Diagnosis for 5.8.24: 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.

An appeals court panel — in particular one judge — is sharply questioning the authority of Attorney General Ashley Moody in a case involving the state’s $3.1 billion settlement with opioid manufacturers and distributors.

Moody’s office sought to block several hospital districts, including Halifax Health and Broward Health, as well as the Miami-Dade School Board, from pursuing their own lawsuits against those involved in the opioid crisis even though those school boards and districts were not part of the settlement reached by the state.

A circuit court judge sided with Moody last year and said the Attorney General had the power to enter into settlements that overrode lawsuits pursued by other governments in the state. But judges with the 1st District Court of Appeals had sharp questions for Moody’s office which suggested they were uncomfortable with the assertions made by the state’s chief legal officer.

During the lengthy hearing, Judge Brad Thomas asked whether under the power asserted by Moody that a future Attorney General could sue every cattle rancher in the state over climate change — over the objections of a Governor and the Legislature — and a rural county would be powerless to stop it.

“There doesn’t seem to be a real limit to the power of her ability to file suit on behalf of the state of Florida,” Thomas said.

Lawyers representing the hospital districts and school boards contended that Moody’s actions misread past rulings and the authority granted the Attorney General by the Legislature. Well-known attorney Barry Richard represented Halifax Health, while Joe Jacquot, who once worked as general counsel for Gov. Ron DeSantis, represented Miami-Dade schools.

David Costello, Moody’s deputy solicitor general, countered that the Attorney General has broad and flexible power to initiate litigation on behalf of the state.

“Sometimes the state has to speak with one voice when it comes to its litigation power, but the state has placed its power in the hands of the Attorney General,” Costello told judges.

When asked by Thomas about the hypothetical cattle rancher lawsuit, Costello did not dispute it could happen. Instead, he said there were checks on the Attorney General, such as the Legislature, which could pass a law prohibiting it, and voters, who could boot the Attorney General from office.

“If she abuses her power she has to face voters at the polls,” Costello argued.

Costello said the outcome of the case could impact the overall opioid settlement payout, depending on whether the districts and school boards are able to win their own judgments against drug manufacturers and distributors.

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— Legal tussle gears up —

A federal trial kicks off Monday in an ongoing lawsuit challenging how the state removed people from Medicaid as part of its “unwinding” process.

The lawsuit, filed by several people who have been part of the Medicaid program against the top officials overseeing the program, centers on whether the administration properly notified enrollees about their termination from the safety-net health care program.

During COVID-19, the federal government increased funding to states for Medicaid but mandated that the states could not remove people from the program while the federal state of emergency was in effect. Congress authorized states to resume eligibility checks in spring 2023. Since then, Florida has seen its Medicaid rolls go from 5.77 million people to 4.67 million as of March.

The lawsuit was filed in August and those who sued want U.S. District Judge Marcia Morales Howard, who was appointed by President George W. Bush, to find that the state’s notices violated federal law and due process rights. The lawsuit also seeks to prevent Florida from using its current notice process and reinstate the people who were removed from Medicaid until a new, more detailed process is put in place.

Lawyers for the Department of Children and Families and the Agency for Health Care Administration maintain that the way the state handled Medicaid enrollees was “permissible” and the notices were a “reasonable means of communicating.” They also added that “the question for this court is not whether the notices can be improved, but whether they satisfy the baseline requirements of due process and Medicaid regulations. The state’s notices clear these minimum legal thresholds.”

Witness lists filed in court show that attorneys for the state plan to call employees and managers for both DCF and AHCA, including an assistant secretary for health care data and a DCF director for call services.

Meanwhile, there’s still no ruling in a second legal battle over children’s health care and Medicaid. Florida is challenging a new requirement that children must remain continuously enrolled for up to 12 months even if they cannot pay the monthly premiums. Federal authorities contend that the requirement was enacted by Congress, but the DeSantis administration asserts that the Centers for Medicare and Medicaid Services is incorrect.

—Times’ a ticking —

The Governor has until Friday to act on HB 1561, the Legislature’s latest attempt to crack down on gluteal fat grafting, commonly called Brazilian butt lifts, or BBLs.

BBLs involve two steps: the liposuction of fat from the abdomen or back, and the injection of the purified fat into the subcutaneous layer of the buttocks, which is below the skin but above the gluteal muscle.

HB 1561 closes what some called a “loophole” in the law that required office surgery sites to register with the state if they performed procedures involving 1,000 cubic centimeters of fat removal. Some BBL providers argued that the fat was being relocated, not removed, and therefore, they weren’t required to register.

HB 1561 closes the loophole by requiring offices to register whether the fat is temporarily or permanently removed.

It also contains a financial responsibility mandate which is a leviathan policy change.

The bill requires physician offices in which gluteal fat grafting procedures are performed to establish financial responsibility by either obtaining and maintaining professional liability coverage of at least $250,000 per claim, with a minimum annual aggregate of at least $750,000 from an authorized insurer, surplus lines insurer, risk retention group, joint underwriting association, or self-insurance plan; or obtaining and maintaining an unexpired, irrevocable letter of credit of at least $250,000 per claim, with a maximum aggregate credit availability of at least $750,000.

