Michael Moline, Author at Florida Politics

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

Judge promises quick ruling in dispute over education amendment

A Leon County judge indicated Friday that he hopes to rule by Monday on whether to strip from the November ballot a proposed constitutional amendment that could deprive county school boards of oversight of charter schools.

“I hesitate to overpromise and under deliver, but my goal is to have this decided by Monday morning,” Circuit Judge John Cooper said following oral arguments in a challenge to the proposal.

Monday, at 5 p.m., also happens to be the deadline the Florida Supreme Court has given the state to respond to a separate lawsuit challenging six of the eight amendments proposed by the Constitution Revision Commission.

That challenge argues the commission improperly “bundled” more than a single proposal within each of the challenged amendments.

The Florida League of Women Voters filed the case argued Friday. Lawyers representing the league and the state spent nearly two hours arguing its merits and demerits before Cooper.

Veteran Tallahassee education policy litigator Ron Meyer argued for the league (backed by co-counsel from the Southern Poverty Law Center) that the ballot summary attempts to misrepresent what it would do, misleading voters. Blaine Winship, special counsel in the Office of the Attorney General, argued the state’s case.

The amendment contains three provisions: establishing term limits for school board members, requiring a “civics literacy” curriculum and the main bone of contention.

The contested ballot language reads:

“The amendment maintains a school board’s duties to public schools it establishes, but permits the state to operate, control, and supervise public schools not established by the school board.”

The packaging — combining potentially popular items with one that involving controversial charter schools — amounts to “putting sparkly things around a pile of mud,” Meyer said. “I submit to you that’s what this whole proposal does.”

Winship defended the language as clear enough. “There’s nothing misleading about it,” he said.

He argued the amendment would free the state to create “even other kinds of public schools in the future,” which it could operate directly or by delegating that authority.

“The classification of public schools should not be ossified,” he said. “In another five years, who knows what the nomenclature will be. We could have an entirely new idea — maybe a better, cleverer idea — about how to handle public education.”

Later, Winship discussed the case with reporters.

“This is simply giving the voters the opportunity to make this kind of decision,” he said.

“The question of who is establishing these schools, and therefore who has the right to control them, this would be something that presumably would be up to the legislation that’s turned out by our elected legislators, and subject to judicial decisions. In this state, almost everything in this area tends to get litigated, and that’s another safeguard.”

Florida’s courts have struggled for years to resolve tensions over whether local boards control schools, or the Legislature does. In 2008, the 1st District Court of Appeal in Tallahassee rejected a state law establishing a Florida Schools of Excellence Commission intended to oversee charter schools, on the grounds it trod on school board’s constitutional authority.

The amendment at issue now would settle the question, Winship said.

“This is something for the voters to sort out,” he said. “Depending on whether they give the state the kind of authorization that the CRC is looking to give the state, then the question would be how is the state going to exercise its authority. That’s really for them to decide.”

Meyer also spoke with reporters following the arguments.

“The reason charters aren’t mentioned (in the ballot language) is the CRC said they didn’t feel that would poll well — this would probably not pass if this was about further giveaways to charter schools,” he said. “It’s not surprising to me that they don’t mention charters in the ballot summary that the voters are going to see. But that’s what this is about.”

State law defines charter schools as public schools, but it’s not clear that’s widely understood. Even a judge like Cooper, who has spent years sorting out spats over education, can get confused.

“I’m going to make a confession to you,” he told the parties. “I didn’t know charter schools were public schools until this year.”

With the November election looming, the litigants and courts feel under the gun, Winship said.

“We’re all under enormous pressure — our judges, our justices of the Supreme Court,” he said. “Because we want to get this job done. We want to get it done right, so that the voters of this state, when they go to cast their ballots, will have the benefit of having these proposals before them.”

Calm waters ahead for revenues, state budget outlook

Florida’s revenues appear steady for the immediate future, state economists concluded on Thursday.

That means lawmakers can expect to have slightly more than $32 billion to spend when they write the state budget for the 2019-20 fiscal year.

“It’s going to be a very stable picture for the Legislature, with no big changes,” said Amy Baker, coordinator for the Office of Economic and Demographic Research.

“No surprises, up or down,” she added. “We made a lot of changes, but the cumulative effect of them keeps them (legislators) right on the same forecast path they were on.”

That extends to the ‘out-years’ for the budget forecast.

“We have a couple of years at 3.6 percent growth, and then taper down a little bit as you go further out,” Baker said.

Forecasters with Baker’s office, the Governor’s Office, and the House and Senate make up the conference, which was closing out more than a month spent recalculating the state’s economic and budgetary situation.

