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Friday, October 27, 2017

Judge tosses senior-living facility emergency generator rules, calls requirement 'unrealistic'

Posted By on Fri, Oct 27, 2017 at 5:33 PM

Emergency rules issued by Gov. Rick Scott's administration requiring nursing homes and assisted living facilities to have generators and enough power to cool buildings for 96 hours should be tossed, a state administrative judge said Friday.

In a 66-page order, Administrative Law Judge Gar Chisenhall ruled in favor of industry groups LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum, which challenged the emergency rules issued last month after residents of a sweltering Broward County nursing home died following Hurricane Irma. The nursing homes and assisted-living facilities argued, in part, that the emergency rules were unrealistic because they required adding generators within 60 days.

Chisenhall ruled that the state Agency for Health Care Administration and the Department of Elder Affairs overstepped their authority with the emergency rules, describing the rules as “invalid exercises of delegated legislative authority.”

Steve Bahmer, president and CEO of LeadingAge Florida, said Friday that his group was “pleased with the favorable ruling.” The Scott administration issued the rules after eight residents of The Rehabilitation Center at Hollywood Hills died Sept. 13, three days after the Broward facility lost its air-conditioning system in Irma. Six more residents died later after being evacuated.

The emergency rules required nursing homes to have generators by Nov. 15 and to have enough power for 96 hours or face sanctions.

The governor's office said it will immediately file an appeal of Chisenhall's decision. Scott spokesman McKinley Lewis said in a statement it is “disappointing that DOAH (the Division of Administrative Hearings) issued a shortsighted ruling against protecting lives and elderly Floridians.” Moreover, Lewis said the state will implement the generator policy through the traditional rule-making process and will continue to work with the Legislature to make the rules permanent in law.

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