The Issue Whether Florida Administrative Code Emergency Rules 58AER17-1 and 59AER17-1 (collectively referred to as “the Emergency Rules”) are invalid exercises of delegated legislative authority and whether an immediate danger justified issuance of the Emergency Rules.
Findings Of Fact The following findings of fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, admitted facts set forth in the pre-hearing stipulation, and matters subject to official recognition. The Parties LeadingAge Florida is a trade association whose membership includes 75 nursing homes and 79 assisted living facilities (“ALFs”). LeadingAge Florida’s services include the provision of legislative and regulatory advocacy on behalf of its members. FALA is a professional organization whose membership includes 592 ALFs. FALA’s advocates on its members’ behalf before the legislative and executive branches. Florida Argentum has 367 members and represents companies that operate professionally managed senior living communities, including independent living, assisted living, and memory care communities, as well as allied companies that serve senior living operators in the State of Florida. AHCA is the state agency in Florida responsible for licensing nursing homes and ALFs. AHCA’s staff inspects nursing homes and ALFs in order to ensure compliance with the statutes and rules governing those facilities. AHCA promulgates the rules governing nursing homes. DOEA is one of the state agencies charged with implementing the Assisted Living Facilities Act under Part I of Chapter 429, Florida Statutes (2017).3/ DOEA consults with AHCA in order to promulgate the rules governing ALFs. Pertinent Statutes and Rules Governing Nursing Homes and ALFs Nursing homes and ALFs are subject to statutes and existing rules pertaining to emergency management plans and emergency power. Section 400.23(2)(g), Florida Statutes, requires AHCA, in consultation with DOEA and the Department of Health, to adopt rules that include reasonable and fair criteria for “[t]he preparation and annual update of a comprehensive emergency management plan” by a nursing home. “At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including emergency power, food, and water . . . .” (emphasis added). Florida Administrative Code Rule 59A-4.134(12)(h) requires nursing homes to have generators.4/ Rule 59A-4.122(1)(e) requires nursing homes to maintain “[c]omfortable and safe room temperature levels in accordance with 42 CFR, Section 483.15(h)(6), which is effective October 1, 2014 . . . .” The version of 42 C.F.R. § 483.15 cited by the rule mandates that “[f]acilities initially certified after October 1, 1990 must maintain a temperature range of 71-81 ºF.” No exceptions are mentioned. Section 429.41(1)(b) requires DOEA in consultation with AHCA, the Department of Children and Families, and the Department of Health, to adopt rules that include reasonable and fair minimum standards for “[t]he preparation and annual update of a comprehensive emergency management plan” by an ALF. “At a minimum, the rules must provide for plan components that address emergency evacuation transportation; adequate sheltering arrangements; postdisaster activities, including provision of emergency power, food, and water ” § 429.41(1)(b), Fla. Stat. (emphasis added). ALFs are not specifically required to have generators. Florida Administrative Code Rule 65G-2.007(8)(a) mandates that indoor temperatures at ALFs “shall be maintained within a range of 68 degrees to 80 degrees, as appropriate for the climate.” No exceptions are mentioned. Hurricane Irma and Its Aftermath On September 6, 2017, Hurricane Irma was projected to strike Southeast Florida, and nursing homes and ALFs in that area initiated evacuation plans. By September 8, 2017, Hurricane Irma’s direction had shifted, and projections indicated that Southwest Florida was in the storm’s path. Nursing homes and ALFs in that area also initiated evacuation plans. There were numerous situations during the pre-storm evacuation process in which patients could not be successfully evacuated to the originally planned destinations because those destinations were already filled with evacuees. In many instances, alternative arrangements had to be made in the midst of the emergency conditions and, often, the alternative shelters were not equipped to provide an appropriate level of care and/or did not have generators or the ability to house the patients for extended periods of time. By September 9, 2017, the scope of Hurricane Irma’s threat came into sharp focus. Projections had Hurricane Irma moving north over the entire Florida peninsula and affecting the vast majority of the State. On September 9, 2017, the Division of Emergency Management estimated that 6.5 million Floridians had been ordered to evacuate. By September 11, 2017, 6.7 million homes and businesses had lost power. More than 30,000 restoration personnel were activated in order to restore power as quickly as possible. That was the largest power restoration undertaking in history for a single state. Many nursing homes and ALFs were without power for more than 72 hours after the storm and had a difficult time maintaining their indoor temperatures at the required levels. Even facilities that had generators experienced difficulty due to a shortage of fuel during Hurricane Irma’s aftermath or because of a lack of generator capacity to power their air conditioning. Residents at some nursing homes and ALFs suffered from overheating, and they were transferred to hospitals because temperatures within the facilities had become excessively warm. Temperatures