ORLANDO, Fla. – A little over a year ago, a new state law went into effect requiring nursing homes and assisted living centers to have emergency power plans, backup generators and enough fuel in place to run those generators for four days.
However, a News 6 investigation has uncovered modifications to the law that are allow facilities to keep smaller amounts of fuel onsite in case of an emergency.
According to Patrick Manderfield, a spokesperson for the Florida Agency for Health Care Administration, the rules state all facilities must have a plan to acquire a minimum of 96 hours of fuel in the event of an emergency situation, but they do not have to have that much on site.
The rules now state a nursing home must store a minimum of 72 hours of fuel onsite.
As for assisted living facilities, a facility with a licensed capacity of 16 beds or fewer must store 48 hours of fuel onsite whereas a facility with a licensed capacity of 17 or more beds must store 72 hours of fuel onsite.
So when did those rules change? Turns out in November 2017, ACHA and DOEA filed new proposed rules with the Department of State to create permanent nursing home and ALF rules. In December 2017, these rules were sent to the Legislature for ratification. Manderfield states the emergency rules were then extended/renewed while the two agencies awaited ratification by the Legislature, and both rules were ratified by the Legislature and approved by the governor on March 26, 2018 .
The new emergency power plan law went into effect after Hurricane Irma, when a dozen nursing home residents died in Hollywood Hills.
The nursing home they were staying in lost power for days following the September 2017 storm, creating sweltering and dangerous conditions inside the facility.
But despite the urgency presented by then-Gov. Rick Scott, who demanded the creation of safer conditions for the state's most vulnerable residents, News 6 has uncovered some Central Florida facilities still don't have backup generators or other crucial power equipment in place, despite having more than a year to do so.
News 6 visited three of the more than 3,000 assisted living facilities currently licensed in the state to see which ones had their emergency power plans and equipment in place. Only one of them did: Alabama Oaks of Winter Park.
"We have been approved as of March 11, and you will see that this plan is in compliance with Orange County emergency management," said Jennifer Brown, the administrator at Alabama Oaks.
[RELATED: Nursing homes, assisted living centers to follow new state regulations after Hurricane Irma | Florida suspends license of nursing home over Hurricane Irma deaths | Call for generators in Florida nursing homes after 11 nursing home deaths]
Brown said the facility had to get a brand-new generator and created a new emergency power plan to go with it.
"Ultimately, the safety of your residents is what's your priority," Brown said.
In April, News 6 went to Oasis National Assisted Living Facility in Apopka, and was shown the facility's written emergency power plan and new generator that was recently installed in the backyard. But the staff admitted they were still waiting for a transfer switch to go in. Recent calls to check if the transfer switch has been installed have gone unanswered.
That same month, News 6 also checked with the administrator at Excellence Senior Living in Orlando, who confirmed the 185-bed facility was still missing the permanent backup generator administrators had ordered, but has been approved for an extension. So that means even though the generator is not in place, the facility is not violating state law.
According to AHCA, 100% of the state's nursing homes and almost 98% of the state's assisted living facilities are in compliance with the new state law, but that just means they submitted an emergency power plan or extension, not that they have all the equipment in place. Some facilities have even received two or more extensions.
According to Florida law, there is no limit regarding variance requests or duration. The agency is evaluating extension requests on a case-by-case basis to ensure appropriate timelines for compliance and safety measures are in place.
Manderfield said there are currently 248 nursing homes and 2,328 assisted living facilities that have reported fully implemented generators.
He said plan implementation and verification at facilities is ongoing, with 284 surveyors making onsite visits and inspections across the state.
Manderfield said as facilities implement their power plan initiatives, their information can be found on FloridaHealthFinder.gov.
Emergency management consultant Bob Misko has helped hundreds of assisted living facilities write their emergency power plans.
He said smaller facilities are really hurting, trying to meet the new power plan guidelines, since both the cost of the equipment and installation can add up to tens of thousands of dollars.