Thursday, they plowed through the particulars of the state sales, documentary stamp, beverage, pari-mutuel, insurance premium, severance, and corporate income taxes, among other contributors to the state’s General Revenue Fund.

Sales tax receipts had declined following last year’s encounter with Hurricane Irma, but rebounded somewhat as rebuilding began, Baker said.

“We also look at how much the state had to spend on ‘matches’ — providing assistance to local governments — and things that aren’t covered by the federal government at all, and what investments the Legislature made during Session,” she said.

Historically, “usually the state is the loser on that going forward.”

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Ed. Note: Baker’s staff plans to post final numbers here. Check back later.

Economists find good news for schools, bad news for Medicaid

State economists on Monday found millions of extra dollars for the state’s public schools, but also a $29 million shortfall in takings from tobacco taxes and a landmark legal settlement with the tobacco companies.

The Revenue Estimating Conference projected that $128.4 million would remain unspent at the end of this fiscal year within the Educational Enhancement Trust Fund and the State School Trust Fund, financed primarily through Florida Lottery proceeds, slot machine taxes in South Florida, and proceeds from the sale of unclaimed property.

That means the Legislature will start out in the black when setting school spending priorities for the 2019-2020 fiscal year, said Amy Baker, coordinator for the Florida Office of Economic and Demographic Research.

“It’s nonrecurring, but it’s a boost for schools,” Baker said. “It’s more than they expected, right from the get-go.”

On the other hand, the outlook for Medicaid — the primary recipient of the tobacco money — “is not good news,” she added. “It’s showing that they actually have a projected hard deficit.”

Medicaid is the joint state-federal health care program for the poor. “So, good news for education, not good news for Medicaid,” Baker said.

The economists warned of the problem last week, blaming it on a decline in tobacco use and a shift to vaping products that remain untaxed in Florida.

Moreover, R.J. Reynolds is in court contesting its obligation to continue payments under a 1998 legal settlement in light of its sale of cigarette brands to Imperial Tobacco Group.

The group has spent most of August reviewing its revenue forecasts, and planned to huddle again on Thursday to sign off on a projection for the General Revenue Fund, the main source of money to build a state budget besides trust funds.

Judicial candidate filed campaign paperwork too late, appeals court says

A state appeals court has blocked Clay County judicial candidate Lucy Ann Hoover from appearing on the ballot because she filed her paperwork too late.

“We recognize that the public policy of Florida generally favors letting the people decide the ultimate qualifications of candidates,” the 1st District Court of Appeal concluded Wednesday, in an opinion by Judge T. Kent Wetherell II. Judges Ross L. Bilbrey and M. Kemmerly Thomas concurred.

“However, absent special circumstances, public policy considerations cannot override the clear and unambiguous statutory requirement that all of the candidate’s qualifying paperwork must be received by the filing officer by the end of the qualifying period.”

The court upheld a trial judge in the 7th Judicial Circuit, who heard the case because it originated with a motion filed by incumbent Clay County Judge Kristina Mobley. Gov. Rick Scott placed her on the bench in 2015.

Record show Hoover arrived at the county supervisor of elections office at 11:55 a.m. on May 4, just shy of the noon deadline. She filed her qualifying check at 11:57, but her candidate oath came in at 12:01 and her financial disclosure form at 12:12.

The office accepted the late documents, and certified Hoover as a candidate, under a policy of requiring only that prospective candidates be physically present and filling out their paperwork before the deadline falls.

Mobley then went to court to have Hoover’s name stripped from the ballot.

Hoover, a visiting professor of criminology and criminal justice at the University of North Florida, cited a 1st DCA precedent allowing a legislative candidate to appear on the ballot under a similar policy maintained by Florida’s secretary of state.

But that was because an aide to the candidate was misdirected inside a crowded and confused elections office, Wetherell wrote, and had the paperwork completed and ready to file. By contrast, Hoover was the only candidate inside the local supervisor’s office.

“Here, there were no special circumstances that would excuse Hoover’s failure to meet the qualifying deadline, but rather … this is simply a case of a prospective candidate missing the qualifying deadline because she waited until too late to complete the necessary paperwork,” the opinion says.

Crystal river Duke

Duke Energy’s plan to pay off nuke upgrade costs OK’d

The Public Service Commission signed off Tuesday on Duke Energy Florida’s plan to collect the last $43 million it needs from ratepayers to recoup upgrade costs for its now-closed Crystal River 3 nuclear power plant.

The commission voted 3-2 to attach to the plan a copy of a settlement agreement between Duke and the Office of Public Counsel.

