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News Service Of Florida

The News Service of Florida provides journalists, lobbyists, government officials and other civic leaders with comprehensive, objective information about the activities of state government year-round.

Children’s health program funding in jeopardy

With money for Florida’s subsidized children’s health-insurance program due to run out in a matter of weeks, the state has not warned the parents of roughly 200,000 children that they could soon lose coverage.

Florida’s decision contrasts with other states that have decided that they can no longer wait to see if Congress restores money for the 20-year-old Children’s Health Insurance Program, according to Joan Alker, executive director of the Georgetown University Center for Children and Families.

Federal funding for the so-called CHIP program ran out in September, and while there have been promises to restore it, a final deal has not emerged from Congress. Alker’s center on Wednesday released an analysis that shows which states are projected to soon have shortfalls.

State officials have verified that funding for Florida’s program — which is operated primarily through the Florida Healthy Kids Corp. — would run out at the end of January. Twenty-four other states are also projected to run out of money at the same time.

The funding shortfall does not impact the roughly 2 million children who are in Florida’s Medicaid program — but instead affects those children whose families are just above the poverty line.

Mallory McManus, a spokeswoman for the Florida Agency for Health Care Administration, said the state was “closely monitoring” to see if Congress will restore the money.

“We are hopeful that Congress will bring this issue to a resolution very soon,” McManus said in an email.

But McManus acknowledged that if that does not happen, “it our goal to provide the families with as much as notice as possible.” She added that at a minimum, families would get a “30 day notice,” which means the state would be required to send out notices by the end of December.

Alker said there is no federal requirement to send out notices, but she said states are going to also have to cut off new enrollment at some point. She said her organization has been “unable” to get answers from Florida about its plans, but she said the blame still belongs on Congress for failing to act.

“Congress has left states in an extremely difficult situation,” Alker said.

Neighboring Alabama is freezing enrollment on Jan. 1 and then will begin to disenroll families currently in the program at the start of February. Virginia has also put parents on notice that coverage could end soon.

The administration of Gov. Rick Scott has remained somewhat quiet as the deadline looms.

Scott’s press office has said the Republican governor is in favor of extending the popular children’s health insurance program, but Scott has not come out strongly to call on Congress to act.

On Wednesday, Scott asked Congress to pass a hurricane relief package that Florida and Texas officials are seeking.

New trial ordered in Lee County cop shooting

An appeals court Wednesday ordered a new trial for a man sentenced to life in prison for the 2011 shooting of a Cape Coral police officer during a traffic stop.

A three-judge panel of the 2nd District Court of Appeal overturned the conviction of Yousel L. Rivera, now 26, because a circuit judge failed to give a jury instruction about whether Rivera knew the victim was a police officer.

Rivera was convicted of attempted first-degree murder of a law-enforcement officer with a firearm, a crime that carries a mandatory life sentence.

Rivera shot Officer David Wagoner during an April 2011 traffic stop in which Rivera was a front-seat passenger of a car, according to a Cape Coral police news release at the time. As Wagoner approached the passenger window to get Rivera’s identification information, he was shot three times in the torso.

Wednesday’s appeals-court opinion said the defense contended that Rivera lacked the intent to shoot the officer and was suffering from a seizure condition at the time. In overturning the conviction, the appeals court cited precedent from a Florida Supreme Court ruling in March in an Orange County case involving the attempted murder of a police officer.

“Here, Rivera requested a jury instruction on the essential element of knowledge,” said Wednesday’s ruling, written by Judge Morris Silberman and joined by judges Stevan Northcutt and Robert Morris. “In addition, whether Rivera had knowledge that the victim was a law enforcement officer at the time of the shooting was a disputed issue based on the defense that Rivera was suffering from a complex partial seizure and that the shooting was an automatism, an automatic but not conscious behavior. Thus, because the essential element of knowledge was in dispute, the failure to properly instruct the jury on the element of knowledge amounts to fundamental error.”

Disaster relief package would help citrus industry

Florida’s storm-battered citrus growers are closer to landing federal relief sought since Hurricane Irma devastated large parts of the state’s agriculture industry in September.

