Florida’s health care industry has pushed back against the suggestion that a failure of nursing homes to fully comply with a backup generator law could sideline the facilities’ request for legal immunity during the COVID-19 crisis.
Rep. Wilton Simpson (R-Trilby), a member of Gov. Ron DeSantis’ Re-Open Florida Task Force, was quoted by the News Service of Florida as saying that nursing homes’ failure to comply with the 2018 law could affect the industry’s request for legal protections for facilities and health care workers.
The Florida Health Care Association last month wrote a letter to the governor requesting immunity from any legal liability, either civil or criminal, resulting from an act or omission that occurred during the COVID-19 emergency rule, provided they were made in good faith. The immunity would not apply if damages resulted from willful criminal misconduct, gross negligence or reckless misconduct, according to the association’s letter.
“We understand the governor is looking at the constitutionality of the request, and as of yet we have not heard back from his office,” Kristen Knapp, spokeswoman for the association, told the Florida Record in an email. “What I can tell you, however, is that the COVID-19 crisis has us in an extraordinary time in which providers must go beyond normal requirements to meet resident care needs.”
Nearly 70 percent of nursing homes have implemented their emergency power plans under the 2018 law, based on information on the Florida Agency for Health Care Administration (AHCA) website, Knapp said. And 28 percent of the facilities have variances, she said, adding that the AHCA mandates that the nursing homes have an onsite generator to meet cooling needs while they wait for the final approval of their plans.
A key problem with moving forward with generator projects is that the facilities have restricted nonessential visitors from the buildings to protect residents from the coronavirus, according to Knapp.
“This makes achieving final approval challenging when contractors, engineers, utility companies and others involved in the process cannot enter the building,” she said. “... Nobody could have anticipated just how many variables have gone into causing delays due to adding pandemic procedures put in place to keep residents safe.”
Meanwhile, conflicting guidance to nursing homes from the federal, state and local governments continues to raise the specter of future lawsuits, according to Knapp. Broward County’s health department mandates that nursing homes keep residents in their rooms with the doors closed, which would be a violation of standards under normal circumstances, she said.
Another conflict involves standards for protective masks. The surgeon general has said cloth masks are acceptable, while the Centers for Disease Control and Protection contends cloth masks do not provide acceptable protection, according to Knapp.
“In the midst of this unprecedented crisis, long-term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” she said.