A proposal requiring nursing homes to have generators is now on its way to Gov. Rick Scott’s desk, after state lawmakers unanimously approved a bill Monday ratifying the rule. But a similar rule for assisted living facilities remains frozen in the Florida House, with just four days left before the legislative session ends.
The delay, paired with a requirement that the legislature ratify any big-ticket agency rules before they go into effect, could mean lawmakers might depart Tallahassee without approving that rule and leave residents of about 3,000 facilities without the guarantee of emergency power until the legislature reconvenes next year.
The rules, both proposed by Scott days after a dozen residents died of heat in a Hollywood nursing home following Hurricane Irma, require backup power sources that could continue to maintain cooling systems in long-term care facilities. Both the House and the Senate overwhelmingly approved HB 7099, the rule for nursing homes. Though the rule for assisted living facilities was passed unanimously by the Senate Monday, it has yet to be voted on by the House after lawmakers there said they have concerns about the potential cost for small, family-run facilities.
Scott had proposed stricter rules shortly after the deaths at the Rehabilitation Center at Hollywood Hills last September, including requirements that generators be installed permanently and that each resident have 50 square feet of cooled space. But after months of legal challenges, the administration negotiated modified rules with industry groups that relaxed some of those requirements.
The rules that have since been taken up by the Legislature call for power sources that can be portable but must provide at least 30 square feet of cool space for each resident. The rules also call for 72 hours of fuel at those locations, though smaller assisted living facilities with fewer than 17 beds would be required to store only 48 hours of fuel. Nursing homes will also be required to have equipment that can control indoor temperatures for 96 hours after an outage, and sets the ambient temperature at 81 degrees.
Industry groups and the governor’s office agreed on the compromise for both rules in January, but the House’s Health and Human Services Committee held back the assisted living facilities rule last week, citing concerns about cost. Committee chair Travis Cummings, R-Orange Park, said at the time he remained concerned about requiring the smallest assisted living facilities to shoulder such a cost, citing an “extreme fiscal impact” in doing so.
A staff analysis estimates nursing homes in the state will have to spend more than $121 million to comply with the rule over the next five years, though about $66 million could come from Medicaid and $25 million of that from the state. The rule for assisted living facilities would cost about $243 million.
But some long-term care advocates argue that the costs to individual facilities are not as prohibitive as House lawmakers suggest. “We’re talking about caring for people’s lives, elderly people whose lives are very fragile,” said Brian Lee, a former state long-term care ombudsman who now works for an advocacy group. “It’s their normal scare tactics.”
A Senate proposal last week would put $350,000 from a long-term care trust fund run by the state Agency for Health Care Administration toward offsetting costs for the smallest facilities. The provision would offer payments of $1,000 for facilities with less than seven beds, though that provision remains uncertain.
Because of a 2010 provision that requires legislative ratification for rules that call for spending more than $1 million over five years, not passing the assisted living facility rule this session means those long-term care facilities need lawmakers to make any such rule valid.
“We don’t believe the emergency rule could go back into effect,” said Shad Haston, CEO of the Florida Assisted Living Association, one of the groups that negotiated the compromise with Scott’s office. But unless the House takes action in the next four days, “we’re at a standstill until next legislative session.”
FALA, which supports the rule, estimates some of the smaller facilities among the association’s 648 members would only need to spend about $2,000 to comply with the requirements, Haston said. But larger facilities could see costs up to three times as much, he said.
“I do think we do have a little confusion,” he added. “There is a concern about the reimbursement of these generators. There is a cost associated with the implementation.”
Unless legislators decide to extend the session or a special session is called, the House has four days to push the rule for assisted living facilities across the finish line.
“This tragedy looked like it was going to have sweeping ramifications for the industry,” said Lee, the former ombudsman. “It’s to the detriment of residents.”