Duke will still have to participate in “true-up” proceedings, meaning the company must account for the way it spends the money and return any unspent funds to ratepayers.

PSC staff members argued that attaching the agreement might lend it the commission’s imprimatur, staff members said. It includes a run-down of the decommissioning process for the plant, which some commissioners felt was outside the scope of a proceeding involving the upgrade money.

Chairman Art Graham and Commissioner Donald Polman sided with the staff. Commissioner Julie I. Brown, Gary Clark, and Andrew Fay sided with the public counsel’s office, which represents ratepayers.

The attachment provides a clear statement of Duke’s costs, Public Counsel J.R. Kelly said following the hearing.

“All the parties, including Duke Energy, thought it would be prudent to have a final accounting so that we would be very transparent to the public as to the amounts recovered,” Kelly said.

The proceedings involve the Nuclear Cost Recovery Clause, approved by the Legislature in 2006 in hopes of reducing the state’s dependence on overseas energy resources.

The measure allowed utilities to charge ratepayers to develop nuke plants, even before they began producing energy. But most of the eventual $6 billion invested has come to naught.

Duke was to spend more than $49 million during 2018. The $43 million represents Duke’s costs during 2019.

The money will come out of ratepayer’s pockets. But “after Dec. 31, 2019, the customers of Duke Energy will no longer see any nuclear cost recovery surcharge as part of the rates they pay,” Kelly said.

Additionally, Duke has floated $1.8 billion in bonds to cover separate decommissioning costs, and customers will pay surcharges to retire that debt through 2036 at the latest.

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Editor’s note: An earlier version of this article conflated the decommissioning process for the nuclear power plant at issue and the Nuclear Cost Recovery Clause process.

Medicaid managed care costs running well behind projections

Florida’s Medicare managed care program will cost $732 million less that the Legislature provided during this fiscal year, a panel of state economists concluded Monday.

But the rate of savings in that program will slack off as the program matures, said Amy Baker, coordinator for the state Office of Economic and Demographic Research. She chaired Monday’s meeting of the Social Services Estimating Conference.

“People are more used to it — they know what they’re dealing with,” she said. “The state knows what they’re getting from all the providers.

“Going forward, you would expect it to move over time back to medical trends.”

Florida’s social services caseload has been declining. The same panel last week forecast a 160,000-person reduction, on top of a 500,000-person reduction during the last fiscal year.

“I think everybody’s kind of befuddled about that,” Baker said. Part of it is that people are earning too much to qualify because of the improving economy. “But that’s not all of it. It’s pervasive.”

Meanwhile, enrollment in Florida KidCare, Florida’s version of the federal program providing health care to children, has been growing faster than expected. It grew by 10 percent during the fiscal year just concluded — well ahead of the Legislature’s predicted 5.3 percent.

“The conversion to managed care is done, but there are tweeks and adjustments being made,” Baker said. For example, “dental used to be inside the rate, but they’re splitting out into a separate … rate.”

New lawsuit highlights legislative logjam over PIP reform

Florida’s no-fault insurance system continues to generate fraud, judging by allegations in a lawsuit that insurer State Farm filed in federal court.

The suit, filed in the Southern District of Florida on Aug. 1, alleges three clinics cheated it out of $4.7 million.

Will suits like these help break the policy logjam that has prevented the Legislature from responding to problems with the state law requiring motorists to carry personal-injury protection (PIP) policies?

Not necessarily, according to Sen. Tom Lee. The Thonotosassa Republican’s PIP repeal bill died in committee last Session. That was amid wrangling with the House over whether to mandate that drivers carry at least $5,000 in medical coverage.

“The problem has to become more painful than the solution for consensus to develop in the Legislature,” Lee said in a telephone interview. “It was clear last year that we just weren’t there yet.”

Like Lee, Rep. Erin Grall, the Vero Beach Republican who carried the House PIP bill, declined to comment on the merits of the case.

“Having worked on legislation that would have repealed the PIP statute, I heard many stories about fraud and abuse,” she said in a statement to Florida Politics. “Whether the allegations in the State Farm complaint amount to fraud is a matter for the courts … (and) a jury of Floridians that have given the facts careful consideration.

“While I believe moving to a fault-based system of auto insurance will naturally eliminate or thoroughly reduce fraud, the overwhelming majority of health care providers in this state operate with professionalism and integrity and this suit shouldn’t be a standalone indicator of all providers’ treatment of the system,” she said.

The complaint alleges that three clinics — Health & Wellness Services Inc., Medical Wellness Services Inc., and the Pain Relief Clinic of Homestead, controlled principally by Beatriz Muse and her brother, Lazaro Muse, both of Miami — “orchestrated a scheme to defraud” State Farm. Beatriz Muse’s husband, Noel Santos, also is named.