Meanwhile, the time is not ticking for SB 1600, which hasn’t yet been sent to the Governor.

Members of the Florida Board of Medicine expressed concerns because the bill repeals existing law authorizing the BOM to approve licensure applications by endorsement. It would create a new law that gives the state 15 days to approve by endorsement licenses for certain out-of-state applicants and, some members of the BOM worry, block nearly all others from getting licensed by endorsement.

That’s because the legislation specifically precludes physicians who have a complaint, an allegation or an investigation pending before a licensing entity in another state or territory; has been convicted of or pleaded nolo contendere to, regardless of adjudication, any felony or misdemeanor related to the practice of a health care profession; has had a health care provider license revoked or suspended by another state; has voluntarily surrendered any license in lieu of having disciplinary action taken against the license; or has been reported to the National Practitioner Data Bank, which includes medical malpractice settlements.

— No mask = problems? —

Health care regulators were told this week that a proposed Agency for Health Care Administration rule on the appropriate use of facial coverings for infection control eviscerates providers’ ability to control infections.

The proposed rule, 59A-35, implements SB 252, which was passed in the 2023 Legislative Session.

Those proposed rules essentially exclude hospitals, long-term care facilities and doctor offices from requiring patients, visitors and certain staff from wearing facial coverings. Advent Health Vice President of Regulatory Advocacy for AdventHealth Corporate Diane Godfried testified that bone marrow transplant patients often are hospitalized for months. AdventHealth wants the rule to be amended so that it can better control infections in patients’ rooms, not in the entirety of the unit, which do have areas where patients and guests mingle.

Florida Senior Living Association Vice President of Public Policy and Legal Affairs Jason Hand said the language in the proposed rule regarding opt outs references the Florida Patient Bill of Rights and Responsibilities, which does not apply to assisted living facilities he said. It applies to hospitals and health care providers, including medical doctors, osteopathic physicians, podiatrists, and certain advanced practice registered nurses.

Hand suggested that AHCA change the proposed regulation to reference the statutory rights ALF residents have.

This is not the first meeting AHCA held on the proposed new regulations. At least 29 people attended a September meeting on the proposed regulation last fall.

AHCA issued emergency rules last year to implement SB 252, which prevented the sunset of many prohibitions the Legislature passed banning COVID-19 vaccination mandates and mask mandates in schools.

Hospitals and health care providers that violate the new law are subject to disciplinary action from AHCA or regulatory boards, such as the Board of Medicine or the Board of Osteopathic Medicine.

AHCA is accepting comments on the proposed regulation through 5 p.m. Friday. Comments should be sent to [email protected].

— Long-term care collaboration —

Two Florida long-term care associations announced a partnership called “Caring Together.”

The Florida Health Care Association and the Florida Assisted Living Association, which account for more than 100 years of combined experience and represent 1,200 long-term care providers, announced the collaborative effort on initiatives to strengthen the long-term care workforce and improve the coordination of high-quality care.

“The FHCA and FALA will also work together to educate consumers, policymakers, and other stakeholders about the important role of both skilled nursing and assisted living providers in the continuum of long-term care for Florida seniors and their families,” the groups said in a news release.

While they are combining their efforts on many fronts, FHCA Senior Director of Strategy & Communications Kristen Knapp said the groups will maintain their separate identities.

The announcement comes after another successful Session for FHCA, which secured double digit Medicaid increases for their members.

“For 70 years, FHCA has focused on initiatives that promote high-quality care and quality of life for Florida’s elders. Partnering with FALA will allow us to further extend and elevate Florida’s long-term care delivery system, making an impact on a greater scale,” FHCA Chief Executive Officer Emmett Reed said in a statement.

“For assisted living facilities, community connections and partnerships play an important role in delivering on the promise of providing high-quality care to residents,” said FALA CEO Bijou Ikli. “We’re excited to partner with FHCA to ensure that Floridians have the best choices and quality services in long-term care so they may live and age with dignity.”

FHCA president Anita Faulmann said, “Florida’s aging population expects the gold standard when it comes to long-term care. We’re excited about this collaboration, which will allow each of our members to do more together to meet our residents’ unique needs as they change across the continuum of care.”

Donna Damiani, chair of the Florida Assisted Living Association, said the “marks a significant step forward in enhancing our resources and strengthening our ability to support and advocate for the needs of our facility members and for Florida’s frail, elderly and disabled citizens.

— RULES —

—The Board of Nursing Home Administrators proposes amending Rule 64B10-12.0001 to update fees. More here.

—The Board of Nursing Home Administrators proposes amending Rule 664B10-14.00 regarding probable cause determination. More here.

—The Division of Disease Control proposes Rule 64D-3.051 for the appropriate use of facial coverings by health care practitioners and health care providers. More here.

