Diagnosis for 11.14.21 — Checking the pulse of Florida health care news and policy

Welcome to the second Special Session of the year for the Florida Legislature. The first one ratified the Gaming Compact with the Seminole Tribe of Florida, while this five-day Session deals primarily with COVID-19 vaccination mandates.

But it probably won’t take the full five days. After behind-the-scenes negotiations, the House and Senate released four identical bills last week — a sign the plan is to pass the bills as quickly as possible without any significant changes. Or, as they say in Tallahassee lingo: These bills are greased.

Democrats have loudly criticized the Special Session as an exercise in political theater designed to aid Gov. Ron DeSantis. But despite their complaints — as well as concerns flagged by business groups such as the National Federation of Independent Business Florida and the elder living industry group Leading Age Florida — no amendments have so far been filed to any of the bills.

The House Pandemics & Public Emergencies, Health & Human Services, and Commerce committees are slated to hold four-hour meetings Monday.

On Tuesday, the full House meets at 10 a.m. The chamber is slated to pass the bills by Wednesday.

The Senate Judiciary Committee meets Monday at 2:30 p.m. The full Senate is slated to deliberate the bills when it meets Wednesday. The Senate calendar shows the chamber is expected to complete debate and pass the bills by noon Thursday.

This edition of Diagnosis breaks down each of the four bills while also providing additional context about the politics surrounding these issues.

— Issue: Vaccine Mandates —

What the bill does: The bills (HB 1 and SB 2) would prohibit private employers as well as public schools and local governments from mandating COVID-19 vaccinations for employees. The proposal is a blanket ban for public employers, while private companies would not be able to require vaccinations unless they offer five opt-out options, including exemptions for religious reasons and health reasons such as pregnancies. Private employers that violate the law would face steep fines and investigations by the state Department of Legal Affairs.

Why is this important?: DeSantis called a surprise Special Session railing against vaccine mandates and President Joe Biden‘s administration. The state has already challenged the federal mandates in court. But Florida’s Republican Governor also wants to sign into law legislation challenging mandates and establish another demarcation between him and Biden. The bills, however, put Florida businesses in a crossfire over vaccine mandates, with some — such as Florida’s hospitals — saying they plan to follow federal mandates that tie crucial Medicaid and Medicare funding to whether they implement them.

Why do this?: This main bill allows DeSantis to brandish his anti-mandate credentials in a Special Session designed to gain national attention. But the bills also align Florida law with previous administrative policies on mask mandates and vaccine mandates that have had their legality questioned and challenged.

Noteworthy: The bills are not anywhere near what DeSantis first championed. He had suggested stripping COVID-19 liability protections from businesses that enact mandates. He also wanted to allow employees who had adverse reactions to vaccines to file workers’ compensation claims. Neither concept made this bill. Instead, businesses could be subjected to state investigations and ultimately fines if they do not allow one of the five opt-outs. Another big point: Most of the proposed policies in the bill are time-limited and would be in effect only through June 1, 2023.

— Issue: Public Records —

What the bill does: The bills (HB 3 & SB 4) shield from public view any complaint filed by an employee to the Attorney General’s office against a business accused of violating the proposed new law on vaccine mandates. Any records regarding an investigation would be exempt from the state’s public record laws while the investigation is underway.

Why is this important?: This would keep secret the identities of those who file complaints about their employers. And the investigative records further would not be disclosed after an investigation is over if the information reveals an employee’s medical information or religious beliefs. The law would allow information to be released in aggregate format.

Why do this?: The rationale is this will prevent employers from retaliating against employees who report companies for violating the state’s new law on vaccine mandates.

Noteworthy: This bill would require a supermajority vote to become law. Public records exemptions must pass with a two-thirds vote. The legislation also includes a provision that would automatically repeal the exemption on Oct. 2, 2023.

— Issue: State Safety Programs —

What the bill does: The legislation (HB 5 & SB 6) begins the lengthy and cumbersome process of creating a Florida Occupational Safety and Health State Plan that would eventually place health and safety regulations of employers under state control. The bills direct the Governor’s Office to create a state plan and include $1 million for the effort.

