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New Developments in the Aftermath of Irma

Shortly following the hurricane that left many in Florida without power and resources for days on end, Florida Gov. Rick Scott issued an executive order requiring nursing homes and assisted living facilities to install backup generators within 60 days of the order. As discussed in the recent NIC blog on the order, the potential for a challenge to the measure could impact the timeline or requirements of the Governor’s executive order. While the Florida Health Care Association (FHCA), representing most of the state’s nursing homes and which convened to discuss the rule following the announcement, expressed its support for the measure, others object to the requirements. LeadingAge Florida, which represents non-profit nursing homes and other sectors that provide housing and services to seniors in the state, filed a legal challenge against the rule September 26. Florida Argentum and the Florida Assisted Living Association also filed challenges. Following the LeadingAge challenge, Miami city commissioners gave approval of legislation similar to Gov. Scott’s executive order. Meanwhile, advocates in Ohio have expressed the need for comparable rules in their own state.

A recent Huffington Post article argues that the tragedy that took place in Florida, where 11 nursing home residents died as a result of lost power to the air conditioning system, could have taken place anywhere. In fact, facilities in Florida may be even better prepared today than facilities in other states: “Most of the state’s nursing homes were prepared for Hurricane Irma, said FHCA spokeswoman Kristen Knapp, who noted that the group’s members hold trainings and drills multiple times a year to ready themselves for potential storms.” Knapp added that Florida providers “live in a hurricane-prone state, so emergency preparedness is at top of mind for our facilities.” Despite the opinion that Florida providers are prepared to handle emergencies, the group nonetheless expressed support for Gov. Scott’s measure. The group stated in a press release:

“As we have expressed before, FHCA supports the Governor’s goal to further harden nursing centers against disasters. We also commend the Governor for his steadfast leadership throughout Florida’s preparations, response and recovery associated with this historically dangerous event. ”

While the FHCA supports the executive order, LeadingAge Florida filed a legal challenge to the measure with the Florida Division of Administrative Hearings. Explaining his group’s position, LeadingAge Florida President and CEO Steve Bahmer said, “It is not a lack of willingness to comply with the governor’s objective. The problem is every expert we talked to in every related field that we would rely on has said that 60 days is just not possible.” In the petition, LeadingAge explains that the timeline is unrealistic for compliance in part because the rules are enforceable during the current hurricane season, which ends November 1.

Furthermore, the next hurricane season does not begin until June 1, 2018, making the 60-day timeline unnecessarily compressed. LeadingAge Florida also takes issue with the severity of the penalty for failure to comply, which is $1,000 per day. The challenge also details feasibility challenges, such as the supply of contractors to provide custom generators, the need for local permissions to store fuel, and the availability of state inspectors to approve the generators. Whether the state will side with LeadingAge in this matter is unclear, but the Florida Division of Administrative hearings is acting quickly to address the challenge. LeadingAge Florida is joined by Florida Argentum and the Florida Assisted Living Association, which filed similar challenges on September 29 and September 27, respectively. Also on September 29, just three days following the filing of the first petition, a pre-hearing conference was held. The three challenges have since been consolidated, with a hearing scheduled for October 12 and 13. On October 3, Florida Argentum petitioned the state to issue an injunction on the rule, which could delay the requirements until the legal challenge is complete. Considering the 60-day window for the rule, operators in the state may be taking a risk to wait for the courts to come to a conclusion before moving to install the required generators. Barring the success of the injunction or the legal challenge, operators will be charged a $1,000 daily fine for noncompliance beginning November 15.

Seniors housing and care properties still in development in Miami may have a greater incentive to move quickly on generator installation. According to the Miami Herald, “The city’s elected leaders gave tentative approval to legislation that would require assisted living facilities, group homes and city-subsidized affordable housing projects to install a working generator with sufficient fuel to run the complex after the power goes out. The law also requires the facilities to have their staff on-site within 24 hours of a hurricane, or as soon as safely possible.” The first vote resulted in a 4-0 decision in approval of the legislation (one commissioner was absent). The measure, which applies to new facilities seeking approval, will be voted on twice more before becoming law.

The aftermath of Irma may have consequences for providers in other states, as well. Reeling from the events in Florida, advocates in Ohio are now calling for stricter emergency preparedness requirements in their own state. Advocates told the Cleveland Plain Dealer that current regulations are too lax. William Eadie, an attorney in Ohio who represents nursing home residents, explained, “Most families would be stunned to know that if the power goes out, their loved ones would have to be moved to have air conditioning or power.” Whether other states will hear similar calls for stricter regulations has yet to be seen. The tragedy in Florida resonates with providers and advocates across the country and may be a catalyst for new rules at the state level.

The bottom line for providers in Florida and elsewhere is that emergency preparedness remains a talking point on the agenda. Whether providers in Florida should leap to comply with the executive order or wait to see how the LeadingAge Florida challenge turns out is uncertain. Even operators in other states may consider improving emergency preparedness investments now in advance of new rules that could be imposed as a result of Hurricane Irma and its aftermath.

It is notable that in the weeks following Harvey and Irma, NIC conducted an informal survey of operators in the Texas and Florida markets (We have not been able to do the same for Puerto Rico since our statistics do not cover this U.S. territory).  With little exception, seniors housing and skilled nursing operators had extensive evacuation plans in place to move residents to higher ground, drier properties or protected shelters.  A number of operators reported that their evacuation plans included the movement of not just residents, but staff and the family members of staff as well.  And many operators reported that their fellow operators opened up their communities to evacuees that needed appropriate service offerings and housing.  In Florida, several operators had evacuation plans to Disney hotels and resorts since Orlando is 82 feet above sea level and the hotel had significant vacancies as tourists remained away.  Based on our survey, it appeared that a limited number of properties suffered moderate damage from water intrusion to walls and roofs and HVAC systems, while even fewer suffered permanent damage.  Disaster restoration companies were employed quickly.  As of this writing, most residents had safely been returned to their seniors housing homes.

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