Diagnosis for 9.22.22: Checking the pulse of Florida health care news and policy

Welcome back to Diagnosis, a vertical that focuses on the crossroads of health care policy and politics.

— Back-to-Back —

Less than one week after the members of the Boards of Medicine and Osteopathic Medicine meet jointly in Tallahassee to discuss the headline-grabbing issue of gender-affirming care the members of the Joint Rules/Legislative Committee will have the proposed language to consider for approval when they meet in Tampa Oct. 6.

Members of the joint committee will hear from experts for two of those hours, but the 1,000-plus page recently released public book doesn’t identify the names of the “subject experts” or how many experts will present testimony.

If approved by the joint committee the Board of Medicine could agree to publish “proposed rules” as early as Oct. 7 and the Board of Osteopathic Medicine could agree to publish a proposed rule at its Nov. 4 meeting.

Once designated a proposed rule, the state has 21 days to finalize the proposal. That time is tolled, however, if someone requests a rule hearing. The clock also is stopped if someone requests a formal challenge to the proposed rule. Proposed rules cannot take effect if they have been challenged at the state Division of Administrative Hearings.

The medical boards agreed to develop a state-specific standard of care guidelines for the treatment of gender dysphoria in August. Though the board had not previously delved into the issue they agreed to do so at the behest of state Surgeon General Joseph Ladapo.

He petitioned the board to consider amending its standard-of-care rules to prohibit patients under the age of 18 from receiving sex-reassignment surgery and puberty-blocking hormone and hormone antagonist treatments. The proposal also would have the board change the standard of care rules to require older patients to sign a consent form and to wait 24 hours before starting such treatments.

While he has not been shy about pushing proposals through the Legislature that the LGBTQ+ community says target them, Gov. Ron DeSantis has been able to limit access to gender-affirming health care through his administrative power by having his health care agencies pass regulations addressing the issue.

Florida Medicaid, housed in the Agency for Health Care Administration (AHCA), banned reimbursement for general affirming care, a move that affects the poor, elderly and disabled who rely on the program. The ban was challenged in a Tallahassee federal court by the Southern Regional Office of Lambda Legal.

Meanwhile, by getting the medical boards, housed in the Florida Department of Health (DOH), to adopt state-specific standards-of-care the regulations would apply to all doctors providing health care and their patients, regardless of payer. The medical boards would have the authority to sanction doctors who violate the rules.

I welcome your feedback, questions and especially your tips. You can email me at [email protected] or call me at 850-251-2317.

— Cash Flow —

As a mandated $15 minimum wage requirement nears, calls for DeSantis to insert himself into a tussle between Medicaid managed care plans and the home- and community-based providers they contract with continues.

Home Care Association of Florida Executive Director Bobby Lolley sent a letter to DeSantis last week asking him to consider delaying the wage increase by a month in hopes that the Medicaid long-term care plans they contract with to provide health care services will have increased their payments. The Florida Assisted Living Association also sent a letter to the Governor’s office requesting DeSantis’ help.

Effective Oct. 1 the rates the state pays contracted Medicaid managed care long-term care plans should increase by 8.4%. Most of that rate increase is the result of a $136 million bump lawmakers included in the budget to raise the minimum wage paid to “direct caregivers” who treat the poor, elderly and disabled in Medicaid managed care plans.

Lolley said the association, which represents 2,200 home health care agencies, has been in regular contact with Medicaid officials about health plans not increasing home- and community-based providers’ reimbursements rates in time to coincide with the mandated pay increase.

In May, the association asked AHCA and Medicaid to begin working in advance in hopes of preventing a potential cash flow issue for its members.

“The minimum wage mandate will take effect in less than three weeks, and we have not yet heard from any provider who has had their contract amended by a health plan to cover the minimum wage requirement,” Lolley wrote in the letter.

The cash-flow problems among contracted home- and community-based providers was caused when lawmakers gave the managed care plans until Jan. 1, 2023, to pass the increased wages on to their contracted providers but required employers to begin paying direct care staff a $15 minimum wage Oct. 1.

Senate President Wilton Simpson championed the $15 minimum wage and in a prepared statement said his office is watching the implementation.

