Diagnosis for 11.8.21: Checking the pulse of Florida health care news and policy

Good Monday morning.

Gov. Ron DeSantis and top legislative leaders finally rolled out their proposals for the upcoming Special Session, with the Republican Governor vowing to fight back against private and public employers that try to “shove” a vaccine mandate on their employees.

“We’re going to do something in this Special Session that matters, we’re going to do something … that will ease people’s minds,” DeSantis said at an early morning news conference held at an aluminum and construction facility in Zephyrhills. “We’ve got to stop bossing people around.”

The legislative proposals include bills that will allow parents to file lawsuits directly against school districts that impose mask mandates without a parental opt-out. One of the bills would set the stage for the state to withdraw from federal oversight of the Occupational Safety and Health Administration.

Another bill would enshrine into law a ban on local governments from imposing a vaccine mandate. The DeSantis administration contends that the ban is already in law, but they have relied on a reading of the state’s recently passed vaccine passport law. DeSantis even said earlier this year that the vaccine passport law did not cover employer mandates.

Florida has already launched legal challenges to vaccine mandates ordered by the Biden administration, including requiring large employers to impose a vaccination-or-testing requirement for employees. The state is also challenging a vaccine mandate on federal contractors.

—Upside down —

It’s not often that U.S. Reps. Frederica Wilson or Debbie Wasserman Schultz agree with U.S. Sen. Rick Scott on health care policy.

But that’s exactly what happened Friday when five congressional Democrats raised alarms about a portion of the much-debated spending package pushed by the Biden administration.

Along with Wasserman Schultz and Wilson, Reps. Al Lawson, Stephanie Murphy, Darren Soto, and Democrats from 12 other states that have not expanded Medicaid to working childless adults under Obamacare sent a letter to congressional leaders that raised questions about a newly released proposal that could cut Medicaid payments to hospitals.

In the letter to House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer, the group of 20 Democrats said while they support passing President Joe Biden’s Build Back Better measure, the proposal to cut Medicaid funding to the non-expansion states is a “misguided penalty.”

“Though we agree that our states should be held accountable for not expanding Medicaid, compromising the very hospitals that provide care to our most vulnerable is not the solution. Surely there is a better way to pay for our proposal,” the letter states.

“The Build Back Better Act finally gives low-income adults in our states the chance to be covered, and with private health insurance,” the Democrats wrote. “The trouble is that it will take months, even years, to cover high percentages of the uninsured in non-expansion states with this temporary coverage solution. Meanwhile, the hospitals’ DSH funding will be slashed, and hospitals will not receive the funding that they rely on to keep their doors open today.”

House and Senate Democrats have spent months trying to piece together a version of Biden’s social spending plan, but it has continued to get bogged down in ongoing negotiations among progressive and moderate Democrats.

Before the congressional Democrats’ letter, Scott had sent his letter to members of Congress from the 12 non-expansion states warning them about the potential health care cuts that would occur as a result of the bill. His office warned that the bill results in a $200 million cut to the amount of disproportionate share hospital payments made to Florida facilities that treat large numbers of poor and uninsured patients. He also said the state will lose supplemental Medicaid payments under what Florida calls the “low-income pool” program. Scott’s office had not determined the amount of LIP reductions.

“Making drastic cuts to these valued and incredibly important programs defies reason,” Scott wrote in his letter. “House Democrats are choosing to impose needless cuts which would hurt charity hospitals and harm the poor.”

It isn’t the first time Scott has disagreed with Biden over the amount of supplemental Medicaid funds that should be sent to the state. The administration of former President Barack Obama in 2015 slashed the amount of annual supplemental Medicaid funds the state would be eligible to receive after then-Gov. Scott worked against efforts in the Florida Legislature to expand Medicaid in Florida.

 

#DAISNAID

DeSantis has torn into the Biden administration over vaccine mandates and repeatedly said for weeks now that no one should lose their job over their refusal to get a COVID-19 vaccine.

On Friday, the state officially filed its challenge to the mandate that would require large employers to either vaccinate their workers or subject them to weekly tests.

But during the early days of the pandemic, the DeSantis administration imposed stringent requirements on nursing home workers and those at assisted living facilities that put them in jeopardy of losing their jobs.

In July 2020, the state’s Agency for Health Care Administration enacted emergency rules that required COVID-19 tests every two weeks for nursing home workers — including everyone from licensed and certified nurses to staffers doing laundry. The rules flatly said nursing homes could not allow anyone to come to work unless they complied with the testing requirements.

The only nursing home employees exempt from the tests were those who had previously been infected with COVID-19 and recovered. Those staffers also were required to provide medical documentation to prove it.

