In mid-January, the Agency for Health Care Administration (AHCA) and Department of Elder Affairs (DOEA) modified the permanent emergency generator rules (Rules) for nursing centers and assisted living facilities, (ALFs) respectively. The 2018 Legislature ratified these rules through the passage of HB 7099 (nursing centers) and SB 7028 (ALFs), and on March 26, 2018, the Governor signed these bills into law, effective immediately. Under the Rules, nursing centers and ALFs are required to submit their Emergency Generator Plans to their local Emergency Management Office on April 25, if these plans were not already filed under the Governor’s Emergency Rules which were issues last September.
During the FHCA Quality Symposium on April 5, I joined AHCA Deputy Secretary Molly McKinstry and other subject matter experts to discuss the Rules and give providers an update on the regulatory requirements, timelines and other pertinent information. These permanent Rules are very similar to the emergency rules issued last September but take into account some of the issues that facilities experienced in trying to comply with the emergency rules. Many things, however, remain the same.
Facilities which received a variance under the emergency rule are not being held to the time frame in their variance order. Rather, providers will be held to the new time frames in the Rules applicable to their facility. If, under its variance, the facility had a deadline for implementation later than June 1, 2018, AHCA should be contacted for guidance.
Facilities which have already filed their emergency plan and received approval do not need to refile. However, if substantial changes are made based on the new requirements, the plan should be amended and resubmitted. For example, the emergency rule was silent on two facilities which share the same campus. These Rules permit facilities on the same campus with common ownership to share resources to meet the rule requirements. For example, a nursing center and an assisted living facility on the same grounds can be in compliance with the rule by moving residents between the two facilities, assuming the receiving facility has adequate resources for the added population. Note the Rules do have other requirements, such as common ownership.
One significant addition to the Rules is the right to utilize natural gas for the facility’s generator. Note, however, that there is a question as to whether the federal emergency regulations are going to require a backup if a facility is in an area highly susceptible to disruption of natural gas. While we have asked AHCA for further clarification, it appears AHCA and the Florida Building Code clearly state that level 1 generators must have 72 hours of fuel on site and natural gas does not meet that requirement.
Facilities with additional questions can visit the AHCA website where questions can be asked and will be answered on a regular basis. Many questions may have already been asked and answered so be sure to check the site, where the answers may already be readily available.
The Rules permit an extension to January 1, 2019, by filing a request; the details of the request are included in the Rules. A very important component will be a plan for how to keep residents safe during the extension period. Keeping temperatures acceptable will be extremely important, as the extension period covers much of the hurricane season.
As an aside, we have heard of issues with portable chillers being used. Remember that portable chillers must be vented to an outside source to prevent forcing the heat exhaust back into the facility. Bottom line – if a facility is using portable chillers, plan in advance for a means of exhaust. Providers should obtain the manufacturer’s instructions in advance to ensure they are prepared when the time comes for their use.
Both the nursing center and ALF Rules are similar in that:
- The Rules require the ability to maintain the temperature of 81 degrees or less
- This Rules require the internal temperature to be supported for 96 hours
- Piped gas is an option
- If local regulations, ordinances or rules do not permit the minimum required amount of fuel, facilities must maintain the maximum amount of fuel that is allowable, must have the ability to replenish it within 24 hours of depletion and must do so
- There is a deadline of June 1, 2018, to implement the plan (note language herein re extensions)
For nursing centers:
- There must be 72 hours of fuel maintained onsite if not using piped gas
- When an emergency is declared, facilities must bring at least enough fuel to meet 96 hours onsite (refer to the language regarding local restrictions above)
- The provider may choose the amount of space to cool but there must be at least 30 square feet allotted per resident
For assisted living facilities:
- For facilities with 17 or more beds there must be fuel for 72 hours maintained onsite
- For facilities under 17 beds (16 or less), 48 hours of fuel must be maintained onsite
- When an emergency is declared, providers must bring additional fuel onsite to achieve 96 hours (refer to the language regarding local restrictions above)
- Providers may choose the area to cool; however, there must be at least 20 square feet per resident and that area may be based on 80% occupancy of licensed beds
- Carbon monoxide detectors are required
The carbon dioxide requirements are a direct result of the concerns which arose during Hurricane Irma when some ALFs (and also many other structures) had generators that were too close to the building and in particular, had open windows, along with other ways for carbon monoxide to enter the building.
Extensions require showing that:
- Delay was caused by factors outside the facility’s control, such as failure to obtain equipment that was ordered or by securing permits and approvals of governmental bodies;
- Construction delays not caused by the provider;
- Appropriate temperatures can be maintained by another means;
- The facility has an alternative power source available within 24 hours of the declaration of a state of emergency; or
- The facility may evacuate if in an evacuation zone.
Nursing centers are required to keep AHCA apprised of the progress monthly. Assisted living facilities are required to keep AHCA apprised of the progress quarterly
If the extension still does not give enough time for implementation, the provider must file for a variance, just as was done under the emergency rule. This is a more formal process, however. AHCA can place conditions on the variance just as they did in the emergency rule. There is more discretion on the part of the agency at this juncture, so it is wise for facilities to move along as quickly as possible with implementation.
We urge facilities to put together a timeline as they progress and supporting documentation for any delays so that if a variance is necessitated, they can show why the delay was out of their control. It is easier for facilities to do this as they proceed than wait and try to put it together when time is limited. By the time providers are applying for variances, AHCA will have a history of what others have done and outliers will be easily spotted. If a facility is an outlier, it will be critical to show that any delay was not caused by a failure to move forward.
This is not a complete recap of the regulations but a synopsis of some of the most important points. A copy of the PowerPoint we presented at FHCA’s Quality Symposium can be accessed by FHCA members only here.
We urge providers to move aggressively toward compliance because they will likely find that, despite best efforts, factors beyond control will slow down the process. Providers who have not acted aggressively will find the delay to be compounded.
Unlike the emergency rule, these permanent Rules allow AHCA to use a great deal of discretion in imposing sanctions. Basically, the sanctions currently available to the agency for other deficiencies are available for failure to comply with the Rules. This can include revoking a provider’s license.
As we move forward under these Rules, we will continue to share the observations we make and the hurdles some of our clients have met and overcome. Stay tuned.