Why is this important?: Eventually, it could lead to Florida setting up a regulatory agency to replace the federal Occupational Safety and Health Administration in the state. Currently, 22 states have an OSHA-approved state program, while five states have programs that apply only to public sector employees.

Why do this?: This is an idea pushed by Senate President Wilton Simpson and House Speaker Chris Sprowls and was not initially at DeSantis’ urging. OSHA is the federal agency that has enacted rules requiring large private employers to vaccinate employees or subject them to regular testing. Those rules are being challenged by multiple states and companies.

Noteworthy: Getting a state-approved plan is not something that would happen overnight. There is a process that requires federal authorities to examine state efforts and ensure state standards for worker protections are as effective as federal regulations. To gain initial approval, the state must assure OSHA it will have enough staff and regulations in place within three years. Once a state gains approval, it is eligible for federal funding to help pay for the program. Once final approval is given, OSHA relinquishes its authority.

— Issue: Surgeon General Powers —

What the bill does: The legislation (HB 7 & SB 8) repeals the state Surgeon General’s authority to order mandatory vaccinations against diseases that pose a severe danger to public health.

Why is this important?: This bill removes a law put in place in the immediate aftermath of the Sept. 11 attacks. Shortly after the terrorist attacks, letters containing the deadly bacteria anthrax were distributed, resulting in five Americans’ deaths, including someone in Florida. State legislators in the 2002 Session gave the state Surgeon General the power to grant public health emergencies and take steps if needed — including ordering vaccinations.

Why do this?: The current law was put in place by a Republican-controlled Legislature, but the decision to strip the power reflects the change in thinking within the GOP amid the COVID-19 pandemic. Health-related mandates are now viewed as government overreach.

— Opposition —

A group of physicians is making a final plea for the Legislature to reject DeSantis’ vaccine and mask mandate legislation.

At 8 a.m., ahead of the first committee meetings of the week, Committee to Protect Health Care Drs. Bernard Ashby, Jennifer Cowart and Frederick Southwick will hold a virtual news conference against what they call the Governor’s “anti-health proposals.” Instead, they will call for efforts to promote widespread vaccination and mask use.

“As physicians, we’re concerned that the Special Session the Florida Legislature is holding at Gov. Ron DeSantis’ request will only threaten more lives and prolong the suffering of the ongoing COVID-19 pandemic,” the doctors told Florida Politics.

Most doctors and medical professionals have pushed to get more people to wear masks and get vaccinated.

“Yet the Republican leaders choose to push anti-health rhetoric and policies that will only undermine these safety measures and prevent us from ever reaching normal life again,” they continued.

Republican leadership already reached a consensus on legislation for the Special Session, making last-minute changes unlikely. That’s not stopping the Committee to Protect Health Care from making its case.

The doctors said DeSantis has chosen politics over public health by abandoning “common-sense safety measures” to instead cater to his “extremist followers.”

“Now, after 60,000 deaths and counting, it’s shameful that he would call this divisive Special Session to spread even more misinformation and opposition to proven health measures,” the doctors said. “We hope that the Legislature will reconsider acquiescing to the Governor’s dangerous demands.”

— Vox Populi —

Nobody doubts where DeSantis is positioned on the question of vaccine mandates, and stakeholders are poised to see how state lawmakers twist through the many nuances of individual and business rights in this week’s Special Session.

Does opinion in the Sunshine State reflect national sentiment?

Multiple nationwide surveys suggest fairly wide discontent — or, at the very least, hefty divides — on the question of vaccine mandates, despite the increasing prevalence of such requirements.

As of the end of October, Kaiser Family Foundation reports 1 in 4 American workers say their employer has required COVID-19 vaccinations, up from 9% in June, a 177% increase.

Yet half of employees maintain they do not want their employer to mandate vaccines. Among workers who aren’t vaccinated, 37% say they would leave their job if a mandate were issued or if required to get tested weekly, and 7 in 10 say they would leave their job due to a vaccine mandate if weekly COVID-19 testing isn’t offered as an alternative. Another 1 in 4 American adults says they know someone who has left a job due to vaccine mandates.

Predictably, this and other national polls reveal deep partisan divides on all things mandates, including whether mandates would help the economy, whether they’ll help reduce infection rates, if Biden’s timeline for employers is too soon or not soon enough, and whether mandates are moral.