Nursing homes and assisted living facilities were put on notice they could lose their licenses if they did not comply with the testing mandate.

Soon after the strict rule went into place, DeSantis lauded it as a success.

“If you are testing every two weeks like we are, you are going to be able to identify more and more of those before it spreads widely inside the long-term care center,” DeSantis said in mid-July. “And that really is the name of the game. And that will absolutely, if you can prevent outbreaks there, will absolutely save lives.”

DeSantis late last week railed against proposed vaccine mandates for large employers being put in place by the Occupational Safety and Health Administration. During a news conference, DeSantis also suggested that putting in a testing requirement for those workers who do not get vaccinated was onerous because employees could be required to pay for the tests. Florida provided testing supplies to nursing homes and assisted living facilities when it put in its own mandate.

“Because if an employer isn’t going to pick up the tab functionally, that is the same as saying that the individual is no longer going to have a job,” DeSantis said.

He also questioned why the federal government did it as an emergency rule and suggested it would exacerbate staffing levels at nursing homes and other health care providers.

“How is that going to help with staffing these facilities when everybody has been short-staffed now for a year and a half,” DeSantis said. “That is going to have a hugely negative effect even if it’s just a small percentage.”

The testing requirement for nursing home employees was a part of a whole series of moves the DeSantis administration took in 2020 to tamp down infections among the elderly, who were more at risk of dying if they caught the new coronavirus. And it also was made during a nursing and staff shortage.

DeSantis drew a distinction between what he called state mandates and those imposed at the federal level, saying states are bestowed with police power.

—What crisis? —

This week, four nursing homes that applied for the state’s gold seal program were asked about their reliance on outside nursing agencies to meet mandated staffing requirements.

Agency for Health Care Administration Deputy Secretary Kim Smoak asked representatives from the four nursing homes the same questions: Do you use any agency staff and how often?

Their answers didn’t necessarily corroborate the Tallahassee talking points that have been going around.

South Heritage Health and Rehabilitation Director Samantha White said the nursing home had not brought outside nursing staff into the building since 2019.

When Smoak asked the secret behind the St. Petersburg facility’s high staff retention, White said it was all about the money.

“We’ve offered some incentives to both our current staff and new staff that may want to join our team. We offer sign-on bonuses. We offer shift differential for all three of our shifts as well as shift bonuses when taking extra shifts as needed, and we also offer COVID-19 bonuses to our nursing staff.”

Premier Place at The Glenview in Naples has sporadically relied on outside agency staff, Executive Director Patrick Noonan told members of the Governor’s Panel on Excellence in Long-Term Care.

“We’ve done a nice job of retaining staff throughout this crisis, and even with the fact we’ve had a mandatory vaccination policy here for a little while now,” he told Smoak. “We are not dependent on agency staff to operate.”

Noonan said the vaccination mandate, which allows for religious and medical exemptions, has been in effect since Oct. 16, and the nursing facility is “very close to 100% vaccinated.”

Likewise, Oaks at Avon in Avon Park has not relied on staffing agencies to meet the minimum direct nursing care mandates.

Florida nursing homes must provide 3.6 hours of direct patient care, one hour of which must be provided by a licensed nurse while the other 2.5 hours can be provided by a certified nurse assistant. The nursing home industry has maintained that the tight labor market, exacerbated by the COVID-19 pandemic, has long-term care providers relying on nursing agencies for staff that costs more than hiring their own staff. Nursing costs at nearly 700 licensed nursing homes across the state increased by almost $300 million.

The industry has said those costs could be lowered if lawmakers would be willing to update the staffing requirements and eliminate the amount of mandated care provided by licensed nurses and certified nurse assistants.

First Coast Health and Rehabilitation in Jacksonville was the only one of the four Gold Seal applicants that relied on any regulatory nursing agency for staff. Facility Administrator Joseph Lewis told Smoak the facility had sufficient staff until four months ago as the delta variant of COVID-19 spread across the state.

“We had our own staff, but we had a big turnover with this last round of COVID,” he said.

Panel members recommended that all four applicants move to the next round of the Gold Seal process, which involves site interviews. The panel will discuss the site visit results at the Dec. 3 meeting.

—ICYMI —

In case you missed them, here is a recap of other critical health care policy reporting covered in Florida Politics this past week.

No rush — Monday marked the start of open enrollment for 2022 health insurance coverage in the federal health insurance exchange under a law often referred to as Obamacare. The 2022 open enrollment runs for 10 weeks, from Nov. 1 through Jan. 15, giving residents more time to choose a plan than they had last year when open enrollment was limited to six weeks. More money is also being directed at so-called “navigators” to help people enroll in the federal health insurance exchange. According to federal data, the number of people enrolled in the federal health insurance exchange in Florida topped 2.25 million in August, more than any other state. About 400,000 of those people enrolled during a special open enrollment period authorized by the Biden administration.