“I know AHCA is working diligently to ensure as smooth of an implementation as possible and my team will continue to closely monitor the implementation in advance of the Oct. 1 deadline,” Simpson said. He added, “we got to where we are today because the Legislature and Gov. DeSantis place great value on the contributions of those workers who care for our most vulnerable. We are going to see this across the finish line and make sure these workers get this important raise.”

— Walking Away? —

Ted Wolfendale is the administrator of Dial-A-Nurse, a home health care company that operates in Naples and Ft. Myers, and he has had a bumpy ride in trying to provide services to Medicaid.

His patients in Naples, Wolfendale told Florida Politics, are all private duty, private pay clients, but he does participate in the Medicaid managed long-term care program in Ft. Myers.

He says he also takes part in Community Care for the Elderly and Alzheimer’s Disease Initiative programs the state offers for low-income adults in need of care.

“I kept running it that way because my wife and my office manager of 15 years have hearts of gold and they take these very low-income challenging cases that the margins are teeny tiny, and they take them. And they have been doing it for years,” Wolfendale said.

Dial-A-Nurse has contracts with four Medicaid managed long-term care plans in the Ft. Myers area. He said he gave the 25 direct care workers in the Ft. Myers office pay raises in August to comply with the upcoming law. He then reached out to Humana to discuss increasing his rates. Wolfendale says Humana reimburses Dial A Nurse $17 an hour, $2 an hour more than what he now is paying the staff.

He operates a nurse registry in Ft. Myers, which means he uses contracted labor. But he says Dial-A-Nurse still has overhead costs associated with hiring direct care workers — turning on the lights in the offices, paying staff, and drug testing contract labor — which all cost money.

“You can’t operate on those margins,” he said, adding that he’d like to see the rates increased to $28 an hour, which is something he predicts won’t happen.

He bases that prediction, in part, on his experience in the summer of 2021 when he first reached out to Humana to discuss rates. He said he spent months corresponding with the Medicaid long-term care managed care plan, one time spending three hours on a phone only to be given an email address.

He said emails went unanswered. When he finally got the correct email for the person who could help him, he said his request for increased rates was denied.

Not wanting to relive his 2021 experience, Wolfendale waited about one month for the Medicaid managed long-term care plan to respond to his most recent request before sending an email to the company on Sept. 7. He says his wife, who helps run the business, got a phone call from Humana on Sept. 15 telling them to “hang in there.”

The Humana representative also told Dial-A-Nurse it couldn’t terminate the contract at the end of the month because the plan had to give 60 days advance notice.

The low reimbursement rates are at the heart of his contractual issues, but they aren’t the only problem. He claims the company does not provide names of people with whom he can interact. Humana has never given him the name of a patient’s case manager that he can directly call. He says Humana lets him know electronically when he gets a new patient.

Wolfendale said his staff can call case managers at other long-term care plans to discuss changes, if necessary.

“Now juxtapose that with Humana that doesn’t have case managers you can talk to. When you can’t talk to anybody who can do business with that?” he mused.

In a statement, Humana denied not providing contracted providers with names of its enrollees’ case managers or of people in the Humana administration to contact.

“Care coaches are available to consult by phone with providers, and providers have a dedicated Humana representative assigned to them should they need assistance,” the company said.

Wolfendale’s experience also belies what the company says are “very high provider satisfaction scores given our focus on our provider experience.”

For now, Wolfendale only plans to cancel his contract with Humana. Sunshine Health has not been in contact with him about rate increases either, but Wolfendale said the managed care plan reimburses better and communicates with him better, so he won’t move to make changes on that for now.

Wolfendale says other home-and-community-based providers are ending their managed care contracts with health plans, which will leave patients with fewer providers as demand for services is increasing.

“I have gotten calls from two caregivers at agencies that are no longer taking (Medicaid managed long-term care) because of the reimbursement rates. And they are asking me to take the cases on,” Wolfendale said. “If agencies and registries are no longer willing to take these cases it’s going to leave a void. And what are these poor elderly people going to do? What can they do?”

Humana added that it recognized the importance of services that enable people to age in place and that it is committed to providing fair and timely reimbursement to the providers that serve its members.

“We also take very seriously our commitment to our provider partners and our compliance with the terms of the state Medicaid contract,” the company said. “We fully understand that home health providers want to ensure they’re compensated for the minimum wage increase that takes effect this October. Humana will soon be communicating our plan for increased reimbursements for providers.”

