How a bill requiring Florida nursing homes to have backup AC died

Six Hollywood nursing home residents died Wednesday morning after falling ill in a building left without air conditioning after Irma blasted South Florida. [Emily Michot | Miami Herald]
Six Hollywood nursing home residents died Wednesday morning after falling ill in a building left without air conditioning after Irma blasted South Florida. [Emily Michot | Miami Herald]
Published Sept. 15, 2017

In the aftermath of 2005's destructive Hurricane Wilma, Florida lawmakers approved laws to protect motorists at risk of getting stranded on the interstate, and residents of new highrises who can't climb stairs.

Proposed at the same time: a bill that would have required some nursing homes to have generators to protect frail elders from the ravages of heat and dehydration.

That bill died.

Cause of death: industry opposition and government miserliness.

The initial idea in the 2006 session was to require all nursing homes to install generators capable of cooling and running their facilities. That went nowhere as the powerful long-term care industry objected to the price tag.

A compromise bill would have set aside about $57 million to reimburse half the cost for some nursing homes that were willing to install full-service generators — and accept other nursing home residents who were being evacuated.

The legislation passed almost unanimously in the House of Representatives, but was derailed in the Senate.

"The Legislature is horrible when it comes to everything that doesn't have a tragedy behind it," said then-Rep. Dan Gelber, who sponsored the legislation in the House. "They have one now."

"Now that there are dead residents in an unthinkable tragedy, they'll probably solve the problem," added Gelber, who is a candidate for mayor in Miami Beach.

On Wednesday, eight residents of the Rehabilitation Center at Hollywood Hills perished after the home lost power and a portable cooling system malfunctioned in the wake of Irma. The Hollywood Police Department, along with healthcare and elder protection administrators, have begun investigations. All of the nursing home's 140 or so surviving residents were evacuated, and the state Agency for Health Care Administration froze new admissions.

There will likely — now — be intense pressure on lawmakers to ensure no other elders die in sweltering homes for lack of air conditioning.

On Thursday, Miami-Dade Mayor Carlos Gimenez said he would pursue local legislation requiring generators strong enough to operate air conditioners at government-subsidized senior housing if state lawmakers don't act. He said the process of evacuating elderly residents with medical needs is too daunting after a severe hurricane sparks widespread evacuations and broad damage.

"It's much easier to provide logistics for refueling generators than it is to provide care for tens of thousands of people," Gimenez told reporters at an afternoon briefing. "This may be one of the lessons learned from this hurricane."

The Florida Health Care Association, the nursing home industry's trade group, said Thursday afternoon that 56 of the state's 683 nursing homes were still without commercial power. The state reported that 45 nursing homes were evacuated or closed, including 29 that moved residents after the storm.

Generator power has been an ongoing concern for nursing homes and assisted living facilities since Irma approached the state as a leviathan that alternated between a Category 5 — the deadliest — and Category 4.

On Friday, as Irma approached, Gov. Rick Scott and his top healthcare advisors held an hour-long conference call with executives from hospitals, nursing homes and assisted living facilities across the state.

The industry representatives raised concerns about the availability of generators, the shortage of staff — as many low-wage workers stayed home to evacuate their families instead of showing up for work, said Kristen Knapp, the health care association's spokeswoman. And they worried about evacuation, as many homes had moved residents from South Florida to another area of the state that then became a mandatory evacuation zone.

The majority of the questions came from the ALFs, Knapp said. She said the daily calls included a representative from Florida Power & Light, which had a dedicated nursing home team that would "make their power outages a priority."

By Tuesday, the lack of generators, especially at ALFs, continued to be a focus of attention for state officials after the storm made landfall.

As Gov. Scott toured the state Emergency Operations Centers with former University of Florida quarterback Tim Tebow, one of his top aides updated the governor on the issue.

"We do have some generators," Justin Senior, AHCA's secretary, told the governor.

The 2005 hurricane season was one of the worst in recent memory. It included Katrina, which later devastated New Orleans when its storm surge broke levees and flooded homes, and Wilma, a powerful Category 3 that tore through the Everglades and left a record-breaking 98 percent of South Florida without power. Wilma alone caused $20.6 billion in damage.

