A pair of emergency rules requiring Florida assisted living facilities and nursing homes to be equipped with generators to effectively cool and fuel buildings for 96 hours has been struck down by an Administrative Law Judge. Gov. Rick Scott promised to appeal the court order immediately.
The judge handed down a 66-page ruling, wherein he stated the state had failed to establish it was necessary to increase the self-sufficiency of nursing homes and assisted living facility sites in the event of an emergency.
The judge went on to explain in the order that the remedy for this emergency deficit cannot reasonably be enacted by the deadline of Nov. 15th. Scott railed against the order, saying the judge’s legal reasoning was short-sighted. He vowed to appeal the order and continue working to make the rules permanent.
The rules were enacted in response to the disastrous and tragic fallout of a Hollywood Hills nursing home that was without power for three days after monster storm Hurricane Irma hit in September. Eight residents died at the facility in the sweltering conditions and six more died within days of being evacuated. Nearly a dozen nursing home wrongful death lawsuits have been filed in response.
There has been sharp dispute as to whether the state knew or should have known about the conditions on the home, and whether the nursing home failed to adequately prepare and respond to the emergency. Of course, neither the state nor the nursing home can be expected to control the weather, but in a state like Florida, where extreme storms like Irma are more inevitability than possibility, preparation and response is imperative.
State agencies can enact emergency rules when there is shown to be an immediate threat to public health, welfare or safety. This rule was initiated by the Agency for Health Care Administration, which argued later in court that nearly 250 nursing homes and almost 800 assisted living facilities in the state lost power during Hurricane Irma. Those are only the number reported to the state, so the actual number of outages was probably a great deal higher. Testimony from the state also noted the higher-than-average population of elderly adults in Florida and their vulnerability to health problems spurred by heat exposure.
The administrative law judge, however, stated that Florida’s large elderly population wasn’t enough to establish an “emergency.”
The Department of Elder Affairs and AHCA also officials who testified the incompetent response of the Hollywood Hills nursing home – and the tragic outcome – amounted to an emergency. The judge in his order responded there was no evidence presented that the tragedy in Hollywood Hills was indicative of the situation in other nursing homes and health care facilities.
Emergency rules in general are only valid for three months, but they don’t need to pass through the traditional rule-making process, which can take months or even years. For the most part, emergency rules can’t be renewed.
The ALJ ruling comes just one week after the First District Court of Appeals decided in favor of Scott’s ruling. However, that ruling dealt solely with the issue of whether such matters could be handled in an emergency order. The ALJ ruling, meanwhile, dealt with the validity of the emergency rules.
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Additional Resources:
Judge Rejects Emergency Generator Rules for Nursing Homes, Oct. 30, 2017, By Christine Sexton, Daily Business Review
More Blog Entries:
HHS Inspector General Reports Unreported Nursing Home Abuse a Serious Problem, Oct. 11, 2017, Florida Nursing Home Injury Lawyer Blog