in some facilities became so high that AHCA ordered them to be evacuated. By September 15, 2017, power had been restored to more than 75 percent of the homes and businesses that had lost power. In the days after Hurricane Irma, AHCA and DOEA concluded that nursing homes and ALFs needed to be more self- sufficient. That would reduce the need for evacuations and the need for nursing homes and ALFs to seek emergency assistance if electricity could not be promptly restored following a hurricane. The Tragedy at Hollywood Hills Nursing Home In the aftermath of Hurricane Irma, a tragedy occurred at the Rehabilitation Center of Hollywood Hills, LLC (“Hollywood Hills”), a nursing home located in Hollywood Hills, Florida. Hollywood Hills was licensed to provide care to 152 residents. After conducting a survey of Hollywood Hills on September 13, 2017, AHCA imposed an immediate moratorium5/ on additional admissions to Hollywood Hills.6/ Following imposition of the moratorium, AHCA gathered additional facts and issued an Emergency Suspension Order7/ on September 20, 2017, that immediately suspended Hollywood Hills’ license to operate a nursing home in Florida. AHCA’s Emergency Suspension Order set forth the following findings: On September 10, 2017, [Hollywood Hills] became aware that its air conditioning equipment had ceased to operate effectively. In addition to contacting the local electrical power provider, [Hollywood Hills] situated eight (8) portable air coolers somewhere in the facility and equipped the halls with fans. Between 1:30 AM and 5:00 AM on September 13, 2017, several residents suffered respiratory or cardiac distress. At least eight (8) of those residents ultimately expired. Emergency personnel and law enforcement responding to these multiple emergency medical events directed [Hollywood Hills], as a result of the heat in the building, to evacuate the second floor of [Hollywood Hills]. [Hollywood Hills] ultimately evacuated the entire building. Due to the active state of emergency of Hurricane Irma, the Florida Emergency Operations Center was actively staffed to assist with critical incidents. Additional emergency resources through several state and local government agencies were also available. This includes potential assistance with a timely evacuation, which [Hollywood Hills] never requested. [AHCA] officials have reviewed records pertaining to the operational status of Memorial Regional Hospital, the hospital located directly across the street from [Hollywood Hills], and have confirmed that at all times relevant to this matter, the hospital was open, air-conditioned, and available to receive patients. The Emergency Suspension Order also found that: As a result of [Hollywood Hill’s] failure to care for and protect its residents, at least eight (8) residents have died. The deceased residents arrived at the large air- conditioned hospital across the street with core body temperatures of, for example, [109.9] degrees Fahrenheit; [108.5] degrees Fahrenheit; [107] degrees Fahrenheit; and [108.3] degrees Fahrenheit – too far gone and far too late to be saved. The Emergency Rules On Saturday, September 16, 2017, AHCA approved the adoption of Emergency Rule 59AER17-1. Emergency Rule 59AER17-1 was filed with the Department of State on September 18, 2017. Emergency Rule 59AER17-1 is entitled “Nursing Home Emergency Power Plan” and states that it “establishes a process for [AHCA] to ensure that licensees of nursing homes develop and implement plans that ensure ambient temperatures will be maintained at 80 degrees or less for a minimum of ninety-six (96) hours in the event of the loss of electrical power to a health care facility.” The full text of Emergency Rule 59AER17-1 provides that: 59AER17-1 Nursing Home Emergency Power Plan Procedures Regarding Emergency Environmental Control for Nursing Homes. Nursing homes shall, within forty-five (45) days of the effective date of this emergency rule, provide in writing, to the Agency for Health Care Administration and to the local emergency management agency for review and approval, a detailed plan which includes the following criteria: The acquisition of a sufficient generator or sufficient generators to ensure that current licensees of nursing homes will be equipped to ensure ambient temperatures will be maintained at 80 degrees or less for a period of a minimum of ninety-six (96) hours in the event of the loss of electrical power. The acquisition and safe maintenance of sufficient fuel to ensure that in an emergency situation the generators can function to maintain ambient temperatures at 80 degrees or less for a period of a minimum of ninety-six (96) hours in the event of the loss of electrical power. The acquisition of services necessary to install, maintain, and test the equipment and its functions to ensure the safe and sufficient operation of the generator system installed in the nursing home. Each nursing home shall, within sixty (60) days of the effective date of this rule, have implemented the plan required under this rule. If the facility’s initial submission of the plan is denied, then the local emergency management agency shall report the denial to the Florida Division of Emergency Management and the facility within forty-eight (48) hours of the date of denial. Within ten (10) business days of the date of the local county emergency management agency’s notice of denial, the facility shall resubmit their plan. The county shall post all approved facility emergency management plans to their website within ten (10) days of the plan’s approval. Within forty-eight (48) hours