive updates on these issues.”