— Bait and Switch —

In a stinging rebuke to the DOH, a Tallahassee appeals court reversed a 2018 decision by the state nursing board to revoke a registered nurse’s license and blasted regulators for “engaging in a game of bait and switch.”

The 1st District Court of Appeal on Wednesday ruled against the Board of Nursing in the case involving Kimberley McQueary’s license and remanded the case back to the board for reconsideration.

McQueary’s license had been revoked after the board learned it had been suspended in Louisiana in 2017 for violating patient confidentiality.

At the time, the applicable Board of Nursing disciplinary guideline for the offense was a “letter of concern” at the low end and the “same penalty as the penalty imposed in other jurisdictions” at the high end.

The Florida Board of Nursing also can sanction nurses for “unprofessional conduct,” which includes the violation of confidentiality of information or knowledge concerning a patient. The disciplinary guideline in effect at the time of McQueary’s actions was, on the low end, a reprimand, a $250 fine, and continuing education and on the high end a $500 fine and probation.

In 2020, the Board of Nursing changed the maximum penalty for unprofessional conduct regarding patient confidentiality to revocation.

McQueary challenged the Board of Nursing’s 2018 attempt to discipline her. It’s not clear what McQueary was charged with in the initial complaint.

But according to the ruling, an administrative law judge agreed to relinquish the case back to the Department of Health for an informal hearing after being advised by the department that there were no disputed issues of fact.

In an amended complaint against McQueary, the state cited a statute that allowed the Florida Board of Nursing to discipline nurses whose license to practice had been revoked, suspended, or otherwise acted against in another state or country.

The department then filed an amended complaint against McQueary asking the Board of Nursing to enter an order it deemed appropriate, but only after allowing McQueary to present oral and/or written evidence in mitigation of the complaint.

The department informed McQueary before the hearing that the facts alleged in the complaint were uncontested and that she could not challenge them at the informal hearing. According to court documents, McQueary was told she would be limited “to legal argument, if any, and to matters in mitigation or extenuation.”

The Department also sent McQueary a notice of the hearing explaining, in bold type, that she would have an “opportunity to address the Board, but attendance is not mandatory.”

McQueary did not attend the meeting and the Board of Nursing issued its final order permanently revoking her license to practice as a registered nurse. The final order cited her violation of a patient’s confidentiality rights in Louisiana as an aggravating factor.

McQueary, who represented herself in court, argued she was denied her due process rights because the state never informed her she was being charged with violating a patient’s confidential information.

The Tallahassee appellate court agreed.

“The Department provided no notice to (a)ppellant of its intent to seek revocation, and its communications had the effect of lulling her into complacency. More egregious than this, there was no mention in the amended complaint of an alleged violation … pertaining to ‘unprofessional conduct.’ In essence, though, the Board punished (McQueary) for this uncharged violation.”

Even had the court not agreed with McQueary, the judges noted that the Board of Nursing did not rely on the correct disciplinary guidelines for violating a patient’s confidentiality, which would, at the time, have only allowed the state to levy a $500 fine and probation as the maximum penalty.

“We set aside the Board’s revocation and remand for further proceedings, because the “fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” the ruling notes. “Put more simply, the Board failed to afford Appellant the process due to her — including proper notice — before depriving her of a property interest.”

— RULES —

The Board of Dentistry proposes amending Rule 64B5-14.007 on the demonstration of sedation technique. More here.

The Board of Dentistry proposes amending Rule 64B5-16.001 on the general supervision requirements of a licensed dentist. More here.

The Board of Medicine proposes to amend Rule 64B8-5.001 to clarify and update rule language on examinations to qualify for licensure. More here.

The Board of Osteopathic Medicine proposes amending Rule 64B15-15.004 to address when an osteopathic physician ends practice or moves and is no longer available to patients. More here.

The Board of Psychology proposes amending Rule 64B19-18.004 to allow for the administration of test instruments by licensed psychologists via synchronous online video communication technology rather than the traditional face-to-face requirement. More here.

The following Rules have been finalized and were sent to the Secretary of State this week:

59A-36.012 regarding food service in assisted living facilities, which takes effect Oct. 4.

64B1-7.0015 regarding continuing education requirements for acupuncture, which takes effect Oct. 4.