The U.S. House on Wednesday will consider providing $2.6 billion for lost farm crops as part of an $81 billion disaster-relief package, which has been attached to the latest short-term “continuing resolution” needed to keep the federal government open.

The overall relief package, nearly double the amount requested in November by the White House to aid communities recently damaged by hurricanes and wildfires, comes after Florida Agriculture Commissioner Adam Putnam said last week there was no “plan B” for the state’s citrus industry without federal assistance.

“Today’s announcement of proposed emergency funding for Florida agriculture is the first bit of good news we’ve heard in months,” Putnam said in a prepared statement Tuesday.

If the package passes the U.S. House on Wednesday, it then would go to the Senate for consideration.

Putnam and Gov. Rick Scott have pushed Florida’s congressional delegation to attach assistance for the citrus industry to post-storm relief packages.

“I am glad to say we finally cleared the first major hurdle by securing this funding in the latest disaster supplemental bill,” U.S. Rep. Tom Rooney, a Republican who is the only Floridian on the House Appropriations Subcommittee on Agriculture, announced late Monday.

The Florida agriculture industry, which Putnam’s department estimated took a $2.5 billion hit from Hurricane Irma, was left out of two earlier disaster-relief packages approved by Congress.

Florida is expected to get a large part of the money for farmers, with crop losses covered for citrus growers.

The biggest parts of the relief package are $27.6 billion that would go to replenish the Federal Emergency Management Agency’s disaster-relief account and $27.8 billion for community development block grants that could be used toward flood prevention and infrastructure repairs.

Another $12.11 billion would go to the U.S. Army Corps of Engineers to repair damage from the natural disasters and to bulk up facilities from future risk, including $537 million for flood control and coastal repairs.

Another $3.99 billion would help public and private schools handling displaced students.

Florida citrus growers, including many in the southwestern part of the state who were hit hard, incurred an estimated $761 million in damage from Irma. However, that estimate from early October is expected to top $1 billion as flood damage to trees continues and as harvest numbers drop.

U.S. Rep. Dennis Ross, a Lakeland Republican, said the funding will help the industry, which before Irma had been fighting citrus greening disease and is now on pace for its lowest harvest since the 1944-1945 growing season.

“We finally reached a deal that will help Florida farmers recover from the storm with $2.6 billion and prevent these jobs from going overseas,” Ross said in a prepared statement. “While we still have a long road ahead, I’m glad that Florida citrus will have a fighting chance.”

Also Wednesday, the Florida Citrus Commission will discuss shifting about $556,000 from reserves — nearly matching the amount in its reserves as of Oct. 31 — to cover programs in the current fiscal year.

Republished with permission of the News Service of Florida.

State challenged on methadone licenses after campout

Florida officials’ first-come, first-served system for dozens of new methadone-treatment licenses resulted in applicants camping out in tents with sleeping bags, coolers and, in one case, a gun, to be first in line.

Pictures of applicants lounging in chairs outside the Department of Children and Families headquarters in Tallahassee are among the documents filed by methadone-treatment providers in a challenge to an emergency rule that resulted in the type of activities usually associated with fans lining up for tickets to a concert or a major sporting event.

Instead, the people camped out were vying to be first in line as workers at the state agency unlocked the doors at 8 a.m. on Oct. 2, when the application period for the methadone-treatment licenses opened.

Three non-profit treatment providers who lost out on getting some of 49 new licenses are arguing, in an administrative challenge filed Dec. 11, that the Department of Children and Families wrongly created an emergency rule that is unfair to potential vendors and could leave poor drug addicts in the lurch. At least 16 other providers are expected to join the challenge.

Florida officials this summer decided to double the number of methadone clinics in the state as part of a $27 million federal grant aimed at curbing opioid addiction and overdoses.

Under an old rule, criteria used to pick the methadone medication-assisted treatment providers included the number of years applicants had been licensed to provide substance abuse services; the applicants’ “organizational capability” to provide treatment; and the providers’ history of noncompliance with the department’s rules.