Climbing costs — Florida Health Care Association CEO Emmett Reed said Monday a workforce shortage exacerbated by the COVID-19 pandemic had increased direct care costs at Florida nursing homes by $300 million over the last year. That’s not to say, though, that the association will be asking for a $300 million increase in funding from the Legislature, Reed said. The FHCA will be meeting with its members next week to finalize its legislative budget proposal and upcoming Medicaid funding requests. Reed said the group might not ask for the total $300 million, which would result in a $19 increase in Medicaid reimbursement per day per patient. Reed said the $300 million increase in direct care costs could be offset if the Legislature agreed to modify the current staffing requirements.

Three-month bump — Lawmakers agreed to spend $100 million to increase for three months the amount of money the state pays 692 private nursing homes to care for poor and elderly residents who require institutional care. In addition to approving funding for the private nursing homes, the Joint Legislative Budget Commission also agreed to earmark more than $4.4 million to the Florida Department of Veterans Affairs to cover contracted costs of nursing care through January at five facilities it operates. Florida nursing home occupancy rates are plummeting, meaning nursing homes have less revenue coming in. Additionally, nursing care costs are increasing in Florida, and nationwide, because of a tight labor market. But some lawmakers expressed their doubts about the funding.

Slashing hours — Nursing home residents could have reduced the time spent with licensed nurses by nearly three-quarters under a proposal filed by Sen. Ben Albritton. Skilled nursing facilities currently are required to provide residents with 3.6 hours of licensed nursing care per day, of which 2.5 hours can be provided by a certified nursing assistant. SB 804 would reduce the 3.6-hour nursing care requirement to one hour. And in place of the 2.5 hours of CNA care, Albritton’s bill would allow nursing home facilities to provide what is called 2.5 hours of “direct care” instead. AARP Florida State Director Jeff Johnson told Florida Politics Wednesday the bill all but removes the “nursing” requirement from Florida’s nursing homes, and his association opposes the measure.

Multistate compact — The Senate Health Policy Committee on Wednesday unanimously approved Sen. Ana Maria Rodriguez‘s bill (SB 358) to authorize Florida to participate in a compact that would open the door for mental counselors to practice in the Sunshine State. It also would give mental health counselors licensed in Florida the green light to provide counseling outside of Florida. Georgia and Maryland are the only states to date that have signed on to the proposed compact. Backed by the conservative group Americans for Prosperity, the bill would not take effect until at least 10 states have joined the compact. In 2018, Florida nurses became eligible to get a multistate license under a nursing compact first authorized by state legislators two years earlier. That compact has 27 states that are participants.

Tick tock — Legislative Budget Commission documents show the Agency for Health Care Administration, which administers Florida’s massive Medicaid program, said it required “additional spending authority” before it could dole out the increases in federal funds to the entities that provide services. By approving the amendment, the Budget Commission gave the agency the green light it needed. The documents don’t show, though, when the state intends to actually allocate the funds to the providers, other than “later this fiscal year.” Members of the joint legislative spending panel attributed the delay in part to some of the finer details of Florida’s plan still requiring approval from the Biden administration. The $1 billion in additional federal funds must be spent by March 31, 2024.

A few recommendations — The Florida Health Insurance Advisory Board on Thursday agreed to forward eight proposals it would like to see lawmakers tackle in the 2022 Legislative Session, including a mandate for health insurance carriers and HMOs to provide customers with a copy of their medical records upon request. Chaired by Florida Insurance Commissioner David Altmaier, the panel also agreed the Legislature should alter current insurance laws and require the health insurance policies sold to small employers to include coverage for applied behavior analysis therapies for children with autism and Down syndrome. Florida already requires some insurance policies to include that coverage so long as the children were diagnosed by age 8.

Will the state bite down? — The state’s Medicaid managed dental care program draws few complaints about the care it provides, and users are highly satisfied, a high-ranking health care official in the DeSantis administration contends. Still, Florida Medicaid Director Tom Wallace says he would prefer the delivery of health care and dental care not split between separately managed care programs. Wallace told members of the House Health and Human Services Committee this week that having beneficiaries enroll in a separate Medicaid dental care plan can cause administrative hassles between the two health plans and interrupt the overall care provided to Medicaid patients. It’s not clear whether the state Agency for Health Care Administration will lobby the Legislature to change how dental benefits are delivered to Medicaid patients in Florida.

