Florida Government and Politics Weekly Update

18 April 2011 Publication
Authors: Robert H. Hosay Thomas J. Maida

Public Policy News Alert

Budget

House and Senate leaders postpone budget conference. On Wednesday, Senate Appropriations Committee Chair J.D. Alexander announced that the chambers were not “quite where we want to be” in budget discussions. As a result, Sen. Alexander announced that the budget conference process will not begin until after next week. The Senate is not meeting on the floor or in committee this week in observance of the Passover and Easter holidays, while the House has scheduled two full days of committee meetings and floor time on Wednesday and Thursday.

Legislature

House and Senate pain clinic bills continue to evolve. On Tuesday morning, the House Appropriations Committee adopted a strike-all amendment that, once again, substantially revises the House position on addressing the fraudulent prescribing of controlled substances. As amended, H.B. 7095 by Rep. Rob Schenck contains a number of provisions:

  • Physicians, podiatrists, and dentists must register with their professional licensure board in order to prescribe controlled substances for pain management.
  • Registered practitioners must adhere to minimal standards of practice, which include evaluating the patient’s medical history, conducting a physical examination, developing an individualized treatment plan, and performing a periodic review of the patient’s treatment plan.
  • Registered practitioners also must maintain a log of all controlled substance prescriptions, which must be made available to law enforcement and to the Department of Health upon request.
  • Health care practitioners who have been found to over-prescribe or inappropriately prescribe controlled substances will have their licenses suspended for at least six months and pay a fine of at least $10,000 per incident.
  • The regulation of pain clinics is amended to expand the definition of such clinics, while an exception is created for clinics wholly owned and operated by board-certified anesthesiologists, physiatrists, neurologists, or other specialists who have completed a fellowship or are board certified in pain medicine. Pain clinics also must comply with various facility, infection control, health and safety, and quality assurance requirements. However, these regulations will have a short lifespan, in that the bill would repeal pain clinic regulations on January 1, 2016.

The House bill was reported favorably by a unanimous vote of the committee and will now be placed on the Second Reading Calendar and is available for consideration on the floor. Meanwhile, the Senate bill, S.B. 818 by Sen. Mike Fasano, was heard in its last committee of reference, Budget, on Thursday. The Senate bill differs substantially from the House bill — it would limit the advertising of the offering of controlled substances, tighten the regulations of pain clinics, and authorize the sharing of information in the controlled substance database with other states. The Senate bill was passed with little comment from committee members on a unanimous vote with support from, among other parties, the Florida Medical Association and the Florida Retail Federation. S.B. 818 will now be placed on the Second Reading Calendar.

Legislative committees consider constitutional amendments to address the “recapture rule” and lower the non-homestead assessment cap. On Tuesday, the Senate Judiciary Committee approved Senate Joint Resolution 658 by Sen. Mike Fasano. The resolution would amend the Florida Constitution to prohibit an increase in the assessed value of homesteaded property if the just value decreases (addressing the recapture rule that requires assessment increases even if just value decreases), and reduces the annual assessments for non-homesteaded property from 10 percent to five percent. The amendment also allows a new homeowner to choose between the existing “Save Our Homes” assessment cap and a new 50-percent homestead exemption, which exemption is phased out over five years. As amended, the Joint Resolution next goes to its last committee of reference, Budget. The companion in the House, House Joint Resolution 381 by Rep. Chris Dorworth, was voted out Friday morning in the Appropriations Committee, and now goes to its last committee of reference, Economic Affairs. The most substantial difference between the proposals is that the Senate imposes a five-percent cap on non-homestead properties, while the House imposes a three-percent cap. Opponents of the proposals alleged that the constitutional amendments will result in a tax increase in other areas of local government, arguing instead for what they consider to be a more equitable cap of seven percent, while proponents argued that the proposals will create certainty in the tax structure that will ultimately incentivize home sales.

Comprehensive medical malpractice reforms advance in House and Senate committees. Last week, several proposals providing additional medical malpractice protection for physicians, hospitals, and medical schools, as well as proposals requiring out-of-state physicians to obtain expert witness certificates in order to testify in medical malpractice actions, advanced in the House and Senate. S.B. 1676 by Sen. John Thrasher and H.B. 1393 by Rep. Frank Artiles extend sovereign immunity protection to Florida not-for-profit post-secondary institutions that operate an accredited medical school, as well as its employees or agents that have agreed in an affiliation agreement to provide patient services to a public teaching hospital. S.B. 1676 was passed out of the Senate Judiciary Committee on Tuesday, while H.B. 1393 was passed out of the Health and Human Services Committee on Wednesday. S.B. 1590 by Sen. Alan Hays and H.B. 479 by Rep. Mike Horner require out-of-state physicians to obtain an expert witness certificate in order to testify in a medical malpractice action. S.B. 1590 received a unanimous vote in the Banking and Insurance Committee on Tuesday, while H.B. 479 was reported out after a brief meeting of the House Health Care Appropriations Subcommittee on Monday. Proponents cited the high cost of medical malpractice insurance in Florida in support of the proposals, while opponents argued that peers of physicians alleged to have committed medical malpractice are often unwilling to testify, complicating the task of obtaining expert testimony regarding the prevailing standard of care. Opponents also highlighted the expansion of civil immunity to a hospital for the negligent acts of health care providers that have contracted with the hospital, while proponents countered that the hospital would still be liable for the activities within the boundaries of the hospital.