In August, the Department of Children and Families issued an emergency rule aimed at expediting the new licenses. The new rule, finalized in September, gave providers the ability to submit applications for licenses on a “first-come, first-served” basis.

That prompted the campout in front of the agency’s headquarters.

Representatives of two of the treatment providers saw the line outside the agency when they went to check on the address the day before the application period opened, lawyers for Operation Par, Inc., DACCO Behavioral Health, Inc., and Aspire Health Partners, Inc., wrote in the 38-page petition.

“Some individuals had arrived days earlier and were camping outside the department offices in tents, with portable chairs, sleeping bags, and coolers stocked with provisions,” the lawyers wrote. “The applicants remained in line, and male applicants would leave only to urinate behind the building, but female applicants had no options for restroom facilities.”

At least one of the people in line was armed, “ostensibly to protect their spot in line,” according to the court filing.

Many of the people in line didn’t have applications with them, but the documents were delivered before 8 a.m. Monday, “and clean, well-rested persons took their place in line,” lawyers for the petitioners wrote.

State officials selected Colonial Management Group, L.P., to apply for 19 licenses. Psychological Addiction Services LLC was chosen to apply for 20 of the 49 licenses, and a third for-profit organization, Relax Mental Health, was selected to apply for eight licenses.

The Department of Children and Families notified the losing providers Nov. 16 that they had not received licenses.

“The number of applications for new providers in the county/ies you applied for exceeded the determined need,” the letter said. “Pursuant to the emergency rule, the selection of a provider was based on the order in which complete and responsive applications were received. Your application was not approved to apply for licensure.”

Department of Children and Families spokesman David Frady wouldn’t comment directly on the rule challenge, but said the agency “remains committed to ensuring an adequate service network for individuals in crisis and in need of substance abuse services.”

“Ensuring access to care is an essential element in fighting the opioid epidemic and helping families recover. DCF moved quickly to get help to people in parts of the state where medication assisted treatment is not currently available,” Frady said in an email.

Methadone medication-assisted treatment programs use a mix of methadone and behavioral therapy to treat opioid addiction.

But the service providers challenging the rules say the for-profit vendors don’t accept Medicaid or third-party payments, such as health insurance, raising questions about their effectiveness in combating the opioid scourge that prompted the emergency rule and caused Gov. Rick Scott to declare a public health emergency earlier this year.

By granting 96 percent of the new license slots to those companies, “the department has alienated indigent patients and failed to expand methadone medication-assisted treatment services effectively, despite the stated purpose of the rule,” wrote layers for the petitioners, who do accept such payments.

“In short, the process was not fair and equitable in its treatment of providers” and “failed to ensure that methadone medication-assisted treatment services would be expanded in a way that was capable of treating patients in need of critical services, no matter where they fall on the economic spectrum,” the lawyers argued.

In its justification of the rule, the Department of Children and Families decided that the new procedure was fair because “it ensures the equitable treatment of methadone medication-assisted treatment providers.”

But the petitioners asserted that the rule didn’t ensure “the equitable treatment of methadone medication-assisted treatment providers,” as the health department maintained.

“It simply guaranteed award to those people who decided to camp out at the department,” they argued.

The petitioners are asking Administrative Law Judge R. Bruce McKibben to declare the emergency rule invalid because there was no immediate threat to the public health, safety and welfare.

The lawyers argued that the emergency rule wasn’t needed because there was already a rule in place that allowed the department to do what Scott’s June 29 executive order declared was necessary: assess the need for additional medication-assisted licenses and additional providers.

The Scott administration maintained that the executive order was necessary to immediately draw down federal grant funds instead of waiting until the next fiscal year started on July 1.

But the department didn’t issue the emergency rule until Aug. 25, more than a month after the new fiscal year began, and didn’t follow its own existing rule requiring that a needs assessment be performed and published by June 30, lawyers for the losing treatment providers argued.

The effect of the emergency rule was to actually delay the issuance of licenses, according to the petitioners.

