State of Florida Provides Additional Guidance on New Generator Obligation for Senior Living Facilities

September 26, 2017

By: John D. Ruffier

Florida Argentum has worked with the Florida Agency for Health Care Administration (AHCA) and Florida Department of Elder Affairs (DOEA) to obtain clarification on several matters with respect to Governor Scott’s emergency rule requiring all assisted living facilities (ALFs) and nursing homes to “obtain ample resources, including a generator and the appropriate amount of fuel, to sustain operations and maintain comfortable temperatures for at least 96-hours following a power outage” within the next sixty (60) days. The full rule is here.

Florida Argentum has obtained clarification as to some aspects of the emergency rule:

  • Facilities are required to maintain temperatures at 80 degrees or cooler in a common area large enough to keep all of its residents comfortable for a minimum of 96 hours. Facilities do not have to maintain a temperature of 80 degrees in their entire building.
  • ACHA and DOEA have indicated that the deadlines set forth in the rule will not be extended. There are two significant deadlines in the rule:
    • By Tuesday, October 31, 2017 (45 days from the rule’s effective date of September 16, 2017), owners/operators must submit a plan to DOEA and to their local emergency management agencies for review and approval.
    • By Wednesday, November 15, 2017 (60 days from the rule’s effective date of September 16, 2017), implement the plan required by the emergency rule.

What is unclear from the rule is whether the emergency rule is intended to require the generators and fuel supplies to be in place within 60 days or whether facilities must be implementing their approved plan within sixty 60 days (which we believe is a more reasonable interpretation). But, even if the longer window for implementation is available, we suspect DOEA will still expect fairly aggressive timetables for implementation. We have requested clarification on this timing from DOEA, but have not received a response.

  • No federal, state, or local requirements or permits will be waived to assist facility owners in implementing these new requirements.
  • While piped-in fuel may be used as a secondary source, fuel sufficient to run the generator for at least 96 hours must be maintained on the premises.
  • If your comprehensive emergency management plan (CEMP) requires your community to evacuate, you are still required to comply with the emergency rule by acquiring and installing emergency power and fuel source.
  • All generators, regardless of type, must be installed and maintained on site.
  • If your CEMP already meets the requirements, you still must submit your detailed written plan as stated in the rule for confirmation.

We encourage all facility owners and operators to start the process of planning for this work – the rule only provides 45 days to submit a plan and 60 days to have the plan implemented, with the threat of licensure revocation and fines of $1,000/day for non-compliance.

If you have any questions about this rule, please contact John Ruffier or any member of our Senior Housing Group.