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Senior Living Providers: Are You Ready for Beryl, Chris, and Debby?

Steven D. Brownlee, J.D., M.B.A., M.D.

New rules aim to prevent the catastrophe of the 2017 Hurricane Season.

Beryl, Chris, and Debby are the names of the next three tropical storms this season. The first named tropical storm, Alberto, recently moved through Florida causing heavy rainfall, but largely spared buildings and human lives. The National Oceanic and Atmospheric Administration (NOAA) forecasts an active hurricane season with up to 16 named storms, of which up to nine could become hurricanes, including up to four major hurricanes.

Florida’s Agency for Health Care Administration (AHCA) implemented two new rules intended to avoid situations like that of Hurricane Irma, which led to the heat-related death of 14 residents at a Florida nursing home. The focus of the new rules, which apply to AHCA-licensed nursing homes and assisted living facilities, is to ensure that facilities have adequate cooling and other services in place to ensure the health and safety of the residents.

The deadline of June 1 for facilities to implement the new rules has already passed. If your facility has not yet complied with the new rules, you should submit a variance request to AHCA, which will grant an extension up to January 1, 2019, if certain conditions are met.

New this year, facilities must prepare and submit to AHCA a detailed plan to address emergency power arrangements in the event of the loss of electrical power in the facility. Failure to follow the new rules can lead to license revocation, license suspension, and administrative fines.

The rules require the acquisition of a sufficient alternate power source to ensure a minimum of 96 hours of safe indoor air temperatures. The rules do not specify the method of cooling required and allow for flexibility for each provider to determine the most appropriate equipment to meet their facilityneeds (e.g. generators can run HVAC systems, or other systems  like portable chillers or spot coolers may be used).

The new rules allow for a “single campus” exception to the alternate power source requirement. For instance, if a nursing home without a generator is on a campus (i.e. adjacent or connected) with an assisted living facility (under common ownership) with a generator, residents may be moved from the nursing home to the assisted living facility provided that the combined residents have no less than 30 net square feet per resident.

The rules do not specify a fuel storage method and allow flexibility for providers to determine the best method for their location and facility. For example, a facility could add an additional above ground tank or an expanded inground system. Further, the 96- hour fuel does not need to be on hand at all times. Rather, it must be available once a state of emergency is declared and the facility’s primary power delivery may be impacted.

Dr. Steven D. Brownlee is a health law attorney with Williams Parker. He focuses on assisting healthcare and senior living providers with their operational and regulatory matters, including professional licensing, compliance planning, Medicare/Medicaid issues and appeals, DEA issues, and provider contracting. Prior to practicing law, Steven practiced medicine and medical management consulting, providing him a deep understanding of the industry. He can be reached at sbrownlee@williamsparker.com or (941) 552-2567.

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