of the approval of the plan from the local emergency management agency, the facility shall submit in writing proof of approval to the Agency for Health Care Administration. The State Fire Marshall shall conduct inspections to ensure compliance with this rule within fifteen (15) days of installation. Each nursing home facility shall develop and implement written policies and procedures to ensure that the facility can effectively and immediately activate, operate and maintain the generators and alternate fuel required for the operation of the generators. The Agency for Health Care Administration may revoke the nursing home’s license for failure to comply with this rule. In addition to other remedies provided by law, violation of this rule shall result in a fine or sanction of $1,000 per day. The facility shall implement policies and procedures to ensure that the health care facility can effectively and immediately activate and maintain the generators and alternate fuel required for the operation of the generators. Emergency Rule 59AER17-1 purportedly took effect on Saturday, September 16, 2017. In sum, Emergency Rule 59AER17-1 imposes the following requirements: (a) development of a plan regarding emergency environmental control within 45 days (i.e., October 31, 2017); (b) acquisition of a generator within 60 days (i.e., November 15, 2017); and (c) acquisition of enough fuel by November 15, 2017, to power the aforementioned generator for 96 hours On September 18, 2017, DOEA filed Emergency Rule 58AER17-1 with the Department of State. Emergency Rule 58AER17-1 is entitled “Procedures Regarding Emergency Environmental Control for [ALFs]” and states that it “establishes a process for the Department of Elder Affairs to ensure that licensees of assisted living facilities develop and implement plans that ensure ambient temperatures will be maintained at or below 80 degrees Fahrenheit or less for a minimum of ninety-six (96) hours in the event of the loss of electrical power to an assisted living facility.” Emergency Rule 58AER17-1 imposed the same requirements on ALFs that were imposed on nursing homes by Emergency Rule 59AER17-1. Emergency Rule 58AER17-1 purportedly took effect on Saturday, September 16, 2017. With regard to the specific reasons why there exists an “immediate danger to the public health, safety or welfare,” the Emergency Rules state the following: The State has experienced extreme shortages of electrical power that have jeopardized, and continue to jeopardize, the health, safety, and welfare of residents in Florida’s nursing homes. According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation. According to the Centers for Disease Control and Prevention, people age 65 years or older are more prone to heat-related health problems. An incompetent response by a nursing facility to a loss of air conditioning after Hurricane Irma resulted in the tragic loss of eight senior citizens at the Rehabilitation Center at Hollywood Hills. Thousands of frail seniors reside in nursing homes in Florida. Ensuring that nursing homes maintain sufficient resources to provide alternative power sources during emergency situations mitigates the concerns related to the health, safety, and welfare of residents in those nursing homes that experience loss of electrical power. This emergency rule establishes a process for certain nursing homes to obtain sufficient equipment and resources to ensure that the ambient temperature of the nursing homes will be maintained at 80 degrees or less within the facilities for a minimum of ninety-six (96) hours in the event of the loss of electrical power. Prompt implementation of this rule is necessary to ensure continuity of care and to ensure the health, safety, and welfare of residents of Florida’s nursing homes. As for why the method employed by AHCA and DOEA to address the situation described above was fair under the circumstances, the Emergency Rules explain that: The procedure used to adopt this emergency rule is fair, as the State of Florida is under a declaration of emergency due to the massive destruction caused by Hurricane Irma, and it is essential to ensure as soon as possible that temperatures in nursing homes are maintained at a level providing for the safety of the residents residing therein; provides at least the procedural protection given by other statutes, the State Constitution, or the United States Constitution; and takes only the action necessary to protect the public interest under the emergency procedure. Prior Evaluation of Whether Facilities Could Comply with the November 15, 2017, Deadline AHCA did not consult with the nursing home or ALF industries before adopting Emergency Rule 59AER17-1. DOEA did not consult with the ALF industry prior to adopting Emergency Rule 58AER17-1. Before adoption of Emergency Rule 59AER17-1, AHCA did not investigate whether the requirements imposed by the Emergency Rules were a workable solution that could address the alleged emergency described in the preamble to the Emergency Rules. Before adoption of Emergency Rule 58AER17-1, DOEA did not consider whether it was realistic to expect that ALFs could comply with the Emergency Rules’ requirements by November 15, 2017. In addition, DOEA had not: (a) formulated or procured any estimates regarding the cost of compliance; (b) become aware of the process and timeframe for planning, permitting, procuring, and installing a commercial generator; (c) consulted with any generator suppliers to ascertain whether this increased need for generators could be satisfied by November 15, 2017; consulted with electrical