PIP reform bills finally clear first committees of reference in the Senate. On Tuesday, the Senate Banking and Insurance Committee passed out two proposals that attempt to reduce personal injury protection (PIP) auto insurance fraud. The first bill passed by the committee was S.B. 1930 by Sen. Ellyn Bogdanoff, which, among other provisions, expands the use of long-form crash reports for vehicle crashes, provides 90 days for insurers to investigate potentially fraudulent claims prior to payment, conditions a recovery of PIP benefits upon a physical or mental examination of the injured person, requires an assignee of PIP benefits to submit to an examination under oath, and authorizes the offering of a premium discount to a policyholder who selects a preferred provider network for PIP benefits. Opponents of the proposal focused their attention on the examination-under-oath provision, arguing that the provision will impair the delivery of health care by subjecting providers to hours of examinations by insurers. Other members commented that they were concerned that the proposal did not address insurers that habitually under-reimburse providers. Proponents argued that the proposal was necessary to address a significant increase of suspicious (or alleged staged accident) PIP claims throughout Florida. S.B. 1930 next goes to the Criminal Justice Committee. The second bill passed by the committee was S.B. 1694 by Sen. Garrett Richter, which, among other provisions, caps the amount of attorneys’ fees that may be recovered in an action to recover PIP benefits, requires examinations under oath as a condition precedent to a recovery of PIP benefits, and authorizes an auto insurer to require arbitration of PIP claims. An amendment supported by the bill sponsor was adopted that removed all of the provisions in the bill, except for the cap on attorneys’ fees. As amended, the bill caps attorneys’ fees based on the recovery amount, which cap ranges from three times the disputed amount to up to 15 times the disputed amount. Opponents criticized the amended bill, arguing that the caps were too low, while proponents argued that the very reason for the creation of the no-fault system was to prevent lawsuits. The bill next goes to the Judiciary Committee.

Senate Medicaid proposal passes out of its final committee. After adopting 23 amendments, the Senate Budget Committee approved S.B. 1972 by Sen. Joe Negron, which will enact a comprehensive reform of Florida’s Medicaid system. The amendments addressed a comprehensive number of policy areas in the bill, including intergovernmental transfers, electronic claims acceptance, and essential medical providers. Significant changes include a repeal of the “achieved savings rebate” in favor of a medical loss ratio that was contained in the previous version of the bill. Sen. Negron, one of the sponsors of the amendment, noted that there are a number of questions regarding the methodology of the achieved savings rebate and thus, for the time being, he wanted to revert to a medical loss ratio model. In addition, Sen. Don Gaetz and Sen. Eleanor Sobel sponsored an amendment that requires managed care plans to adhere to a variety of proscriptions regarding the availability of prescriptions drugs, including making at least two products available in each therapeutic class and making drugs available that are not on a plan’s preferred drug list when requested by the prescriber. The bill next goes to the Second Reading Calendar. Meanwhile, the House Medicaid reform bills, H.B. 7107 and H.B. 7109, remain in “Messages” in the Senate pending a compromise between the chambers on the proposals.


Public Policy News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and our colleagues. If you have any questions about this alert or would like to discuss these topics further, please contact your Foley attorney or any of the following individuals:

G. Donovan Brown
Tallahassee, Florida
850.513.3362
gbrown@foley.com

Marnie George
Tallahassee, Florida
850.513.3398
marnie@thegeorgegroup.com

Michael P. Harrell
Tallahassee, Florida
850.513.3373
mharrell@foley.com

Robert H. Hosay
Tallahassee, Florida
850.513.3382
rhosay@foley.com

Jonathan P. Kilman
Orlando, Florida
407.244.3256
jkilman@foley.com

Paul W. Lowell
Tallahassee, Florida
850.513.3380
plowell@foley.com

Thomas J. Maida
Tallahassee, Florida
850.513.3377
tmaida@foley.com

Marnie George of The George Group assists Foley on a variety of government and public policy matters as a consultant.

 

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