"It's tough out here. It's tough," Misko said. "They're not making any money. They are living from paycheck to paycheck. When the state dropped this on them, it was catastrophic."
Misko said during some of his follow-up visits, he's discovered a few facilities taking matters into their own hands and potentially putting their residents at risk.
He showed News 6 one picture he submitted to the Orange County Fire Marshal's office in April, showing a gas generator placed too close to a facility, putting residents at risk of inhaling dangerous carbon monoxide fumes.
But that's not all he's seen.
"Some of these transfer switches that we've seen haven't been permitted," Misko said. "They are actually jerry-rigged, where you throw this switch here, and flip this one over to on, and then turn it off, and my concern is that somebody is going to miss a step. They're going to back-feed the panel and there's going to be a fire."
Brown said she's heard of several smaller assisted living facilities closing their doors because of the cost and backlog associated with these new power plan measures.
As for those facilities taking shortcuts? She says it is not worth it.
"They are going to find a lot of it is going to be rejected, and they're going to have to start the process over again," Brown said. "So I think doing it right the first time is the best way to go."
Brown said she has this advice for anyone who has a loved one in a Central Florida facility.
"They should be asking to see the equipment," Brown said. "And to know what the plan is and if the caregivers have been trained."
News 6 checked with Orange County's Office of Emergency Management and the agency confirms it has approved plans for 82 assisted living facilities in its jurisdiction, and requested 11 ALFs to resubmit their plans. A county spokesperson confirms six ALFs have not submitted plans and the agency has notified AHCA. Orange County Emergency Management personnel are required to approve the emergency power plans, but the submission of approval letter to AHCA is the responsibility of the provider.
"Specific to Orange County, the approval of a plan requires a validated letter from a Florida licensed electrician or Florida Registered electrical engineer that the alternate power equipment will handle all loads necessary or Florida licensed HVAC contractor/mechanical engineer that verifies the cooling systems will work as required by State Statute," said Carrie Proudfit, a spokesperson for Orange County Fire Rescue. "This is an additional requirement that was adopted by the county in 2018 as a means to better ensure the safety and wellbeing of some of our most vulnerable residents. Last June and July, Emergency Management actually hosted 12 workshops within Orange County to assist our ALF and Nursing Homes through the emergency power plan process (submission of) and remain available to ALF and NH providers in need of assistance."
But Proudfit said it is up to the state to confirm facilities are following their plan.
"While AHCA does oversee the emergency power plans in terms of compliance and implementation, but we too have an obligation to our citizens, especially those that we know are vulnerable," Proudfit said. "After the tragedy down south, there is certainly a heightened awareness in terms of the potential need for emergency services in situations where a provider is without power. OCFRD crews themselves have had to evacuate nursing facilities and assisted living homes during hurricanes (particularly Irma) and if needed are prepared to do again. We hope that this process better prepares our providers, so that an evacuation or other such emergency intervention can ultimately be prevented."
Alan Harris, Seminole County's Chief Administrator of Emergency Management, confirms AHCA is ultimately responsible for licensing the facilities.
"Emergency management has no jurisdiction or authority to require the facility to do anything. We can only require they have a plan and it meet the items inside of the Florida Statute," Harris said. "AHCA data will be slightly different than emergency management because they are looking at different things. The only place the data should be 100% consistent is if the facility has an approved emergency power plan. Other than that, emergency management doesn't track if they have implemented it because this is the responsibility of AHCA."
What can you do to make sure your loved one is safe and that their facility has a plan and equipment in place?
- Visit the facility in person unannounced.
- Ask to see the emergency power plan booklet; it should be in an easy-to-access location.
- Ask to see where the generator and fuel source are stored.
- Ask staff if they have been trained on the power plans and how to use the equipment.
- Check the AHCA website for a list of nursing homes in which facilities have been approved for an extension or multiple extensions.
News 6 talked to several nursing home and assisted living facility administrators who confirm any good facility will have no problem with a personal visit from a family member and have no problem showing you their plan and power plan safety measures. If they do, those administrators say that is a red flag.