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Monday, Jul 16, 2018
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After Irma, nursing homes scramble to meet a hard deadline

TALLAHASSEE — Florida's nursing homes and assisted-living facilities find themselves in an unfamiliar place this week — pushing back against Gov. Rick Scott's administration over new rules that require them to purchase generator capacity by Nov. 15 to keep their residents safe and comfortable in a power outage.

With 55 days remaining before the state imposes $1,000-a-day fees, full panic mode has set in on an industry that is more accustomed to dealing with the gentle touch of state regulators and industry-friendly legislators.

The board of directors of LeadingAge, an industry association that represents 350 non-profit senior homes, voted Monday to ask Scott's office to delay the mandate as impractical.

Another group, the Florida Health Care Association, which represents 550 for-profit nursing homes, announced it was convening a "summit" on Friday to voice its concerns about the timing, the logistics and the cost of the new rule. And the national board of Florida Argentum, which represents assisted living and memory care facilities, said Tuesday it is hoping for more time to pay for the new rules in Florida — which it estimates carry price tags of $75,000 to $200,000 per home.

"Our members almost uniformly agree with the spirit of what the governor is trying to accomplish — the idea of keeping residents safe in an emergency — but our members have concerns about the practical implications of the rule," said Steve Bahmer, president and CEO of LeadingAge Florida, which is also hosting the summit.

Like others in the senior care industry, these groups say they support the idea, but they also want some flexibility in the 60-day deadline as they seek contractors, buy generators, hire engineers, retrofit buildings and find financing.

"So many contractors and engineers are involved with the recovery process statewide, it's going to be very difficult to comply," said Susan Anderson, vice president of policy for the ALF association, Florida Argentum.

It's an about-face for most of the senior care industry and for the governor. Since Scott took office in 2011, he has significantly rolled back oversight of the powerful industry that represents more than 73,000 seniors in 683 certified nursing homes, and tens of thousands of others in 3,109 assisted living facilities and memory care centers across the state.

Just weeks into his first term, Scott ousted the state's lead elder-affairs watchdog, Brian Lee, who had served under previous governors Charlie Crist and Jeb Bush, thereby undercutting the effectiveness of the ombudsman office. There have been five successors since Lee was removed.

Scott then moved quickly to sign into law legislation that rolled back safety protections for nursing home patients and reduced the number of hours of direct care patients received at nursing homes. He also cut in half inspections at some specialty care ALFs that serve the frailest patients.

He approved laws that give greater immunity from lawsuits to owners of ALFs and nursing homes and shifted the management of Medicaid long-term care from the state to for-profit providers.

And at the Agency for Health Care Administration (AHCA), the agency that regulates senior care centers and is authoring the new generator rules, regulators last year spent $22,000 on redaction software to shield from the public critical words from inspection reports used by patient families to monitor the quality of their loved one's care.

"I support what the governor is doing," said Lee, who now heads the advocacy group, Families for Better Care. "He is at least trying to make the facilities safer, which is contrary to what he has done in the past few years."

But after eight seniors died at The Rehabilitation Center of Hollywood Hills two days after Hurricane Irma knocked out power and air conditioning to the 152-bed nursing home, Scott reacted. On Saturday he imposed emergency rules requiring all nursing homes to have generators capable of maintaining comfortable temperatures for at least four days in the event of a power outage.

Under the new rules, all of the state's assisted-living facilities and nursing homes have until Nov. 15 — two weeks before the end of hurricane season — to obtain a generator and fuel to "sustain operations and maintain comfortable temperatures" for at least 96 hours after a power failure.

The emergency action also requires that the state fire marshal inspect the generators within 15 days of installation.

Members of the industry have had daily phone calls with officials at AHCA, which licenses both ALFs and nursing homes, asking questions about how to interpret the rule and whether they will be flexible with the schedule. As legislators join the chorus of calls for emergency generators, the agency does not appear to be prepared to water down the mandate — yet.

"The governor expects every facility to follow the emergency rule and take the appropriate action to protect life," said Scott spokesman McKinley Lewis on Tuesday. When asked if they are considering modifying the deadline, he answered: "No."

Bahmer of LeadingAge warns, "it won't be easy."

"We're talking about industrial-scale generators for buildings that have to be retrofitted," he said. "It's going to involve electrical engineering, rewiring, construction. Finding generators, finding contractors is going to be a challenge."

In 2006, after Hurricane Wilma, the nursing home industry fought legislation that would have required them to pay for generators to protect frail elders from the ravages of heat and dehydration. A compromise bill to set aside about $57 million to reimburse half the cost for some nursing homes that were willing to install full-service generators failed.

This year, Bahmer said his members won't object to buying generators powerful enough to heat and cool residents. "Our members are willing to sign the checks and to get this done," he said. "It's just not practical to get it done in this time line."

Lee, who closely monitors nursing home profits, said cost should not be an issue. He cites 2016 data from the federal Government Accountability Office that shows Medicare's median profit margins at for-profit nursing homes climbed to 19 percent that year, and non-profits had revenue surpluses of 15 percent. On top of that, Florida legislators last year raised Medicaid reimbursement rates for the industry.

But he does worry about the industry's clout. Scott's emergency rule will take effect for only 90 days and, Lee said, it's a "Band-Aid fix" unless legislators come back in the 2018 session and make it permanent.

"Rules can always be changed," he said. "Who are the people that go to the hearings? Is it the residents and their families? No. It's the industry and the lobbyists. If it's not made permanent, they will carve this thing up to where they want it to be."

Contact Mary Ellen Klas at [email protected] Follow @MaryEllenKlas

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