—Lobby Up —

The most lobbied health policy fight of the 2022 Session to date: Parents of adult medical negligence victims

Pop quiz: If your adult child dies because of medical negligence, where can you seek noneconomic damages for the pain and suffering this caused?

Answer: in any state but Florida.

That’s what Rep. Spencer Roach is attempting to remedy in what appears to be the most lobbied health policy bill (and the second-most lobbied bill) of all that have been filed in the 2022 Legislative Session so far.

HB 6011 would remove restrictions on the ability of parents to seek damages for pain and suffering when an adult child falls victim to medical negligence — bringing these cases on par with what Florida parents can seek in all other types of wrongful death actions, such as accidents caused by someone who was texting while driving.

The challenging reality is that regardless of whether parents have this option for recourse in medical malpractice cases, it’s an uphill battle to recover damages. Peer-reviewed research suggests 80% to 90% of all medical malpractice claims that are rated as “defensible” nevertheless result in no payment or settlement. Even in cases with the very strongest evidence of medical negligence, it’s a toss-up, with doctors “winning” in half of these regardless. These odds, coupled with the inability of parents to file claims at all, lead some to refer to Florida’s system as a “Free Kill” law.

Others draw attention to the flip side of medical malpractice claims, arguing they come at a cost to patients, providers, and the system as a whole regarding spiking insurance premiums, magnifying workforce shortages, and creating a culture of defensive practices that may harm others in its wake.

If the demographics of those lobbying this issue so far can predict an outcome, these debates could reach the same stalemate as they have in years before.

More than 50 “appearances” for HB 6011 have been reported to Florida’s House lobbying database to date, by 24 lobbyists on behalf of 14 principles, including many of the perennial players: the Florida Justice Association, Florida Justice Reform Institute, and the Florida Chamber of Commerce. Medical associations, including those representing family physicians, psychiatrists, podiatrists, osteopaths, pediatricians, and physical therapists, are also in the mix.

—Radar —

In addition to the coverage on Florida Politics, these stories are worthy of your time.

“Health care industry asking lawmakers to address chronic staffing shortages” via Jake Stofan of WFLA — Florida hospitals saw one out of four nurses leave their job last year, the highest turnover rate the state has ever seen. “We just saw during the selta surge what happens when you can bring beds in, but you can’t staff them,” said Florida Hospital Association President Mary Mayhew. Additionally, 92% of long-term care facilities say they’re facing staffing challenges. “And for 75% of them, it is the No. 1 concern,” said Nick Van Der Linden with LeadingAge Florida. Mayhew and Van Der Linden were among a diverse group of health care representatives who met Monday to raise the alarm in hopes of catching the ears of lawmakers. Additional Medicaid funding is the biggest ask for the long-term care facilities, as the industry has seen costs increase by $600 million.

“Home health care needs resuscitation in Florida” via John Grant for The Gainesville Sun — According to a new study, 90% of Americans want to age at home rather than in a long-term care facility, like a nursing home. Makes sense, right? But the current home health care system is already struggling to cover costs and hire and retain reliable workers. The average home health care aide makes around $11.61 an hour. In Florida, there is no state law requiring these workers to be licensed. The only requirement is to complete 75 hours of training. I can assure you without regulations in place, the elderly population can become an easy target for abuse and fraud. When Gov. Jeb Bush appointed me the executive director of the Office of Statewide Public Guardianship, I routinely witnessed people try to dupe seniors out of their homes and life savings. With an underfunded and understaffed home health care system, you can imagine the potential for problems.

“More than 10,000 patients caught COVID-19 in a hospital, analysis shows. Some never made it out” via Christina Jewett of Kaiser Health News — More than 10,000 patients were diagnosed with COVID-19 in a U.S. hospital last year after they were admitted for something else, according to federal and state records analyzed exclusively for KHN. The number is certainly an undercount, since it includes mostly patients 65 and older, plus California and Florida patients of all ages. Last November, Steven Johnson, 66, was expecting to get an infection cut out of his hip flesh and bone at Blake Medical Center in Bradenton, Florida. The retired pharmacist had survived colon cancer and was meticulous to avoid contracting COVID. He could not have known that, from April through September, 8% of that hospital’s Medicare COVID-19 patients were diagnosed with the virus after they were admitted for another concern.

“9/11 retirees struggling to get health care in Southwest Florida” via Amanda Porter of WINK News — Brave men and women worked hard to save lives during the September, 11th terror attacks. But now, years later and retired living in Southwest Florida, they are having a hard time getting the health care they need. Bill McMahon, a retired New York Police Department sergeant who has been living in Southwest Florida for 10 years, said there are about 700 NYPD retirees in Southwest Florida who need medical care, but some health care providers, including Lee Health, don’t take their health insurance. Others like Eric Bergstrom, who retired from the NYPD, are in dire need. “I developed, unfortunately, cancer from 9/11. Prostate cancer,” Bergstrom said.