Nursing home administrators met at a summit at the University of South Florida in 2006 to discuss the lessons they'd learned, and to plot a strategy to avoid getting caught flat-footed in the future. A report from that summit said the industry needed to develop a power grid that prioritized nursing homes and other "critical care" facilities.

The group urged providers to contact power companies in the off-season and communicate the needs of their patients, and named generator-powered air conditioning as one of four general considerations when planning for a disaster.

Skip Gregory, a longtime administrator at AHCA, said he supported an industry initiative to include nursing homes among the highest-priority customers when electrical utilities deployed to restore service after hurricanes.

FPL and other utilities fought the effort, said Gregory, an architect who served as AHCA's bureau chief in the Office of Plans and Construction from 1993 through 2010.

"It's a slippery slope for them," Gregory told the Miami Herald.

"Their argument was if it went to nursing homes, then [assisted living facilities] would come back and say 'what about us?' My conversations with them were always 'if we do it for them, we have to do it for everybody' — and then have no priority."

FPL did not respond to calls and emails from the Herald seeking comment.

Ultimately, the utilities insisted that only patients on life support — meaning hospital patients — be a priority, Gregory said.

That left the issue of generators, and several lawmakers — especially some from the hurricane-magnet that is South Florida — badly wanted to pass a sweeping law that would require all nursing homes to equip themselves with generators powerful enough to keep residents cool and safe during a power outage.

State health care administrative rules require that nursing homes maintain a generator to sustain life-saving equipment, such as nursing call buttons, fire alarms, and breathing machines. The generators don't have to power air conditioners, and many don't, including Rehabilitation Center of Hollywood Hills.

Walter G. "Skip" Campbell, the mayor of Coral Springs, chaired the Senate's Children, Families and Elder Affairs Committee at the time, and remembers the resistance lawmakers encountered from a long-term care industry that was — and is — accustomed to getting its way.

"We did it for gas stations," he said Thursday, referring to a generator mandate. "We wanted to do it for nursing homes, but the lobbying crew was too powerful.

"Lots of people did not have electricity. A lot of people did not have fuel to get around. And a lot of people were experiencing Florida weather in such a way that we felt generators were necessary, in certain places like nursing homes," he added.

A group of mostly South Florida lawmakers cobbled together a bill that Gelber calls "the possible." The intent, an analysis said, was "to encourage nursing home facilities to have an emergency electrical power system to allow these facilities to remain fully operational during and after an emergency."

The details were far less ambitious. The bill created a two-year pilot program in five South Florida counties — Broward, Collier, Miami-Dade, Monroe and Palm Beach — in which nursing homes with mostly clean records could be partially reimbursed by the state if they installed generators and agreed to accept residents from other homes that had to evacuate. The reimbursement was to be "based on available funds," an analysis said, which means the project would be subject to fiscal realities and legislative whim.

Gelber, the House sponsor, acknowledged his group "would never get anywhere" with a requirement that every nursing home have a generator.

Knapp, the industry spokesperson, said the association supported the 2006 proposal to give partial reimbursements to facilities that chose to purchase emergency backup generators.

"While the legislation was ultimately not successful, the vast majority of nursing homes in the state continue to modernize their backup systems, including installing backup generators and other supplemental systems,'' she said Thursday.

Knapp added that state rules require every nursing home "to have access to alternate power sources" and "submit a detailed emergency preparedness plan to local emergency management officials that outlines the policies and procedures in place to ensure that residents continue to have their needs met before, during, and after a natural disaster."

Gelber said that while the industry was the greatest foe of a sweeping bill, health regulators weren't particularly keen on it either.

"The nursing home industry did not want a mandate. They pushed back very hard against a mandate for generators," adding that state regulators were far more interested in pursuing better evacuation polices than electrical power.

"We were going against an industry — and legislators — who don't want to spend money if they are not addressing a crisis," he said. "It's always hard to get elected officials to care about a crisis if it's not in a headline."

Miami Herald staff writer Douglas Hanks and Elizabeth Koh and Steve Bousquet of the Times/Herald Tallahassee Bureau contributed to this report.