The 59-page complaint alleges fraud, deceptive and unfair trade practices, and unjust enrichment. The clinics submitted “false, materially misleading, and/or fraudulent bills and supporting records to plaintiffs for services which were not medically necessary, and in some instances were never actually rendered,” State Farm says.

According to the complaint, the clinics administered a “predetermined treatment plan” regardless of the patients’ injuries. They failed to adequately examine patients to learn the true nature and extent of their injuries; diagnosed nearly every one with “non-specific pain/sprain/strains of the cervical, thoracic, and lumbar regions of the spine regardless of their true condition;” and treated nearly every one with “excessive therapy modalities regardless of the unique circumstances and needs of each patient.”

Nearly every patient got an X-ray scan, but the results weren’t used in the treatment plan. Patients were re-evaluated “to further the predetermined treatment plan rather than as part of individualized care.” Finally, the clinics submitted documents to State Farm falsely representing that these treatments were medically necessary.

“As a result of the predetermined treatment plan at the Muse clinics, insureds were not properly examined, diagnosed, or treated for conditions which they might have had; insureds were subject to medically unnecessary and sometimes excessive medical treatments; and insureds’ limited no-fault benefits were substantially depleted or exhausted, and therefore not available for appropriate treatment what the insureds may have needed.”

The complaint also alleges irregularities involving five doctors listed as the clinics’ medical directors and failure to ensure that clinic staff were properly licensed, and that the defendants appointed third-parties as clinic owners on paper to disguise their control of the businesses.

The scheme, the complaint alleges, extended back as far as 2007. A complaint in a lawsuit tells one side of a story; the defendants have not yet filed an answer, dockets show. Moreover, U.S. District Judge Robert N. Scola Jr. last week questioned whether the federal courts have jurisdiction, requiring an amended complaint from State Farm by Friday.

Meanwhile, in the Legislature, PIP repeal is likely to come up again, as are efforts to address assignment of benefits abuse and the workers’ compensation system. The Legislature has struggled for years to agree on approaches to those issues.

Lee

Here’s Lee’s diagnosis: “It all got caught up in the same dynamic of special interest groups battling it out over just what constitutes real reform. It all just went down in flames.”

He blames the insurance lobby for trying to “inject” language making it harder for policyholders to sue carriers for bad-faith in denying or delaying their claims. Plaintiffs who establish bad faith can recover far in excess of the amounts provided in their policies, as an incentive to good behavior by carriers.

“There’s probably some room for bad-faith reform, but often what is presented by the insurance companies amounts to bad-faith immunity, not reform,” Lee said.

“Without entirely rewriting insurance policies to alleviate the insurance companies of the traditional duty that they have to defend the insured, and to stand in and provide their expertise in helping the insured manage through a liability, you can’t pass the kind of bad-faith reform the insurance industry has been proffering,” he said.

“These are really complex issues. I’ve been working on them since the conference committee on the medical malpractice bills during those special sessions that took place in 2003. Bad-faith was a major issue. It’s just difficult to write statutes that don’t give one side or the other a tremendous amount of leverage to force a settlement.”

Toward the end of the session, Lee suggested to House Speaker Richard Corcoran settling for a hybrid bill.

“If you like your PIP, you can keep your PIP,” he said. “But everybody who’s willing to move to a mandatory bodily injury (BI) policy can drop their PIP. That would have been a substantial savings for a lot of people.” Around 10 percent of the driving population carry PIP only, Lee said.

Tom Lee says he’s looking forward to leadership change in Senate

Tom Lee is psyching himself up for another term in the Florida Senate.

“I was pretty much resolved to step away for a little while, and get on with some business and try to help my son get through high school,” the Thonotosassa Republican (and Senate President in 2004-06) said last week.

After considering runs for Chief Financial Officer and for Congress, and even leaving politics altogether, he decided last month to seek re-election.

He faces John Manners Houman in this month’s Senate District 20 primary. Joy Gibson and Kathy Lewis are vying to be the Democratic nominee.

Lee, who has served a combined 16 years in the chamber, clashed regularly with leadership under President Joe Negron of Stuart, but expects better days when Bradenton Republican Bill Galvano wields the gavel, as expected next year.

“My sense is there are going to be a lot of changes in the Senate, and it’s going to be a more rewarding place in which to serve in the coming years,” Lee said.

Then there’s the good of the party to think about.

“It’s much easier to recruit for the other party if you’re not running against an incumbent — depending on the incumbent, I guess,” he said.