“Lee Health approves plans for new Fort Myers hospital campus” via Katelyn Massarelli of ABC 7 — The Lee Health Board of Directors approved plans the move forward on planning the new hospital campus, officials with the health care system confirmed. They said it will tentatively be known as “Lee Health Colonial Campus.” According to Lee Health, the property will sit on 52 acres of land along Challenger Boulevard between Colonial Boulevard and Winkler Avenue. Lee Health officials said they are anticipating the campus will include an acute care hospital with 216 beds, 16 operating rooms, an emergency department with 30 bays, and a 16-bed observation unit. The permitting process for the new campus is expected to take about two years. Officials said after that is done, the building timeline is estimated to take an additional three years. The anticipated open date of the campus is in 2027.

“Florida Medicaid law has Volusia County spending hundreds of thousands feds would reimburse” via Mary Helen Moore of The Daytona Beach News-Journal — Volusia County will lobby the state Legislature to expand Medicaid coverage for those incarcerated in the county jail, a measure that could save the county hundreds of thousands of dollars a year. Those incarcerated in county jails in Florida lose access to Medicaid coverage, though the federal government carves out an exception for hospital visits that last 24 hours or longer. Florida, however, doesn’t include any exceptions in its plan. County spokesman Gary Davidson said about $1 million had been spent over the past two years to cover the hospital stays of inmates who would be eligible for reimbursement from the federal government if Florida updated its law. Florida is one of 12 states that has elected not to expand Medicaid eligibility since the Affordable Care Act took effect in 2014.

—Pencil it in —

Tuesday

9:30 a.m. — Court hearing in a lawsuit filed against Department of Health by Rep. Carlos Guillermo Smith and the Florida Center for Government Accountability.

Place: Courtroom 365B, Leon County Courthouse, 301 S. Monroe St., Tallahassee

10 a.m. — Economic and Demographic Research holds a revenue estimating conference.

Place: 117 Knott Office Building, the Capitol, Tallahassee.

1 p.m. — The Florida Health Information Exchange will host a webinar on its Encounter Notification Service.

Attend virtually: https://attendee.gotowebinar.com/register/7497719740751479824.

2 p.m. — The Agency for Health Care Administration is holding a workshop to discuss changes to rules on certificate of need applications. A copy of the proposed rule is here.

Call: (888) 585-9008; access code: 47611242.

Friday

9 a.m. — The Board of Dentistry will conduct a meeting related to disciplinary cases.

Call: (888) 585-9008; access code: 599196982. Public book here.

1:30 p.m. — The Board of Nursing will conduct a meeting related to disciplinary cases.

Call: (888) 585-9008; access code: 275112502. Public book here.

Monday, November 15

Noon — Florida Legislature convenes for a five-day Special Session to consider legislation related to vaccine mandates.

Place: Florida Capitol

Tuesday, November 16

Noon — The Board of Optometry holds a general board meeting.

Attend virtually: https://global.gotomeeting.com/join/584766365.

2 p.m. — The Agency for Health Care Administration holds a workshop to discuss draft language and forms required under a rule dealing with patient safety surveys.

Call: (888) 585-9008; participant code: 476211242.

Wednesday, November 17

8 a.m. — The Board of Psychology holds a probable cause panel meeting to consider disciplinary cases.

Call: (888) 585-9008; participant code: 564341766.

Thursday, November 18

8 a.m. — The Board of Medicine Probation Committee meets.

Attend virtually: https://global.gotomeeting.com/join/717632629.

Or, call: (571) 317-3112, participant code: 717632629.

9 a.m. — The Board of Pharmacy probable cause panel meets.

Call: (888) 585-9008; participant code: 599196982.

1 p.m. — The Board of Dentistry anesthesia committee meets.

Place: Rosen Plaza Hotel, 9700 International Drive, Orlando. Public book here.

Friday, November 19

7:30 a.m. — The Board of Dentistry meets.

Place: Doubletree by Hilton Orlando East-UCF Area, 12125 High Tech Avenue, Orlando.

Noon — Special Session scheduled to end.

Place: Florida Capitol, Tallahassee, Florida.

Noon — The Boards of Medicine and Osteopathic Medicine’s Physician Certification Panel Review panel meet.

Attend virtually: https://global.gotomeeting.com/join/717632629.

Or, call: (571) 317-3112; participant code: 717632629.