But no state may be as perfectly divided as Florida, as revealed by recent Sachs Media statewide voter surveys and reported in this publication’s Last Call newsletter.

In the least controversial, relatively speaking, 40% of Florida voters feel the state should wait to address issues until the January 2022 regular Session, but 60% agree with DeSantis, Simpson and Sprowls in carving out dedicated time to work through them in advance during a Special Session. Two-thirds of Republicans feel this way (67%), as do 55% of Democrats.

But what voters want lawmakers to do ultimately is split.

On how Floridians feel about Biden’s requirement that businesses with 100 or more employees require workers to be vaccinated by Jan. 4 or conduct weekly tests among unvaccinated employees, support is split at 47% each in favor and opposition to the mandate, with the remaining 6% saying they feel states should make the decision, not the feds.

Nearly as divided are opinions on which should be more protected under state law: the rights of individual employees to choose whether they receive vaccines (52%) or the rights of private businesses to determine whether to require vaccines at their companies (48%).

On that, 77% of Republicans care more about protecting the rights of individuals, while 72% of Democrats care more about protecting the rights of businesses to decide.

But it seems Florida Democrats side with business rights mostly when they fall on the side of mandates.

Specifically, when presented with a scenario in which state law punished businesses for requiring vaccinations, 70% of Democrats say they would side with a company that wanted to do so regardless. However, in a second scenario, just 30% of Democrats say they would side with a business that decided not to check vaccination status even if a state law mandated it.

Florida Republicans, for their part, appear more conflicted.

An overwhelming 89% of Republicans would side with a private business that wanted to shirk vaccination mandates. But, when presented with the alternate scenario — a law that punishes businesses for requiring vaccines — nearly half (46%) would still side with the business’ right to do so. This suggests many Republicans — despite a baseline distaste for government mandates — nevertheless want to protect private business rights to make individual choices, even if that means leaving the door open for vaccine requirements.

These sentiments are meaningful. They reflect not only where Floridians would want to work, but also where they may ultimately live, play, and shop.

Chief Financial Officer Jimmy Patronis may want to take note, and perhaps update his pitch to California’s In-N-Out Burger fast food restaurant to move their headquarters to a more freedom-loving Florida. A full 77% of voters say they would either try In-N-Out because of the chain’s stance on mandates (29%) or would try their food to see if they like it regardless of this issue (48%). This leaves just 23% who say they would boycott In-N-Out over the controversy.

What unfolds over the Special Session will no doubt earn Florida additional spotlight. And the top-of-mind question remains: will conservative leaders be able to thread the very delicate needle of individual rights while preserving autonomy for businesses?

— ICYMI —

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

OSHA overstep? — Florida filed a 33-page motion with a federal court in Atlanta last week asking it to pump the brakes on a federally proposed workplace safety rule requiring employees at large companies to get vaccinated against the COVID-19 virus or to produce negative test results weekly. Attorney General Ashley Moody’s office took the lead on the filing, a follow-up to a petition filed with the court on Nov. 5. Attorneys for Moody’s office argued the Occupational Safety and Health Administration overstepped its legal authority when it issued the rule and that the rule violates the First Amendment and the Religious Freedom Restoration Act of 1993. Alabama and Georgia joined Florida in the filing.

More bark than bite — The Special Session bills would not permanently ban employers from requiring employees to get a COVID-19 vaccine. It would last only until June 2023. And the main bill released does not eliminate COVID-19 liability protections for businesses that require employees to get vaccinated, as DeSantis once hinted he would do. It also does not entitle workers to tap into workers’ compensation benefits if there are adverse reactions and injuries after a mandated vaccination. Businesses that don’t comply with the provisions in the bills could still face hefty fines — up to $50,000 per violation for companies with 100 employees or more and $10,000 per violation for companies with fewer than 100 employees.

