November 18, 2018

November 16, 2018

Subscribe to Latest Legal News and Analysis

Compliance With Florida’s “Generator” Laws

Earlier this year, Florida Governor Rick Scott signed into law HB7099 and SPB7028 (collectively referred to as the “Bills”), ratifying emergency rules that require nursing homes and assisted living facilities to acquire alternative power sources- such as generators- and fuel in preparation of the upcoming hurricane season. See Rule 59A-4.1265 and Rule 58A-5.036. These rules were enacted after 14 residents died from heat-related illnesses and complications during Hurricane Irma last year when a Florida nursing home lost power to its air conditioning units for three days.

The Bills went into effect on March 28, 2018, and required qualifying facilities to come into compliance by June 1, 2018, unless granted an extension by the Governor whereby compliance is expected by January 2019. Facilities that can show delays caused by necessary construction, delivery of ordered equipment, zoning, or other regulatory approval processes are eligible for an extension if the facility can provide residents an area that meets the ambient temperature requirements for 96 hours. Extensions are granted on a case-by-case basis, although so far a majority of Florida facilities have been granted an extension. Indeed, it appears that over 77% of nursing homes received an extension in the first week of June. Additionally, facilities located in an evacuation zone pursuant to Chapter 252, F.S., must either evacuate its residents prior to the arrival of any emergency event, or have an alternative power source and no less than 96 hours of fuel stored onsite at least within 24 hours of the issuance of a state of emergency. Failure to comply with any provision may result in the revocation or suspension of a facility’s license and/or the imposition of administrative fines.

Nursing Homes and Assisted Living Facilities Must Develop Emergency Plans that Provide for Alternative Power Sources and Fuel Capable of Maintaining an Ambient Temperature of No Greater Than 81 Degrees Fahrenheit for At Least 96 Hours.

Nursing Homes and Assisted Living Facilities must prepare a detailed plan (“Plan”) that provides for the acquisition and maintenance of alternative power sources- such as generators- and fuel. The Plan will supplement a facility’s Comprehensive Emergency Management Plan and must be submitted to and approved by the requisite agency. While the Bills do not require facilities to maintain a specific type of power system or equipment; the alternative power sources utilized by a facility must be capable of maintaining an ambient temperature of no greater than 81 degrees Fahrenheit for at least 96 hours after the loss of primary electrical power. This temperature must be maintained in areas of sufficient size to shelter residents safely. Alternative power sources and fuel should be maintained in accordance with local zoning restrictions and the Florida Building Code.

Moreover, the Bills set forth additional requirements for nursing homes and assisted living facilities in evacuation zones, as well as for single campus and multistory facilities.

  • Facilities in Evacuation Zones – A facility in an evacuation zone pursuant to Chapter 252, F.S. must provide in their Plan for the maintenance of an alternative power source and fuel at all times when the facility is occupied but may utilize mobile generators to facilitate evacuation.

  • Single Campus – Single campus facilities under common ownership may share alternative power sources and fuel space if such resources are sufficient to maintain the ambient temperature required under the rules.

  •  Multistory Facilities – Multistory facilities, whose Comprehensive Emergency Management Plan comprises of moving residents to a higher floor during flood or surge events, must place their alternative power source and all additional equipment in a location protected from flooding or storm surge damage.

Fuel Storage Requirements Vary by Facility Size and Location.

The Bills require facilities to provide for storage of a certain amount of fuel based on their size and location. Assisted living facilities with 16 beds or less must store a minimum of 48 hours of fuel, while assisted living facilities with 17 beds or more a required to store a minimum of 72 hours of fuel. All nursing homes must store a minimum of 72 hours of fuel. Nursing homes and assisted living facilities located in a declared state of emergency area pursuant to Section 252.36, F.S., that may impact primary power delivery, must secure 96 hours of fuel; these facilities may utilize portable fuel storage containers for the remaining fuel necessary for 96 hours during the period of a declared state of emergency.

Emily Budicin, a 2018 Summer Associate in the firm’s Washington, DC office, contributed significantly to the preparation of this post.

©2018 Epstein Becker & Green, P.C. All rights reserved.

TRENDING LEGAL ANALYSIS


About this Author

Kathleen M. Premo, healthcare lawyer, Epstein Becker
Member of the Firm

KATHLEEN M. PREMO is a Member of the Firm in the Health Care and Life Sciences practice, in the St. Petersburg office of Epstein Becker Green. For more than 20 years, she has served as a legal and strategic advisor for a diverse range of health care and business clients, including Fortune 500 companies, hospital and health systems, Medicare Advantage provider groups, and entrepreneurial privately held companies.  Ms. Premo’s clients appreciate her sophisticated business acumen and insightful, real-world legal counseling, honed while serving as a legal advisor, strategist,...

727-362-6144
Olivia Seraphim, Epstein Becker Law Firm, Washington DC, Healthcare Attorney
Associate

OLIVIA SERAPHIM is an Associate in the Health Care and Life Sciences practice, in the Washington, DC, office of Epstein Becker Green.

Ms. Seraphim:

  • Provides assistance to health care companies and providers in federal False Claims Act and other litigation matters

  • Assists health care organizations with government investigations concerning alleged violations of federal and state health care fraud and abuse laws

  • Advises health care clients on the regulatory and transactional aspects of mergers and acquisitions, joint ventures, strategic affiliations, and other health care business arrangements, and conducts health regulatory due diligence in connection with such transactions

  • Assists in the representation of clients with FDA drug and medical device approval-, marketing-, and clearance-associated matters

In addition, Ms. Seraphim received her J.D. from The George Washington University Law School, where she served as an Editorial Staff Member of the American Intellectual Property Law Association Quarterly Journal.

While attending law school, Ms. Seraphim interned within the Health Care Division of the Federal Trade Commission (FTC), where she researched and wrote memoranda on issues of health care antitrust litigation—specifically, anticompetitive collaboration among health care providers and reverse payment settlements. Prior to that, she interned at the Plan Benefits Security Division of the U.S. Department of Labor's Office of the Solicitor.

202-861-1375