engineers as to whether 60 days was a reasonable amount of time for compliance; and had not consulted fuel tank suppliers to ascertain if the fuel tanks necessary to comply with Emergency Rule 58AER17-1 could be procured by November 15, 2017. The Installation Process for Commercial Generators and Fuel Tanks There are several steps that must be taken in order to safely and legally install generators. For existing nursing homes, installing a generator that complies with Emergency Rule 59AER17-1 requires three distinct phases: design, approval, and installation. The design phase requires that a nursing home hire an electrical engineer. Negotiating a contract with an electrical engineer is a one-to-two week process. Once hired, the electrical engineer will have to visit the site, examine existing electrical distribution systems, and discuss and confirm with the operators their expectations for the HVAC system when the generator is activated. The initial site visit requires three to four days to collect all of the facts needed for the design. After the initial site visit, the electrical engineer must create final diagrams and construction drawings that will ultimately be reviewed by AHCA and the local jurisdiction. The electrical engineer must engage the client frequently as the design is being drawn to ensure that expectations are being met. Finally, once the drawings are close to completion, the electrical engineer will take a final walkthrough of the facility in order to complete the final design that will be submitted for regulatory review. An expeditious design phase would take 60 days to complete. After a new power delivery system has been designed and drawn, the plans are submitted to AHCA and to the local jurisdiction concurrently for review. The plans must contain breaker coordination studies, ground fault studies, and power demand studies. AHCA must complete its review of the design plans within 60 days. There is no provision in the Emergency Rules regarding the time within which necessary local governmental approvals must be completed. After AHCA and the local jurisdiction complete their review, they provide comments to the electrical engineer. If the comments conflict, then the engineer must negotiate a solution between AHCA and the local jurisdiction. After completion of the approval phase, a nursing home can begin the process of ordering and installing the generator. Usually a nursing home will not order the generator and equipment necessary for installation until the design plans have been approved by AHCA and the local jurisdiction. While a nursing home could order a generator at an earlier time, that is problematic given that the final plan approved by AHCA may require a different generator than the one initially ordered. Following placement of a generator order, delivery usually takes 12 to 16 weeks because generators suitable for a large facility must be custom made rather than pulled “off the shelf.” After the generator has been delivered, installation can take weeks. With the exception of the smallest of ALFs, ALFs subject to Emergency Rule 58AER17-1 must go through a similar design and approval process and cannot comply by purchasing an “off the shelf” generator from a local home improvement store. Instead, the majority of ALFs (just like nursing homes) will need a generator built according to plans and specifications prepared by an electrical engineer and ordered months ahead of installation. Electrical engineer Michael Dodane provided persuasive expert testimony regarding the timeline required for nursing homes and ALFs to comply with the Emergency Rules. Mr. Dodane credibly testified that it is physically impossible for a facility to have a new generator installed within the 60-day timeline set forth in the Emergency Rules. Mr. James R. “Skip” Gregory, a former Chief of AHCA’s Office of Plans and Construction also credibly and persuasively testified that it is impossible for a generator to be installed within the 60-day timeframe set forth in the Emergency Rules. Uncertainty About Compliance with the Emergency Rules During the evening of September 18, 2017, LeadingAge Florida participated in a conference call with AHCA. LeadingAge Florida believed the call would present an opportunity to have questions answered so that LeadingAge could provide information to its members. At the time of the call, there was a great deal of uncertainty about how to comply with the Emergency Rules. AHCA was unable to answer any questions during the call. AHCA treated the call as an opportunity to gather questions and assured the callers that AHCA would provide answers at a later time. On September 21, 2017, the Agencies published eight questions and answers pertaining to compliance with the Emergency Rules. The most noteworthy questions and answers were the following: Question: Does the requirement to maintain temperatures in subsection (1) apply to the entire licensed facility including all resident rooms and common areas? Answer: The required temperatures must be maintained in an area of sufficient size to maintain all residents comfortably at all times and that is appropriate for the health, safety and welfare of all residents. This may include areas that are less than the entire licensed facility if the facility’s emergency management plan includes relocating residents to portions of the building where temperatures will be maintained as required by the rule. This information must be included in the plan required by subsection (1). Question: Will a contract or agreement to bring in a generator and/or fuel when needed comply