“It appears that this has been an ongoing issue for at least several years, but there is no reason why an immediate danger existed on August 25, 2017, such that an emergency rule was needed. The only new fact was that there was federal grant money available. But the fact that grant money was available does not create an emergency,” the lawyers wrote.

Irma insurance claims near 866,000 as pace slows

Estimated insured losses from Hurricane Irma have topped $6.55 billion, with the number of claims approaching 866,000, according to information released Monday by the state Office of Insurance Regulation.

The latest report showed that 865,974 claims from the September storm had been filed with insurance companies as of Friday, with 719,512 involving residential properties.

While people have several years to file claims, the numbers indicate a slowing in reported damages, as numbers posted by the state office on Dec. 4 showed 853,356 claims with estimated losses of $6.3 billion.

Lynne McChristian, spokeswoman for the Insurance Information Institute, said Irma could have been “much worse” for homeowners and the industry.

“The insurance companies have been well-capitalized,” McChristian said. “They have been waiting for this. There may be some claims that will continue to be filed, but insurance companies know that this is what happens when you are dealing with Florida’s hurricane risk.”

While figures are not available from individual private insurers, state-backed Citizens Property Insurance reported last week it had received 63,500 claims from Irma. Most were in Miami-Dade, Broward and Monroe counties.

Citizens anticipated its number of Irma claims will grow to 70,000, with $1.2 billion in damages, over the next year.

Citizens President and CEO Barry Gilway also said Wednesday that he expected the storm to increase Citizens’ policy count from “about 442,000 policies back up to 500,000” in the next year.

In the overall industry, Miami-Dade County has the largest number of Irma-related claims, with 114,078 as of Friday, according to the Office of Insurance Regulation numbers. Other counties with large numbers of claims included Broward, 71,970; Orange, 68,306; Lee, 65,311; Collier, 63,644; and Polk, 50,180.

Irma made landfall Sept. 10 in Monroe and Collier counties, causing widespread destruction and at least 84 deaths in Florida. The insurance industry has closed 48 percent of Irma claims with some payment. Another 31 percent were closed without any payments.

In most cases where money did not change hands, the damages failed to meet policyholders’ deductibles, McChristian said.

To reduce risk in Florida, the House Select Committee on Hurricane Response and Preparedness has received a number of potential housing changes — as part of the more than 140 recommendations — for lawmakers to consider during the 2018 legislative session, which begins in January.

Among the proposals, Rep. Holly Raschein, a Key Largo Republican, suggested the state identify areas where rebuilding after disasters might be high-risk and to consider options for not rebuilding, including the possible purchase of the properties. The land, she suggested, would be used to create additional open space and natural buffers.

Meanwhile, Sen. Annette Taddeo, a Miami Democrat, and House Minority Leader Janet Cruz, of Tampa, introduced a proposal (SB 1282 and HB 1011) last week that would require insurance companies to disclose to homeowners when coverage lacks flood insurance.

“I’ve met many constituents who had no idea that their hurricane coverage did not include protections when their homes flooded,” Taddeo said in a prepared statement. “This is especially problematic in South Florida as we face sea level rise and stronger storm surges from climate change.”

School board term limits proposed in Legislature

A House Republican who previously served on the Duval County School Board proposed a constitutional amendment Monday that would place term limits on school board members across the state.

The proposal (HJR 1031), filed by Jacksonville Republican Rep. Jason Fischer, comes as the state Constitution Revision Commission also considers placing a school-board term limit proposal on the November 2018 ballot.

Both proposals, which would need voter approval, would limit school board members to two four-year terms.

Fischer’s proposal is identical to a proposal (SJR 194) that Sen. Greg Steube, a Sarasota Republican, filed in August.

The Fischer and Steube proposals are filed for the 2018 Legislative Session, which starts Jan. 9.

 The 37-member Constitution Revision Commission, which meets every 20 years, has the authority to place proposed amendments directly on the 2018 ballot. It is considering dozens of proposals.

