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How Florida’s lax oversight of elder care homes undermines its COVID-19 response

State officials have waived rules for nearly 100 facilities that require backup generators. The homes got the waiver in exchange for a quick fix that exacerbates a pandemic that has claimed more than 600 long-term care residents in Florida.

TALLAHASSEE — Florida’s solution for one potential crisis — the failure of nearly 100 elder-care facilities to comply with the state’s emergency power law, even as hurricane season approaches — is to allow the homes to pack all their residents into a confined space to keep them cool during a power outage.

But the plan, spelled out in a series of orders signed by health regulators the past two weeks, could collide with a far deadlier crisis: the coronavirus pandemic, an extraordinarily contagious menace that already has claimed the lives of more than 600 long-term care residents.

The last time Florida long-term-care facilities faced a disaster — Hurricane Irma, which cut off power across the state and led to more than a dozen miserable deaths in one sweltering Hollywood nursing home — the state took action, mandating that all homes have backup generators to kick in during a power outage.

Related: After Hollywood Hills nursing home horror, Florida Legislature wants new laws

But when the emergency passed, the state declined to enforce the rule, and granted variances to scores of homes that called it a hardship.

Now, with the industry in the grips of the worst pandemic in a century, Florida health administrators quietly handed out 95 more variances for the month of May. For some homes, it was the fifth time they had been given a pass.

The variances seem to be nearly identical to the ones dispensed liberally to laggard homes since 2017 — with one exception. In previous years, elder-home administrators were not fighting an often-invisible virus that preys on frail elders.

The pandemic has killed at least 665 residents of Florida nursing homes and assisted living facilities, accounting for 40% of all deaths from COVID-19, the illness caused by the virus. Fourteen of the homes that received variances are among those with coronavirus-related deaths, accounting for 55 of the fatalities.

“We have been worried about this,” said Dave Bruns, spokesman for AARP Florida. “That is the usual practice within the industry for dealing with emergency cooling: Move everybody into one big area, and then cool that area.”

“That certainly would address the overheating concerns,” Bruns added. “The problem is that it is liable to kill them if coronavirus is spreading in the area.”

Bruns said that on Thursday, 90 percent of the 60 coronavirus deaths in Florida reported that day alone originated at an elder-care facility. “What’s happening in these long-term care facilities in Florida is a national embarrassment. Having a pandemic in the middle of a hurricane would be even worse.”

The waivers from Florida’s emergency power rule, all approved by Agency for Health Care Administration Secretary Mary Mayhew between April 23 and May 5, apply only until June 1, when hurricane season begins. It is extremely unlikely the homes will have generators installed by then, though, as most already are straining to cope with the pandemic.

And if the state takes the same approach it has in the past two years, the 95 variances will be extended past June 1 and into the teeth of the hurricane season.

“I can’t imagine the state finding a way to enforce that law vigorously, especially now,” said Larry Polivka, executive director of the Claude Pepper Center, which studies aging-related issues at Florida State University. The long-term care facilities, he said, have “gotten away with not funding the acquisition of generators when they were presumably in much better financial shape.”

He added: “Now is the worst possible time.”

Mayhew, a former health commissioner in Maine, said late Friday that her agency planned to visit “every facility not in compliance” with the emergency power law before June 1, and that “no additional variances will be granted.”

Since May 1, Mayhew said in a prepared statement, the Agency for Health Care Administration “teams have conducted 98 generator reviews. Many facilities were intent on exceeding the requirements of the rule by installing generators capable of cooling the entire facility. This has contributed to delays due to necessary permitting and construction requirements.”

All Florida nursing homes have an onsite generator, Mayhew said, adding the Agency for Health Care Administration has imposed $166,000 in fines against 387 facilities for violating the law. “Eight facility licenses have either been revoked or their renewal was denied due to non-compliance,” Mayhew said.

She added: Florida "is focused on the health and safety of residents and patients at all health care facilities we regulate, especially the vulnerable populations who reside in nursing homes and assisted living facilities.

Kristen Knapp, spokesperson for the Florida Health Care Association, a trade group representing nursing homes and assisted living facilities, said that the coronavirus crisis has made the jobs of her members far more difficult, but “Our focus is always resident safety.”