Vaccination up, deaths down — Nearly 59% of the state’s nursing home staffers are fully vaccinated against the COVID-19 virus, a 5-percentage-point jump in vaccination rates from the previous month, according to AARP Florida data released Thursday. The AARP Nursing Home COVID-19 Dashboard also shows 150 Florida nursing facilities have met the industry standard to have 75% of staff vaccinated. That means about 80% of Florida’s nursing homes have not met the standard. Nevertheless, AARP Florida State Director Jeff Johnson celebrated the findings. Additionally, Johnson said, COVID-19 positivity rates among nursing home residents had also dropped from the previous reporting, plummeting from four cases per 100 residents to one case per 100 residents.

Fewer choices — The Department of Management Services is floating a proposal that — for purposes of procuring health maintenance organization coverage for state employees — divides the state into nine regions. The proposed regulation lays the groundwork to move forward with a 2019 law allowing the state to competitively bid HMO contracts in the multibillion-dollar state group health insurance program regionally and limit the number of HMOs awarded contracts in each region. But at least one Senate Republican says the state needs to do more than change its contracting practices. “Somebody needs to show me how we would save a bunch of money this way,” Senate Governmental Operations Committee Chair Jeff Brandes told Florida Politics.

A bit excessive — The Agency for Health Care Administration has dropped three invitations to negotiate with vendors that can update the state’s antiquated Medicaid management information systems and is expecting responses on the three requests by early- to mid-December. In hopes of having contracts inked between the summer and fall of 2022, the agency is assembling two multiagency teams for each Invitation to Negotiate (ITN) — one to evaluate the vendors’ responses and the other to negotiate with vendors that received top evaluation scores. All the agency needs is the Florida Legislature to approve its legislative budget request for $117.8 million, so it can pay the vendors for the needed work. It’s a number that one top House Republican already suggested may be “excessive.”

Papers, please — House Appropriations Committee Chair Jay Trumbull filed a bill (HB 539) last week that would require nursing facilities to file audited financial statements within 120 days of the end of their fiscal year. While the long-term care industry worried last Session that an audited financial report would drive up costs for nursing homes, this year may be different. In a statement to Florida Politics Tuesday, Florida Health Care Association spokesperson Kristen Knapp said her group supports the bill. The association “welcomes working with the House toward greater transparency efforts that will bring more visibility to the financial challenges that have plagued nursing centers over the last 20 plus months,” Knapp said in a statement.

Red flags — In a statement Friday, Leading Age Florida CEO Steve Bahmer said nursing homes must comply with Centers for Medicare and Medicaid rules that require staff at health care facilities that accept Medicare and Medicaid to be vaccinated as a condition of receiving federal health care dollars. Those rules require staff to get their first vaccine by Dec. 5 and be fully vaccinated by Jan. 2. While DeSantis has said he would challenge the CMS rules, the state has not done so to date. Bills filed for the Special Session would prohibit employers from having a COVID-19 vaccination mandate for employees without providing staff five reasons to opt-out. Bahmer said providers cannot comply with state and federal guidelines unless lawmakers exempt health care providers.

— Pencil it in —

Monday

2:30 p.m. — The Senate Judiciary Committee will meet to consider the slate of bills filed for the Special Session. They include the main anti-vaccine mandate bill (SB 2B), a measure providing a public records exemption for workers’ medical information (SB 4B), legislation laying the groundwork for the state to withdraw from OSHA (SB 6B) and a proposal that would strip the state health officer of their authority to mandate vaccinations during a public health emergency (SB 8B).
Place: Room 412 of the Knott Building.

3 p.m. — The House Commerce Committee will consider the anti-vaccine mandate bill (HB 1B) and a measure providing a public records exemption for workers’ medical information (HB 3B).
Place: Room 212 of the Knott Building.

3 p.m. — The House Health & Human Services Committee will consider a bill (HB 7B) that would remove the authority of the state health officer to mandate vaccinations during a public health emergency.
Place: Room 17 of the House Office Building.

3 p.m. — The House Pandemics & Public Emergencies Committee will consider legislation that would start the process for the state to withdraw from OSHA (HB 5B).
Place: Room 404 of the House Office Building.

7 p.m. — The House Rules Committee is scheduled to meet.
Place: Room 404 of the House Office Building.

Tuesday
TBD

Wednesday

2 p.m. — The Senate will hold a floor session.
Place: Senate chamber.

Thursday
9 a.m. — The Senate will hold a floor session.
Place: Senate chamber.