Assisted living group challenges generator rule

A statewide long-term care association has challenged a proposal by Gov. Rick Scott‘s administration to make permanent a controversial rule that requires assisted-living facilities to have generators and enough fuel to provide 96 hours of backup power.

Attorneys for the Florida Senior Living Association filed a petition Friday in state administrative court arguing that the Florida Department of Elder Affairs overstepped its legislative authority and that the new proposed rule puts requirements on assisted-living facilities that are not authorized in state law.

The Florida Senior Living Association, formerly known as Florida Argentum, also argues in the petition that the proposed rule is vague. The group represents more than 350 assisted living facilities across the state.

“The proposed rule is impermissibly vague as evidenced by DOEA’s (the Department of Elder Affairs’) inability to answer basic questions relating to standards it intends to enforce should the proposed rule go into effect,” one part of the petition says.

The proposed rule closely tracks an emergency rule the Department of Elder Affairs issued in September following Hurricane Irma. That rule and one issued by Agency for Health Care Administration that affects nursing homes were invalidated in October after a trio of industry groups, including The Florida Senior Living Association, challenged them.

Despite the invalidation decision by an administrative law judge, the Scott administration maintains that the emergency rules remain in effect and has been enforcing them. A Scott spokesman also fired back against the new rule challenge filed Friday.

“This rule is solely focused on saving lives. This association should focus on keeping seniors safe and not on lawsuits,” Scott spokesman McKinley Lewis said.

The rules stem from the deaths of eight residents of a Broward County nursing home on Sept. 13, three days after Hurricane Irma hit the state. The nursing home, The Rehabilitation Center at Hollywood Hills, lost its air conditioning system in the storm and did not have a backup power system to cool the building.

The emergency rules drew criticism and opposition from nursing homes and assisted-living facilities, in part, because of a short timeframe to install generators and add fuel supplies.

Amid the legal wrangling about the emergency rules, the Scott administration proposed the more-permanent rules. Also, lawmakers are expected to consider several proposals during the upcoming legislative session about requiring generators and fuel supplies.

State estimates indicate that complying with the generator and fuel-supply requirements would cost $280 million for assisted-living facilities and $186 million for nursing homes. The large price tags mean the rules would have to be ratified by the Legislature before they could take effect.

The Scott administration also has moved to revoke the license of The Rehabilitation Center at Hollywood Hills, which is fighting the decision. A multi-day hearing is scheduled to start Jan. 29 in that case.

Republished with permission of the News Service of Florida.

Voters could decide tobacco, `certificate of need’ issues

Floridians could wind up voting on two contentious health care proposals that on Thursday drew closer to the 2018 ballot.

A panel of the Florida Constitution Revision Commission approved separate proposed constitutional amendments that would alter how much money is set aside for anti-smoking programs and eliminate long-standing state regulations about the construction of hospitals and nursing homes.

Florida receives money each year as part of a landmark 1997 multibillion-dollar settlement with tobacco companies. Part of that money is dedicated to anti-smoking programs, including an advertising and marketing campaign that currently receives $23 million a year. This requirement was put in the state Constitution at the urging of anti-smoking and health groups in 2006 after legislators cut funding to the program.

State Rep. Jeanette Nunez, who is a member of the Constitution Revision Commission, wants voters in 2018 to approve a proposal that would guarantee that a part of the anti-smoking money is shifted to research and treatment of cancer. If ultimately passed by voters, it would result in about $14 million being set aside in 2019.

“Research is absolutely an important component of prevention,” Nunez, a Miami Republican, said. “It is one of our most important tools of prevention.”

But Nunez’s proposed constitutional amendment drew fire from anti-smoking groups and other health care organizations such as the American Cancer Society. They said Florida’s current programs, including the advertising campaigns, have been successful in reducing smoking rates among adults and teenagers.

Matt Jordan with the American Cancer Society Cancer Action Network called it “counterproductive and counterintuitive to divert money from cancer prevention to cancer treatment and research.”

It’s not clear yet if the proposal will be placed on the ballot. The commission is a 37-member body that meets every 20 years to consider and recommend changes to the Florida Constitution. The full commission must approve any amendments that will go before voters. Amendments then would need to get 60 percent support from voters to pass.