Knapp said that critical to handling a power outage will be the amount of personal protective equipment at nursing homes. The Miami Herald has reported that despite claims of ample supplies, staff members at many nursing homes say they have not been given the kinds of supplies to keep them safe.

Related: Florida's testing policy an 'unmitigqted disaster' for its elder care home residents

Personal protective equipment "is going to be really critical here, making sure that everyone is wearing their masks — staff and residents — and that is key to ensuring safety if we have a power outage,’‘ she said. “If you need to move them to one area to be cooled, make sure everything is ready.”

Florida’s emergency power rules for elder-care homes resulted from one of the state’s worst hurricane-related disasters: On Sept. 13, 2017, eight residents of the Rehabilitation Center at Hollywood Hills died of heat-related medical complications after the home’s emergency cooling system failed. Several other residents died later, and the Broward medical examiner called 12 of the deaths homicides.

Last September, Hollywood police charged four of the home’s employees, including administrator Jorge Carballo, with manslaughter. The charges are pending.

Later that year, the Agency for Health Care Administration imposed a rule requiring nursing homes and assisted living facilities to either install generators capable of ensuring the safety of all residents, or secure some alternative means of doing so. The next year, the Florida Legislature added the rule into state law.

In the three years since the tragedy, however, state health administrators have repeatedly allowed about 100 elder-care homes to escape the requirements.

About 68 percent of the state’s 691 nursing homes have installed generators and fuel tanks to comply with the 2017 rule and 2018 law. Another 102 facilities have obtained variances from the law. But 17 percent of the licensed providers have neither generators nor variances, state records show.

In contrast, more than 91 percent of assisted living facilities have complied with the mandate, in part because many of them are much smaller, and generators to power assisted living facilities can be bought from home improvement stores rather than electrical contractors.

Several long-term care facilities have been granted variances by the state every year since the rule was passed. Elder advocates howled at the danger ignoring the law presented.

In recent months, regulators and state leaders promised to get tough on the elder-care homes lacking generators.

On April 25, Mayhew told members of the governor’s task force to reopen the state that her agency has been working with the long-term care industry to implement the law, but some nursing homes have been unable to comply because of the “size and scope of their facilities and the magnitude of generators they needed on site.”

Mayhew told the panel her agency would continue to “push for the permanent generator to be installed.”

But over the next two weeks her agency quietly approved at least 95 variances to give the homes until June 1 to comply.

'NO MERCY’

A member of the task force, incoming Senate President Wilton Simpson, warned he would not look favorably on individual nursing homes and assisted living facilities that have flouted the law but are now seeking protection from negligence lawsuits during the coronavirus pandemic.

“I would suspect the state would have no mercy on folks who are not doing what they are supposed to be doing, or should be doing,” Simpson, a Republican from Trilby, told Mayhew. “And if you are one of the facilities of critical care, you need to get your generators in place. Hurricane season starts June 1.”

In 2018 and 2019, most of the variances approved by the agency in April were renewed in June and remained in place for the hurricane season.

For Golden Glades Nursing and Rehabilitation Center in Miami, where four people have died of the virus, the new variance was the latest of five granted since November of 2017.

That year, Golden Glades administrators said in a petition that the generator rule gave them only 60 days with which to comply, and “despite diligent attempts to secure the necessary equipment,” it was “impossible” for the home to have a power source installed by deadline. The facility included a letter from its contractor documenting the efforts.

The next year, Golden Glades repeated the claim: “Despite diligent attempts to secure the necessary equipment,” a Sept. 28, 2018, petition said, “it is impossible” for the home to comply with the state law. The exact language appeared yet again in Golden Glades’ May 14, 2019, petition for “reasonable time” to comply with the law.

The reasonable time appears to have been six months. But on Dec. 11, 2019, Golden Glades sought yet another extension, claiming once again that it was “impossible” to comply with the then-three-year-old rule. For the fourth time, the Agency for Health Care Administration granted the waiver.

Golden Glades’ most recent waiver request is dated April 29. It was granted the same day. It requires the home to “make arrangements” for “an area or areas [for residents] to congregate” that can be kept cool for at least 96 hours.

“We understood that this was going to be a difficult permitting and engineering challenge for the industry,” said Bruns with AARP. “But it’s been three years. Three years is long enough.”

