This article is by Elizabeth Koh and Nicholas Nehemas
After a dozen elders overheated and died in a Hollywood nursing home during Hurricane Irma, the state passed new rules requiring health facilities to install backup generators capable of keeping the air conditioning blowing if the power went out.
But the state healthcare agency — which regulates institutions like nursing homes and assisted living facilities — may not inspect all the generators before storm season starts and the mandates take effect June 1.
Instead of doing immediate inspections, the Agency for Healthcare Administration has no plans to change its existing schedule for license reviews, which sees facilities inspected once every two years, according to a source familiar with agency deliberations who asked not to be identified, according to the Miami Herald. That means some generators won't be inspected by AHCA before the storm season starts or possibly even before the season after that. There are nearly 3,800 nursing homes and ALFs around the state.
Local fire departments also inspect nursing homes annually for life and safety, meaning the generators could be checked then.
AHCA said it plans to conduct inspections specifically for the generator rule, but did not state any schedule for when those inspections will occur or whether the agency expects to meet the June deadline.
"Before a nursing home will be considered in compliance with the rule, our Office of Plans and Construction will complete an inspection," said AHCA spokeswoman Mallory McManus. "We will keep you updated as we move forward."
The rules passed by the Florida Legislature and signed by Gov. Rick Scott Tuesday require healthcare facilities to submit a safety plan verifying they have installed a working generator or alternate power source that can supply electricity for a maximum of 96 hours.
AHCA is tasked with reviewing the new emergency power plans for the required generators, but the rules set few requirements for how the agency will ensure the plans are being followed.
"There's so much latitude given to the agency, they don't even know what their enforcement's going to be," said Brian Lee, a former long-term care ombudsman who now works for an advocacy group. "AHCA just does not have the manpower and the resources that they need to have to make sure [these generators] are all in place."
The new rules also state that AHCA "may request cooperation" from Florida's fire marshal to inspect the generators.
That's a big change from an emergency version of the rules passed days after the deaths in Hollywood. The earlier rules ordered the state fire marshal to conduct physical inspections 15 days after generators were installed. But that provision ended up being watered down.
For a decade, the nursing home industry fought legislative pushes to install backup generators before the tragedy at the Rehabilitation Center at Hollywood Hills in September forced Scott to act.
Penalties for not following the rules were lessened, too. Originally, facilities could be fined up to a $1,000 a day and lose their license. Now, the language is more vague. Current penalties include but are "not limited to, license revocation, license suspension, and the imposition of administrative fines." AHCA may also grant extensions until January 2019 for generator installation.
In the dark
For now, county emergency management departments will have to visit the facilities if they want to check on the generators meant to protect Florida's most vulnerable residents ahead of storms.
Broward County, which oversaw the deadly Hollywood Hills home, is now doing that, although it isn't actually performing physical tests on the generators. But Miami-Dade County says it won't conduct visits to ensure generators have been installed.
"It is the Agency for Healthcare Administration's responsibility under state statute to conduct physical inspections," Charles Cyrille, division director for Miami-Dade's Office of Emergency Management, said in an email.
Palm Beach is taking the same approach.
"We do not do on-site inspections," said Mary Blakeney of Palm Beach's emergency management department. "We review the written [safety] plans."
Pinellas County's emergency management office said they are also reviewing only the emergency power plans and do not plan on conducting physical checks.
There are 54 nursing homes in Miami-Dade and nearly 850 assisted living facilities, according to state data. Palm Beach has 55 nursing homes and more than 170 ALFs. Pinellas has 70 nursing homes and nearly 200 ALFs.
The 12 deaths at Hollywood Hills are being investigated as homicides. The elders died after the center lost power to its main AC unit and workers dragged in portable coolers to help keep sweltering temperatures down. But those portable coolers weren't ventilated properly and likely made conditions even hotter, according to an engineering expert hired by the state to testify during ongoing litigation between AHCA and the home over the loss of its license.
Shortly after the Hollywood tragedy, Scott directed the state to issue emergency rules requiring generators in long-term care facilities. But industry groups pushed back on the requirements, leading to months of legal disputes. Both sides eventually compromised on the requirements in January, and the more lenient requirements passed in the last week of the legislative session.
"The Legislature's ratification of the nursing home generator rule is another important step to ensuring Florida remains a leader when it comes to taking care of our seniors, especially during disasters," Emmett Reed, executive director of the nursing home group Florida Health Care Association, said in a statement after the rules were ratified. "We appreciate the Legislature, Governor Scott and the Agency for Health Care Administration for allowing us to be part of the discussion and considering our recommendations as this rule was developed."
After the deaths last year, Broward County's emergency management division began performing on-site visits to healthcare facilities, including hospitals, nursing homes and assisted living facilities. Those visits include checks on generators.
"This is a priority," said Lori Vun Kannon, assistant director of the emergency management division. "We're trying to get a good majority of the [nursing] homes done before the season and throughout the season."
The checks involve county officials making sure generators or another power source are present, examining contracts to make sure there is adequate fuel and a refueling plan, looking at logs of maintenance tests and reviewing staff training, Vun Kannon said. However, any physical testing of the generators will have to be done by AHCA or local fire departments, she added.
Those tests could well be needed: Generators are complicated devices that can take a long time to install — as long as 38 weeks, according to Reed of the nursing home trade group.
"Installing generators is extremely complex," he said during a meeting to discuss the new rules in Tallahassee last year.
Because Broward's emergency management division has a small staff, it will be impossible to examine all of the county's more than 300 nursing homes and ALFs before storm season. Moreover, the visits are assessments rather than true inspections, according to Miguel Ascarrunz, Broward's top emergency management official.
"The plan approval process is still a paper review, as long as they meet all the checklist criteria elements to include in their plan," Ascarrunz told the Miami Herald in January.
And those plans — which are submitted first to county emergency management departments and then AHCA — have flaws.
Broward emergency planning officials signed off on Hollywood Hills' emergency plan although it lacked crucial details and had sections copied-and-pasted from previous years.
The Herald reviewed existing nursing home emergency plans from Miami-Dade last year and found some of them to be largely inadequate, even if they'd been approved by county officials.
One in four of the 54 plans for Miami-Dade nursing homes had large sections that were blank. One in three said the homes did not keep a week's worth of emergency rations, as required by state law. Broward and Palm Beach counties refused to release their plans, citing security concerns. The lack of transparency means South Florida residents aren't able to judge how well those facilities are equipped to care for their parents and loved ones.