— ETC —

— As Suicide Prevention Month continues, the state’s largest Medicaid plan, Sunshine Health, is highlighting steps it’s taking to help abate suicide. Sunshine Health announced in a news release that it launched a predictive risk model, Choose Tomorrow, to identify at-risk individuals enrolled in the Child Welfare Specialty Plans and offer evidence-based suicide prevention interventions. A collaborative effort between Sunshine Health and Zero Suicide, the Choose Tomorrow framework equips trained staff to offer evidence-based interventions vetted by suicide prevention experts with demonstrated clinical efficacy. Sunshine also has been known for its work with behavioral health groups and is a longtime sponsor of the Florida Behavioral Health Association (FBHA) annual conference and this year helped sponsor the 2022 NAMI Florida Annual Conference. Sunshine Health also promotes the availability of the National 988 Suicide & Crisis Lifeline.

“Sunshine Health is committed to helping people experiencing a behavioral health crisis year-round, because one life lost is too many,” Nathan Landsbaum, Sunshine Health CEO, said in a statement. “Mental health is a key component of physical health.”

— The Florida Medical Association joined medical organizations from across the nation in promoting National Physician Suicide Awareness Day.

— AHCA approved certificate of need (CON) applications to transfer four nursing home licenses across the state. More here.

— LOBBYING —

Registrations and withdrawals — Week of Sept. 14-22

Lisa Rawlins registered to lobby for Cognoa Inc.

Brennan Garcia registered to lobby for New Relic and Tanium Inc. and ZScaler Inc.

Charles P Smith registered to lobby for the Department of Health.

Travis Blanton, Jon Johnson and Eric Prutsman registered to lobby for District One Medical Examiners Support.

Tim Stapleton registered to lobby for the Florida Society of Anesthesiologists.

Ashley Ellis Spicola has registered to lobby for Chrysalis Health, Jackson Health System, and the Safety Net Hospital Alliance of Florida.

Michael W. Garner has registered to lobby for Pear Therapeutics.

Roger Nolan Beaubien has registered to lobby for MorseLife.

— ROSTER —

— Ryan Dahlgren, MD, has joined Cleveland Clinic Indian River Hospital as medical director of Neuro Endovascular Surgery. Before joining Cleveland Clinic Indian River Hospital, Dr. Dahlgren was at Mount Sinai Medical Center in Miami Beach.

— The DOH awarded Dr. Colby Redfield, director of Century Ambulance in Taylor and Columbia counties, with the Raymond H. Alexander EMS Medical Direction Award.

— Scott Welford, Ph.D., will co-lead the Tumor Biology Research Program at Sylvester Comprehensive Cancer Center at the University of Miami Miller School of Medicine with Wael El-Rifai, M.D., Ph.D.

— ICYMI —

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

— Long time coming is an understatement: Terry Gwinn was part of a group of Black farmers who sued the U.S. Department of Agriculture over racial discrimination in allotting farm loans in the 1980s and 1990s. This week, he became the first Black-owned business to receive its license to grow and sell cannabis for medicinal use.

— Another option?: Attorneys for the Florida Association of Behavior Analysis sent a letter to Agency for Health Care Administration (AHCA) Secretary Simone Marstiller asking her to amend a proposed regulation that providers attest will cost more than $1 million in the first year to implement and will cause a delay in services. If the agency doesn’t offer an alternative to the rule, the agency must develop a statement of estimated regulated costs (SERC) and to enumerate why it’s standing by the proposal.

— Won’t back down: Agriculture Commissioner Nikki Fried announced the launch of Won’t Back Down, a new political committee focused on getting a constitutional amendment protecting abortion rights on the ballot in 2024. “Florida is in trouble. I’m the only Democrat to win statewide here since 2012, and it shows,” Fried said. Details on the new political committee are sparse. So far, it has reported no fundraising. It lists a South Miami address on the Division of Elections and Treasurer Gloria Maggiolo, who also runs the political committee Fried has used since 2018, Florida Consumers First.

To watch the announcement, please click on the image below:

— Send a letter: U.S. Sen. Rick Scott joined a letter led by Sen. Roger Marshall of Kansas pushing the U.S. Food and Drug Administration (FDA) to allow more vendors to operate in the American baby formula sphere. The push notes that in-stock rates of formula are back above 80%, after a low of 69% in July, suggesting the supply crunch may be largely over.

