AHCA Modifies Permanent Generator Rule

TO: FHCA Members
FROM: Emmett Reed, FHCA Executive Director
RE: AHCA Modifies Permanent Generator Rule
DATE: January 10, 2018

Today, the Agency for Health Care Administration (AHCA) released modifications to the proposed permanent generator rule for nursing homes. FHCA is pleased with the updated rule language, which includes several recommendations we offered to the administration and AHCA over these past weeks. FHCA appreciates the Governor and agency staff for listening to our concerns and developing a final rule that gives providers flexibility as they work to meet the goal to keep residents safe and cool during emergency events.

The updated rule, which can be found here, will be posted for 21 days. If there are no challenges to the rule, it will be promulgated and, upon ratification by the Legislature, will take effect. This means ratification must be done by March 7, the close of the 2018 legislative session.

The administration is also working on modifications to the assisted living facility proposed permanent rule. We will continue keeping members updated as more information becomes available.

Rules 59A-4.1265, Emergency Environmental Control for Nursing Homes, requires nursing homes to prepare a detailed plan addressing emergency power that will supplement its Comprehensive Emergency Management Plan (CEMP) and includes the following:

Alternate Power Sources

• Requires nursing homes to have an alternative power source, such as a generator, maintained* at the nursing home to protect residents’ health, welfare, safety and comfort for at least 96-hours following a power outage. *The alternate power source does not need to be installed and can be mobile; however, it must be maintained onsite at all times when the nursing home is occupied.
• Requires air temperatures in the nursing home to not exceed 81 degrees Fahrenheit.
• Required temperatures must be maintained in an area determined by the facility to be of sufficient size to maintain all residents safely and appropriately for the care and life safety needs. For planning purposes, no less than 30 square feet per resident must be provided. This may include areas that are less than the entire nursing home if the CEMP includes relocating residents to portions of the building where residents’ health and well-being will be maintained under the requirements of the rule.
• Allows for multi-story nursing homes to evacuate residents to a higher floor; however, the alternate power source and necessary equipment must be protected from flooding or storm surge damage.
• Clarifies that facilities located on a single campus that have common ownership may share fuel, alternative power resources and resident space as long as those resources are sufficient to maintain resident safety as required by the rule.

Fuel

• Requires nursing homes to store a minimum of 72-hours of fuel onsite.
• Requires that nursing homes located in a declared state of emergency area must secure 96 hours of fuel within 24 hours after the declaration is issued. The nursing home may use portable fuel storage containers for any additional fuel needed to meet the 96-hour supply requirement.
• Clarifies that piped natural gas is an allowable fuel source and meets the onsite fuel requirement.
• Requires that if local ordinances or other regulations limit the amount of onsite fuel storage, the facility must have a reliable method to obtain the maximum additional fuel at least 24 hours prior to depletion of onsite fuel.

Compliance

• Nursing homes must be in compliance no later than June 1, 2018.
• AHCA shall grant an extension up to January 1, 2019, to providers with delays caused by necessary construction, delivery of ordered equipment, zoning or other regulatory approval processes. After January 1, 2019, the agency will allow for a waiver and variance for any provide needing more time for the above-mentioned reasons.
• During the extension period, requires the nursing home to make arrangements during emergencies for residents to be housed in an area that meets the safe temperature requirements either through temporary generators and fuel delivery or through evacuation prior to the arrival of the event.
• AHCA may request cooperation from the State Fire Marshal to conduct inspections to ensure implementation of the plan in compliance with the rule.

Notification

• Within two business days of plan approval, the nursing home shall notify the AHCA in writing of proof of the approval.
• Nursing homes shall make its written policies and procedures readily available onsite for review by state surveyors and other authorities having jurisdiction. These policies and procedures must also be readily available for residents and their legal representative and all parties authorized in writing or by law.
• In addition, the nursing home shall submit to AHCA a consumer-friendly summary of the emergency power plan. AHCA shall post these summaries, as well as notice of plan approval and implementation, to its website.
• Nursing homes must notify, in writing or electronically (if permission for electronic communication has been granted), each resident and their legal representative upon plan submission and full implementation.