with the requirement of subsection (1)? Answer: No. The rule requires the generator be installed and maintained at the facility, and sufficient fuel must be safely maintained at the facility to ensure temperatures for 96 hours. A contract to bring in a generator when needed does not comply with the rule. A contract to bring in fuel to support temperatures beyond the initial 96 hours would be appropriate as part of the [comprehensive emergency management plan], however the initial 96 hours must be supported by a fuel source available at the facility at all times. The rule is intended to enable nursing homes and assisted living facilities to be self-sufficient in maintaining resident safety. During times of emergency, delivery of a generator or fuel can be unreliable and will not provide necessary protections for vulnerable residents. Question: Will a mobile generator meet the requirement of the rule? Answer: The rule does not restrict the type of generator required, but it must be installed and maintained at the facility. The emergency generator, fuel supply, and distribution equipment must be protected from debris impact as required by the Florida Building Code. Question: Can natural gas be used as a fuel source? Answer: The rule does not dictate the type of fuel permitted. Only sources of fuel that are stored onsite will be considered reliable, however a piped fuel source may serve as an additional resource. The plan that must be submitted for review should include fuel information. Question: Does the rule waive other permitting or approval requirements elsewhere in law? Answer: The rule does not waive any other permitting or requirements. Nursing homes must continue to seek approval from all other state and local authorities including the Agency’s Office of Plans and Construction. [ALFs] must continue to seek approval from all other state and local authorities. Question: Does the rule provide for an extension of time if requested? Answer: No. The rule does not provide for an extension of time. Question: If a facility’s [comprehensive emergency management plan] is to evacuate if a power outage or other emergency does not enable the maintenance of required temperatures, is this plan a permissible alternative to meeting the generator and temperature requirements of this rule? Answer: No. Emergency evacuation plans are vital in many instances. However, the rule does not provide evacuation as an alternative means for compliance with this rule. On September 22, 2017, the Florida Health Care Association (“the FHCA”) held an open summit in Tallahassee for discussion about the Emergency Rules and how nursing homes and ALFs could comply. Attendees included facility operators, personnel from the Agencies, and industry experts and suppliers with expertise regarding generator installation at health care facilities. At the summit, expert panelists opined that 60 days was an insufficient amount to time to comply with the Emergency Rules. In addition, the Agencies were notified that generator manufacturers would not be able to fill orders quickly enough for every nursing home and ALF needing a new generator to comply with the Emergency Rules. Justin Senior, AHCA’s Secretary, spoke at the summit and indicated that the November 15, 2017, deadline established by the Emergency Rules would not be extended. However, Secretary Senior invited nursing homes and ALFs to utilize the statutory waiver process8/ if they could not comply with the Emergency Rules. Following the summit, the Agencies published more questions and answers on October 2, 2017, pertaining to whether nursing homes and ALFs could obtain a waiver and/or variance from the Emergency Rules’ requirements. Another set of questions and answers published on October 2, 2017, pertained to the requirements set forth in the Emergency Rules. One noteworthy question concerned the use of spot coolers: Question: The rule does not state that the generator(s) needs to run HVAC systems to cool. Are spot coolers considered in the rule? Answer: The rule does not specify the method of cooling required to allow flexibility for each provider to determine the most appropriate equipment to meet their facility needs. These details should be specified in the plan submitted for review and approval. The Agencies published another set of questions and answers on October 10, 2017. The more noteworthy questions and answers included the following: Question: There is no defined review timeline for local emergency management review of plans; however facilities are expected to have generators implemented within 60 days. If all plans [are] received on [the] 45th day – there is very little time for review/comment, particularly if permits are required [and] if it is expected that reviews will be completed within the 60 days implementation period. Is it expected that the plan reviews and approvals [will] be completed prior to implementation? Answer: The rule describes plan reviews and approvals prior to implementation. Question: Who determines the technical specifications for the emergency power requirements, such as load requirements? What agency/organization established these technical standards? Answer: The rules establish the criteria for compliance. The plans must include any analysis and documentation necessary to demonstrate compliance with the criteria. The solution must be compliance with applicable building and life safety codes. Some facilities will utilize the services of a professional engineer who will determine technical requirements. If an engineer is not utilized, publicly available tools may assist with