“In this case, I think it would have been much easier for the Democrats to recruit candidates. And there’s no question about it — there would have been a Republican primary, and that would have cost a substantial amount of resources.

“Resources are finite. If those resources could be saved and utilized in other races where we have thin margins for error, it can help people sleep a little better at night.”

Ethics Commission finds evidence lobbyists filed inaccurate disclosure reports

The Florida Commission on Ethics has found probable cause that five lobbying firms filed inaccurate financial disclosure reports for 2016. The evidence turned up in random audits of executive branch lobbying firms, the commission said Thursday.

The panel cited evidence that Andrew J. Liles filed an inaccurate compensation report during all four quarters of 2016. State records list his existing clients as the Florida Wildlife Federation and the Seaside Institute.

Lester Abberger, listed as lobbying under his own name and for Florida Lobby Associates Inc., reported compensation from two clients for which his firm was not registered during all four quarters of 2016, the commission found. Additionally, the commission found evidence of incorrect compensation reports from two principals during that year’s first quarter.

Abberger said he had neglected to delist two former clients and reported zero dollars in compensation from them for the year. “I complied completely with the spirit and intent of the requirement, but didn’t realize that I had to take those clients off my list,” he  said.

Pruitt & Associates was cited for what the commission called inaccurate compensation reports for all four quarters of 2016. Registration records for that year listed Kimberli Anne Pruitt of Lady Lake as a lobbyist for A Child is Missing. She is not listed in current lobbyist records.

Pruitt confirmed she had been registered to lobby but had no further comment. Her husband, Will Pruitt, a former lobbyist, said the client was the small nonprofit behind the Amber Alert system. It paid his wife’s fees two years late, he said, and she was unsure how to report that on the disclosure form. “I think it was a couple of hundred bucks,” he said.

Also cited was Wilson & Associates LLC, accused of properly identifying its principal during each quarter of 2016 and overstating and understating compensation. The firm’s website lists Rob Wilson as president.

Finally, the commission found probable cause that TC Wolfe filed inaccurate financial reports during three quarters of 2016. State records show that Terrence Wolfe is no longer registered to lobby in Tallahassee. A website for New Century Government Affairs indicates he is affiliated with that firm, which maintains offices in Miami and Washington, D.C.

None of the others listed have responded thus far to requests for comment.

Florida ranks high in workers’ comp legislation, survey shows

A new law extending mental health treatment to firefighters, police officers, and other first responders with PTSD ranked Florida among the bellwether states in a survey of trends published by a national workers’ compensation ratings agency.

The Regulatory and Legislative Trends Report, compiled by the National Council on Compensation Insurance, or NCCI, cites SB 376, signed into law in March by Gov. Rick Scott.

The legislation, initially opposed by the Florida League of Cities, cleared both legislative chambers unanimously.

The only other state to pass such a law was Washington. New Hampshire established a commission to study the topic. Arizona, Kentucky, Minnesota, Missouri, Ohio, South Carolina, and West Virginia debated but did not approve similar measures.

The Florida bill was a priority for Chief Financial Officer Jimmy Patronis, who also serves as state fire marshal.

“PTSD is a hidden killer among our first responders,” he said at the time. “It’s critical that we do everything possible to ensure first responders are not alone as they cope with the horrific images they see daily. Today was not only a day to honor those we have lost, but to celebrate the lives we could save.”

The bill takes effect Oct. 1. Under existing law, first responders must suffer a physical injury to qualify for PTSD care.

Also featuring in the survey is HB 7087, tax legislation passed within 45 minutes of adjournment, which includes language establishing that “marketplace contractors” are not eligible for workers’ compensation coverage.

The term encompasses drivers, household workers, and others who connect with customers via apps like Uber, Lyft, or Handy.

Indiana, Iowa, Kentucky, and Tennessee passed similar laws; Alabama, California, Colorado, and Georgia debated but did not approve them.

NCCI has also been monitoring legislation controlling use of prescription drugs for workers’ compensation claimants; single-payer health care (legislation passed the California Senate and is awaiting action in the Assembly, but has languished in Florida); and marijuana legalization (nine states and the District of Columbia have legalized recreational use; only Idaho, Kansas, and Nebraska have not legalized marijuana in some form).

In other findings, Kentucky was the only Southeastern state to enact “significant” workers’ compensation reforms this year. Florida has debated legislation intended to make it harder to challenge workers’ compensation awards in trial courts and boosting oversight of contractors for two years but the House and Senate have been unable to agree.

NCCI is an information clearinghouse for workers’ compensation insurers and proposes premium levels in many states, including Florida.

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