Along with approving Nunez’s proposal Thursday, the commission’s General Provisions Committee also backed a proposed constitutional amendment that would eliminate “certificate of need” regulations for health care facilities. The proposal would prohibit the state from limiting the number of hospitals, nursing homes, hospices, or intermediate care facilities for individuals with disabilities.

Frank Kruppenbacher, an attorney and commission member, said the state should eliminate barriers that he contends limit consumer choice and innovation in health care. He cited battles in Central Florida over a children’s hospital and a new hospital for the University of Central Florida that he said were sparked by a tug-of-war over money and competition.

Under the certificate of need process, the state must sign off on the construction of facilities such as new nursing homes and hospitals and the addition of services such as organ transplants or pediatric open-heart surgery.

The proposal to eliminate the so-called CON requirements was strongly opposed by the nursing home industry and groups representing hospitals. Opponents predict the amendment would diminish quality and access to care in many geographical areas, especially those in low-income neighborhoods.

Nunez, who noted that the Florida House has pushed for repeal of certificate-of-need laws, voted against the proposal after saying that the issues should be dealt with by the Legislature and not placed in the Constitution.

“Putting this in the Constitution would be asking voters to weigh in on a highly technical nuanced issue,” Nunez said.

But Kruppenbacher said it was time to take the CON battle to voters.

“I don’t have faith in the Legislature,” he said. “I think the public should have the right to vote on (whether) they want an open and free market that is otherwise stifled.”

Republished with permission of the News Service of Florida.

FIU suspends Greek life

Florida International University will suspend activities at fraternities and sororities beginning in January, President Mark Rosenberg announced Friday.

“After serious consideration, and keeping the safety of our students top of mind, I have decided to pause all Greek activities on our campuses for at least one month starting Jan. 1,” Rosenberg said in a message to students, faculty and other members of the FIU community.

Noting other schools have taken similar action, Rosenberg said he made the decision as “a consequence of growing concerns about the state of fraternity and sorority life at FIU as well as around the nation.”

In early November, Florida State University President John Thrasher indefinitely suspended Greek activities at his school after the death of a fraternity member at an off-campus party.

The University of Central Florida also suspended the Theta Sigma chapter of the Alpha Xi Delta sorority last month after allegations of underage drinking and hazing.

FIU suspended the Tau Kappa Epsilon fraternity this fall after school officials linked to it a series of internet screenshots that included images of nude women, anti-Semitic and rape jokes and references to pedophilia.

“The purpose of this pause in Greek activities is to allow time for the Greek community and university administrators to review and strengthen policies and procedures with the goal of enhancing safety and promoting behavior that is consistent with FIU’s values and our Student Code of Conduct,” Rosenberg said in announcing his decision Friday.

The FIU president said all Greek activity would be suspended except chapter and council meetings and educational workshops held to discuss improvements in the fraternities and sororities.

He thanked Greek-system leaders who are working with the administration on changes.

“I hope all members of the Greek community at FIU will join me in ensuring that we take this opportunity to establish and observe norms that are consistent with safe and respectful behavior that uplifts the community and provides a supportive culture of growth and tolerance,” Rosenberg said.

Jeanette Nunez proposes year-round daylight-saving time

With the measure dubbed the “Sunshine Protection Act,” a House Republican on Friday proposed a bill that calls for Florida to observe daylight-saving time throughout the year.

The bill (HB 1013), filed by Miami Republican Rep. Jeanette Nunez, indicates it would depend on Congress changing a law to authorize states to stay on daylight-saving time year-round.

But the Nunez proposal, which says Florida “should be kept sunny year-round,” could clash with a bill (SB 858), filed by Sen. Greg Steube, a Sarasota Republican, that would lead to the state exempting itself from daylight-saving time and observing standard time.

The bills are filed for consideration during the 2018 Legislative Session, which starts Jan. 9.

Daylight-saving time this year started March 12 and ended Nov. 5.

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