determining needs. Generator sizing calculators are commonly available online to help determine an appropriate solution for small facilities. Question: Are there expectations for fuel burn rates/projections to be in the plan? Answer: The plans should address the fuel needs required to maintain the 96 hours of temperature control as required in the rule. Question: Local code/zoning provisions may not allow for fuel storage on site – there may be other on-site safety considerations. Answer: Plans should include details of fuel storage information. Review of plans should consider safety issues prior to approval. Question: Under the rules, local emergency management agencies report denials to Florida DEM but approvals to AHCA/DOEA. Wouldn’t AHCA/DOEA want information on denials? To whom will these notices be directed at the respective agencies? Answer: Notification to AHCA and DOEA would be helpful. Please use the following email addresses for notifications . . . . On October 10, 2017, the Agencies published revisions to two answers initially issued on September 21, 2017. With regard to whether a mobile generator could be utilized to satisfy the Emergency Rules’ requirements, the Agencies revised their answer to state the following: Answer: The rule does not restrict the type of generator required, but it must be installed and maintained at the facility. If the emergency generator used to meet the temperature requirements in the rule also supplies power for life safety and critical equipment, a level 1 generator must be used and the fuel supply and distribution equipment must be protected from debris impact as required by the Florida Building Code. As for whether natural gas can be used as a fuel source, the Agencies now stated that “[p]iped natural gas is an allowable fuel source under the rule. The plan submitted for review should include fuel information.” Despite the publication of the questions and answers discussed above, there are still unanswered questions regarding compliance with the Emergency Rules. For example, the Emergency Rules are silent on how much of a nursing home or ALF’s physical space must be air conditioned. One of the Questions and Answers published by the Agencies provided that only part of a facility needed to be air conditioned, but there was no specification as to which part. No square footage or other clear guidance was provided. Instead, the Answer merely stated that enough space had to be provided to keep residents “comfortable.” The Emergency Rules provided no guidance on where the air conditioning should be provided in a nursing home or ALF. The Emergency Rules do not give sufficient specificity about electrical load requirements. The Emergency Rules require that a generator power air conditioning for 96 hours, but they do not specify what type of load the generator must power. The current building code requires 72 hours of connected load, but engineers can design generators for 96 hours of connected load, 96 hours of demand load, or 96 hours of nameplate rating load, each requiring different amounts of fuel. Regardless of load, the 96 hour requirement would cause a need for more fuel storage than currently required under the building code. Another unanswered question concerns permissible types of fuel. The Emergency Rules would allow gasoline as a fuel source. However, gasoline is generally considered to be a poor fuel source for powering emergency generators because gasoline is highly flammable and only remains usable for six months unless stabilizers are added. The Emergency Waiver Rules On October 12, 2017, each of the Agencies published an emergency rule describing how facilities could apply for a waiver and/or variance from the Emergency Rules’ requirements. The variance rule pertaining to nursing homes appeared in the Florida Administrative Register as follows: 59AER17-2: Variances from Nursing Home Emergency Power Plan Rule SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE: The specific reasons are as set forth in the Notice of Emergency Rule, published in the Florida Administrative Register on Monday, September 18, 2017, Volume 43, No. 180, pp. 4003-4005. As a result of the vulnerabilities and risks to the elderly population residing in Florida nursing homes that was evidenced by the impacts of Hurricane Irma, the Agency has promulgated Rule 59AER17-1 Nursing Home Emergency Power Plan to set forth the requirements for each nursing home to develop a plan to ensure the safety and health of residents in the event of the loss of electrical power. In the aftermath of the devastation left by Hurricane Irma, including the loss of life at a licensed nursing home facility due to an incompetent emergency response coupled with the loss of power to cooling systems, and facing the threat of two more potential hurricanes on a similar track toward Florida, the Agency took immediate steps to require nursing home facilities to develop and implement plans to ensure that each facility would be able to maintain temperatures at an appropriate level for a minimum of 96 hours in the event of the loss of electrical power. The experience of Hurricane Irma revealed that additional protections for the elderly were needed beyond reliance on evacuation plans, transfer agreements for evacuation of patients to other facilities, or third- party suppliers of emergency power in times of emergency, and staffing issues arise when facilities are without air conditioning, potentially immediately endangering the health, safety and welfare of the residents. Accordingly, the Emergency Rule was promulgated to direct licensed