The company that owns the 180-bed nursing home, SentosaCare, could not be reached Friday. A number attached to the company on a business listing was disconnected, and a number at the company’s Long Island, New York, headquarters said the office was closed. A call to Golden Glades’ administrator was not immediately returned.

Last October, a federal judge in Brooklyn ruled that SentosaCare’s efforts to “coerce” 200 underpaid Filipino nurses to remain on the job amounted to human trafficking, clearing the way for a lawsuit against two owners. The company said it never threatened the healthcare workers to keep them working.

Golden Glades has seen challenges for much of the past decade.

In September of 2011, federal health regulators imposed one of the largest Florida nursing home fines in history, a $300,000 sanction following the death of a severely disabled Tampa girl, Marie Freyre, who perished only hours after being admitted to the home. An investigation showed caregivers neglected to give Marie her life-sustaining anti-seizure drugs.

The home has changed owners twice since then. In addition to the $300,000 federal penalty, it has been fined six times by the Agency for Health Care Administration since 2011, for a total of $37,200.

In October, the Agency for Health Care Administration inspected the home as part of the new owner’s application process. The survey found seven separate violations, including failing “to provide and implement an infection-prevention and control program,” failing to provide appropriate treatment and care, and failing to honor residents’ rights to “a safe, clean, comfortable and homelike environment.”

The October inspection showed the nursing home had holes in some walls, a leaking air conditioner fixed with a towel on the floor, an exposed water pipe, and damaged walls, baseboards, a ceiling tile, window sill and bed frame. Another inspection revealed that the sink in one resident’s bathroom “was not in good condition, and there were pieces of tile on the floor.”

The facility’s treatment room, the report said, was so damaged that it needed to be “shut down for repairs.”

One of the home’s residents told inspectors that he was in severe pain from a toothache and needed an extraction, but his caregivers told him he couldn’t see a dentist “because he received hospice care” — apparently meaning the resident was going to die anyway. “There is nothing they can do about it,” the man said he was told.

The inspection also documented problems with sanitizing a large sink in the kitchen where food was present. “Staff was not observed practicing proper hygiene throughout the observations,” the report said.

Currently, Golden Glades is among 460 elder-care facilities fighting COVID-19 infections, 288 of them nursing homes, another 172 assisted living facilities. Data released this week by Florida health regulators show at least 15 current Golden Glades residents have tested positive for the virus, while 11 other residents with confirmed cases were transferred out. Three of the home’s residents have died from the illness.

Though Golden Glades does not have an emergency generator, the Agency for Health Care Administration’s consumer-oriented website implies that it does. The agency provides a handful of details under the heading “Emergency Power Plan Summary.” For “Onsite Alternative Power Source,” the Agency for Health Care Administration wrote “fixed generator,” and suggested the unit could power air conditioning, refrigeration and “life safety systems.”

As it does for all of the non-complying homes, the Agency for Health Care Administration fails to inform consumers that Golden Glades has never implemented the power plan.

‘SEEMS IRRESPONSIBLE’

Simpson said Thursday he hasn’t changed his mind and the grace period for most of these homes should be over.

“This is 2020, two years after we passed this law. It just seems irresponsible to me that people should ask for a waiver at this point,’’ he said.

When the task force raised the issue of protecting nursing homes and assisted living facilities from liability from COVID-19-related lawsuits, there was a discussion about the homes that have failed to meet the 2018 requirement to install backup generators, he said.

“If you are not doing the right things, you should not have those kinds of protections,’’ he said. “You need to have done everything possible to earn that protection. If we have a tragedy, or we lose lives because of it, I would think they would have a disproportionate amount of liability.”

He said he has heard from some in the industry that the reason for the delay has often been local governments that have imposed hurdles to getting the proper permits, but he also suspects others are dragging their feet.

He said he also has questions about the Agency for Health Care Administration issuing variances every year as hurricane seasons draws near.

“Whatever the problems have been, they are probably not a good enough excuse for not complying,’’ he said.

The situation is enough to persuade him that the Legislature should reopen the issue when it returns later this year.

“Maybe the Legislature is going to have to take a look and consider some economic penalties because they’re generally the kind of incentive required to get people to do the right things,’’ Simpson said.

Simpson said he has used backup generators for more than 20 years on his egg farm to protect chickens. But, he said, nursing homes “are dealing with humans and I don’t see where there’s an adequate excuse not to have a backup generator.”

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