As industry attorneys wage a legal battle over new rules requiring nursing homes and assisted living facilities to have generators that can power air-conditioning systems, providers are asking for variances from the rule carrying a Nov. 15 deadline.

Thirty-three providers requested variances in two days last week, a review of state documents shows.

And that's just beginning, said Florida Health Care Association spokeswoman Kristen Knapp. She predicted “you are going to see a lot more” this week from members of the association representing hundreds of nursing homes.

Gov. Rick Scott's administration last month issued the emergency generator rule after eight residents of a sweltering Broward County nursing home died following Hurricane Irma. Six more residents died later after being evacuated.

Hurricane Irma knocked out the air conditioning at the two-story nursing home, The Rehabilitation Center at Hollywood Hills, which did not have a backup generator for cooling.

But nursing homes and assisted living facilities have objected to the emergency rule because they were only given 60 days to comply.

Florida law states the “strict application of uniformly applicable rule requirements can lead to unreasonable, unfair, and unintended results” and agencies are authorized to grant variances and waivers to rules that cause a substantial hardship.

To clarify the existing variance process, the Scott administration  issued another emergency rule Thursday that in part laid out information the Agency for Health Care Administration wants providers to include in the requests for variances.

The changes, however, do not mean the governor is backing off his power policy, the administration says.

“It has no effect on the emergency generator rule and its enforcement. AHCA has made it clear that they will enforce this rule aggressively, and they will continue to do just that.” Scott spokesman McKinley Lewis said.

Long-term care facilities are seeking the variances because the Nov. 15 compliance deadline is nearing, and facilities that aren't in compliance face steep penalties, including possible license revocation.

“They are working to comply,” Knapp said. “There's just a lot of issues involved in installing generators.”

Industry groups LeadingAge Florida, the Florida Assisted Living Association and Florida Argentum also filed legal challenges to the validity of the emergency rules.

Attorneys spent a second day Friday in a hearing before Administrative Law Judge Garnett Chisenhall. The emergency rules require nursing homes and assisted living facilities to have enough power to keep ambient temperatures at a maximum of 80 degrees for 96 hours.

Chisenhall has two weeks to issue an order.

Though the state Agency for Health Care Administration has regulatory oversight of assisted living facilities, the state Department of Elder Affairs is required to work with AHCA in drafting rules.

Catherine Ann Avery, bureau chief of elder rights for the Department of Elder Affairs, testified  she worked with the department's general counsel on the emergency regulations.

But during cross-examination, Baker Donelson of counsel Amy W. Schrader in Tallahassee, who represents Florida Argentum, referenced an email between AHCA and the department and noted the majority of the rule language was proposed by the agency.

Christine Sexton reports for the New Service of Florida.