nursing homes to implement Emergency Power Plans for a minimum of 96 hours to protect patients and residents during the immediate aftermath of a major power outage and infrastructure disruption, not just during a hurricane. This Supplement does not repeal or modify the requirements of the Emergency Power Plan Rule. Instead, this supplement to Emergency Rule is adopted to provide guidance and direction on the submission of variance requests under current Florida law. Nursing homes must focus their efforts on ensuring their patients and residents will be protected during the immediate 96 hours following a community-wide disruption of operation of environmental controls. REASON FOR CONCLUDING THAT THE PROCEDURE IS FAIR UNDER THE CIRCUMSTANCES: To facilitate the expeditious implementation of the Emergency Rule requirements, this Supplement to Emergency Power Plan Rule regarding the variance process already available under existing law is adopted to provide guidance and direction to the nursing homes that for reasons outside their control are unable to fully implement an Emergency Power Plan within the sixty (60) days specified in the Emergency Rule. This Supplement does not repeal or modify the requirements of the Emergency Power Plan Rule. This Supplement will enable the Agency to accurately track the steps taken by nursing homes around the state to address the important goal of ensuring that all nursing homes have the ability to protect the safety of the residents in times of emergency. The Supplement provides at least the procedural protections given by other statutes, the Florida Constitution, or the United States Constitution; and takes only that action necessary to clarify the requirements and to protect the public interest under the emergency procedure. SUMMARY: This Supplement to Emergency Rule sets forth the criteria and information that should be provided by nursing homes seeking an emergency variance on the grounds that, for reasons outside their control, full implementation of the Emergency Power Plan is not feasible within the sixty (60) day timeframe required by the Emergency Rule. This Supplement does not repeal or modify the requirements of the Emergency Power Plan Rule. The Agency will consider the reasonable efforts undertaken by a nursing home to provide the protections contemplated by the Emergency Rule. Administrative action or sanctions for non-compliance with the Emergency Rule will be evaluated based upon the information submitted by the nursing home in conjunction with any variance request under existing law (see § 120.542, Florida Statutes) along with such additional information as may be available to the Agency. THE PERSON TO BE CONTACTED REGARDING THE EMERGENCY RULE IS: Kimberly Stewart, Agency for Health Care Administration, Division of Health Quality Assurance, Bureau of Health Facility Regulation, 2727 Mahan Drive, MS# 28A, Tallahassee, FL 32308 or at BHFR@ahca.myflorida.com. THE FULL TEXT OF THE EMERGENCY RULE IS: Rule 59AER17-2, Variances from Nursing Home Emergency Power Plan Rule. Rule 59AER17-1, Nursing Home Emergency Power Plan, calls for implementation of a plan within sixty (60) days (the “Sixty-Day Period”) of its effective date. Variances from Rule 59AER17-1, Nursing Home Emergency Power Plan, may be granted by the Agency pursuant to section 120.542, Florida Statutes and Rule 28-104.004-104.005. To facilitate the timely consideration of requests for variances or waivers, in addition to the requirements of Section 120.542, Fla. Stat. and Chapter 28-104, F.A.C., a nursing home seeking a variance from any of the requirements of Rule 59AER 17-1 may provide a sworn affidavit from the Administrator of the nursing home that addresses the following: steps the nursing home has taken to implement the detailed plan required by Rule 59AER17-1 (the “Detailed Plan”) within the Sixty-Day Period; specific circumstances beyond the control of the nursing home that have prevented full implementation of the Detailed Plan within the Sixty-Day Period; arrangements the nursing home has made pending full implementation of the Detailed Plan to ensure that residents and patients of the nursing home will not be exposed to ambient temperatures above 80 degrees Fahrenheit in the event of power failure or loss of air conditioning due to loss of electrical power; a delineation of the steps remaining for full implementation of the Detailed Plan and the nursing home’s estimate of the time needed to fully implement the Detailed Plan called for by the Emergency Power Plan Rule; and, all steps taken by the nursing home to provide notice to each resident or patient and, if applicable, to the resident’s or patient’s legal guardian or health care surrogate that the nursing home has applied for a variance or waiver from Emergency Rule 59AER17-1 and the steps that the nursing home is taking to comply with the Emergency Rule. The nursing home’s request for a variance shall be posted on the Agency’s website. Once notice has been provided as required in this Rule and the information related to the nursing home’s request has been posted on the Agency’s website, the Agency will consider the request for variance and the accompanying proof. If the Agency determines from the petition and any accompanying proof offered by the nursing home: that the nursing home has made all feasible efforts to implement the Detailed Plan within the Sixty-Day Period; circumstances beyond the control of the nursing home have made full and timely implementation impossible; and that satisfactory arrangements have been made to ensure the residents and patients will