— Tampa General gets kudos: Lt. Gov. Jeanette Nuñez presented TGH with an award recognizing its continuing efforts to reduce the number of unnecessary caesarean (C-section) deliveries and promote safe vaginal deliveries. The Lt. Gov. was joined by Florida’s Surgeon General and officials from the state Agency for Health Care Administration and the Florida Department of Health. “Exceeding national goals for reducing unnecessary C-sections for two straight years is a tremendous recognition for all of those working with the Women and Children’s Institute at Tampa General,” said John Couris, president and CEO of TGH. “We are honored to receive this award from Lt. Gov. Nuñez and Surgeon General Ladapo as we continue on our journey to provide the safest and highest quality care in the country to mothers and their babies.”

— FOR YOUR RADAR —

In addition to Florida Politics coverage, these stories are worth your time:

—“Shalala, UHealth exec she fired square off in trial over bitter academic ‘soap opera,’” via Jay Weaver of the Miami Herald: An academic “soap opera” is unfolding in Miami federal court this week with a plot revolving around turf wars and a blame game between University of Miami President Donna Shalala and a top medical school executive who was hired and then quickly fired nearly a decade ago. The UM medical school’s former chief operating officer, Jack Lord, who is seeking millions in damages, testified Tuesday at a wrongful termination trial that Shalala treated him in a “crappy way” when she fired him. Shalala, the prominent former university leader and ex-Miami Congresswoman, countered in her testimony Wednesday that Lord was a “destructive” force akin to a “bull in a china shop.”

—“New ALS drug funded by Ice Bucket Challenge already in use in South Florida trials” via Cindy Krischer Goodman of the South Florida Sun-Sentinel: While the country awaits federal approval of a new ALS drug, people in South Florida with the disease are already using it. The experimental drug called AMX0035 will be considered by the U.S. Food and Drug Administration on Sept. 29. and, if approved, would give patients with the degenerative disease hope for slowing the progression. At Holy Cross Health and NSU Health Neuroscience Institute, ALS specialists began enrolling participants in a major clinical trial for the drug for amyotrophic lateral sclerosis in July. The medication is free for those in the trial, and doctors monitor patient responses.

—“COVID-19 numbers looking much better for Florida hospitals, case counts and positive tests” via Chris Persaud of the Palm Beach Post: Most signs once again point to the latest COVID-19 wave receding across Florida, a week after big urban areas showed signs of a potential spike in infections. New case counts, hospitalizations, tests that came back positive and sewage readings show declines in the coronavirus statewide, for the most part, to levels not seen since May, before the worst of the current COVID-19 wave. Health officials logged about 23,000 new infections in the past week across Florida, the U.S. Centers for Disease Control and Prevention reported Friday, down two-thirds from weekly sums logged during the worst of the summer wave in June and July.

—“Florida infant recovers after catching monkeypox, CDC says” via Caroline Catherman of the Orlando Sentinel: A Florida infant has recovered after catching monkeypox in August, a new Centers for Disease Control and Prevention report said. The infant was admitted to an unnamed Florida hospital with a rash and cellulitis, according to the report. Rashes and lesions spread throughout their body, including their arms, legs, soles of their feet, face, and eyelids.

—“UF Health researcher co-leading landmark study on autism’s role in aging” via Doug Bennett of UF Health News: While the number of adults affected by autism is growing, very little is known about the way the condition is affected by aging. Now, a University of Florida Health researcher and his colleagues are launching one of the largest and most comprehensive studies of what happens to autistic adults as they grow older. The study aims to better understand the brain and cognitive changes that occur in people with autism. The researchers expect their findings will ultimately help other scientists and doctors pursue answers to even bigger questions: Is aging accelerated in people with autism? If so, how and why does that happen and what can be done to optimize health in people living with autism?

— PENCIL IT IN —

Sunday

Happy birthday Rep. Michele Rayner-Goolsby

Monday

2 p.m. — AHCA will hold a meeting on proposed Rules 59G-13.070 and 59G-13.081 on Developmental Disabilities Individual Budgeting Waiver Services. AHCA 2727 Mahan Dr., Tallahassee. People can also register for the meeting here.

Wednesday

8 a.m. — The Board of Psychology meets. Call 1(888) 585-9008; participant code 564341766.