not be exposed to ambient temperature above 80 degrees Fahrenheit in the event the nursing home is without electric power, the Agency will grant a variance of the Sixty-Day Time Period for implementation of the Detailed Plan under the ‘principles of fairness’ standard in §120.542 for a period no longer than 180 days as to the nursing home, subject to such conditions the Agency determines are appropriate under the circumstances. The Agency will not assess a fine during the period of the variance if the agency grants a variance under Florida law. The variance rule pertaining to ALFs was virtually identical to the variance rule for nursing homes, and both variance rules (collectively referred to as “the Emergency Variance Rules”) took effect upon their filing with the Department of State on October 12, 2017. The Existence of an “Emergency” and Whether Nursing Homes and ALFs Can Comply by November 15, 2017 AHCA and DOEA relied on the same statements in order to justify the Emergency Rules. However, the greater weight of the evidence demonstrates that despite the tragic but singular events at Hollywood Hills, there is not “an immediate danger to the public health, safety or welfare” to constitute an emergency. One justification for the Emergency Rules was that, “According to the United States Census Bureau, Florida has the largest percentage of residents age 65 and older in the nation.” AHCA admitted that Florida has had a high percentage of residents age 65 and older for decades. The presence of elderly populations in Florida is not an emergency situation. Another justification for the Emergency Rules was that, “According to the Centers for Disease Control and Prevention, people age 65 years or older are more prone to heat- related health problems.” AHCA admitted that this situation was not new or emergent. The effects of prolonged heat exposure on the elderly have been known for years. Another justification for the Emergency Rules was that, “Thousands of frail seniors reside assisted living facilities [and nursing homes] in Florida.” Again, AHCA admitted that thousands of frail seniors have resided safely in nursing homes and ALFs for decades. This is not an emergent situation that might justify the Emergency Rules. In order to justify the Emergency Rules, AHCA and DOEA also cited “an incompetent response” by one nursing home in Hollywood Hills, Florida, that resulted in the deaths of several residents. AHCA took appropriate and swift action by immediately suspending Hollywood Hill’s license to operate a nursing home. There was no evidence at the final hearing indicating that the tragic situation at Hollywood Hills was representative of the situation at any other facilities. The fact that there were no similar incidents at any of the multitude of other nursing homes and ALFs affected by Hurricane Irma suggests that it was not. The Agencies’ position that an emergency exists is undermined by: (a) the fact that the Secretary of AHCA invited facilities to consider applying for a variance almost immediately after adoption of the Emergency Rules; and by (b) the Agencies’ adoption of the Emergency Variance Rules. If Floridians are truly in immediate danger, then whether the protections of the Emergency Rules affect a particular nursing home or ALF differently than they affect another nursing home or ALF (the “principles of fairness” standard referred to in the Emergency Variance Rules) should not matter. The Agencies’ justification for adopting the Emergency Rules is further undermined by the fact that there are only 15 days between November 15, 2017 (the date when the Emergency Rules go into effect) and November 30, 2017 (the last day of the 2017 hurricane season). As a result, the Emergency Rules will only be in effect for the final two weeks of the 2017 hurricane season, and the requirements of the Emergency Rules will not be realized until well after the end of the 2017 hurricane season. Furthermore, Hurricane Irma was a unique storm in that it impacted the vast majority of the State due to its sheer size and the course it took directly northward through the Florida peninsula. While Florida’s emergency response personnel performed admirably, they and the resources they utilized were severely taxed due to the amount of the State impacted by Hurricane Irma. Fortunately, the evidence presented at the hearing indicates it is meteorologically unlikely that another storm like Hurricane Irma will strike Florida this late in the 2017 hurricane season. While not cited in the preamble as a justification for the Emergency Rules, Molly McKinstry,9/ AHCA’s agency representative, testified about how facilities need to be more self-sufficient during natural disasters such as Hurricane Irma. In other words, facilities should be able to take care of their residents on-site if disaster strikes and emergency response personnel are unable to quickly restore public services. None of the Petitioners argued that requiring nursing homes and ALFs to be more self-sufficient was not a good idea or that they had already achieved an adequate amount of self- sufficiency. However, even if one were to conclude that a lack of self-sufficiency for nursing homes and ALFs requires prompt action, the greater weight of the evidence demonstrates that it is not an “emergency” that can be resolved by November 15, 2017. As demonstrated from the findings of fact above, the greater weight of the evidence demonstrates that it is impossible for the vast majority of nursing homes and ALFs currently noncompliant with the Emergency Rules to achieve compliance by November 15, 2017.