— LOBBYISTS —

— Danielle R. Spinks: CVS Health

— Kenneth E. Granger, Joseph Mongiovi, Capital City Consulting: Hello Heart

— ETC —

— AHCA accepted two additional letters of intent for nursing homes during the certificate of need “grace period.” Additional applications were filed by De Luna Operating Investments, which operates as De Luna Health and Rehabilitation Center, and Palm Gardens Operator. The former wants to establish a new 60-bed community nursing home in Escambia County and the latter wants a new 90-bed nursing home in Palm Beach County. The CON filing deadline is May 15.

— Dallas-based Steward Health Care, which operates eight Florida facilities, filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Texas. Steward operates Coral Gables Hospital, Hialeah Hospital, North Shore Medical Center and Palmetto General Hospital in Miami-Dade County; Florida Medical Center in Broward County; Melbourne Regional Medical Center and Rockledge Regional Medical Center in Brevard County; and Sebastian River Medical Center in Indian River County. Steward, in 2021, acquired the Miami-Dade and Broward hospitals from Tenet Healthcare Corp.

— ROSTER —

—Keith Dean is the new Executive Director of Floridians for Affordable Healthcare, an organization that educates and empowers Floridians to address pressing health care challenges in the state. FAH is a nonprofit, nonpartisan organization that works to raise awareness of health care issues that drive up the cost of care for Florida families and businesses. The group uses education and advocacy to press for accessible and affordable care for all Floridians

— ICYMI —

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

—“Florida poised to start new crackdown on massage centers, therapists” via Christine Jordan Sexton of Florida Politics — New regulations for massage clinics that legislators hope will crack down on human trafficking and prostitution are slated to take effect July 1. The new measure (HB 197) — which Gov. Ron DeSantis signed this week — requires the state to suspend the licenses of massage therapists and massage establishments if any employee of a massage therapist or establishment is arrested for any of spate of offenses, including having sex with minors, prostitution, kidnapping or false imprisonment.

—”Gov. DeSantis administration issues a pair of emergency rules in wake of new abortion law” via Christine Jordan Sexton of Florida Politics — State health regulators are pushing ahead with emergency rules they contend are needed to respond to “disinformation” that has come in the wake of Florida’s new ban on abortions after six weeks. The Agency for Health Care Administration (AHCA) released a pair of emergency rules making it clear that certain medical procedures — including the treatment of an ectopic pregnancy — are not considered abortions and do not need to be recorded as such. The rules apply to hospitals as well as abortion clinics and medical facilities.

—”Victor Torres treated after cardiac episode at Maxwell Frost event” via Jacob Ogles of Florida Politics — Sen. Torres is recovering after collapsing and requiring medical attention at U.S. Rep. Maxwell Frost’s re-election campaign launch

— FOR YOUR RADAR —

Aside from coverage by Florida Politics, these stories are worth your time.

“Another killing, another cover-up. Patients remain at risk at Florida mental hospitals” via Carol Marbin Miller of the Miami Herald — It was Northeast Florida State Hospital’s job to protect Warren Barrett, who had been committed to the state’s care following several failed suicide attempts. But Barrett’s roommate, Mark Stone, who had a long, frightening history of violence, was able to accomplish what Barrett had repeatedly failed to do himself. He killed him. Barrett, who was 72, became another casualty of the Florida Legislature’s long-standing decision to ration care at psychiatric facilities for patients like Stone. Chronically underfunded, Florida’s system of care has left hundreds of state psychiatric patients in danger. And when violence followed, mental health administrators often cleaned up the mess, failed to report it quickly to law enforcement — and often looked the other way.

“‘Kind of a crisis’: Florida STD rates surpass pre-pandemic levels” via Christopher O’Donnell of the Tampa Bay Times — The pandemic did what public health officials have struggled to do for the past 15 years — put a dent in the number of reported cases of bacterial sexually transmitted diseases in Florida. But in just two years, the combined rate of chlamydia, gonorrhea and syphilis has rebounded and surpassed pre-pandemic levels. Florida recorded 762 cases per 100,000 residents of the STDs in 2022, the most recent data available.

“Jacksonville hospitals fare well in Leapfrog ratings” via Stuart Korfhage of the Jacksonville Business Journal — Jacksonville was among the 25 metro areas with the highest percentage of A-rated hospitals in the 2024 Hospital Safety Grades report. The grades were issued by The Leapfrog Group, an independent national nonprofit that tracks patient safety. According to the latest report, the area had eight hospitals that were rated A. Among the local hospitals to receive a top grade were Baptist Medical Center, Baptist Medical Center Beaches, Baptist Medical Center Nassau and Baptist Medical Center South. “We’re immensely proud of our teams for setting a high standard for safe, efficient and effective care,” said Michael Mayo, president and CEO of Baptist Health.

— PENCIL IT IN —

Friday

9 a.m. — The DOH Public Swimming Pool Advisory Board will review, discuss and make recommendations to the Department regarding applications submitted for variance from the state’s public swimming pool codes. Call (888) 585-9008; participant code: 754-420-028. Email [email protected] or call Jutta Tolbert at (850) 901-6499 for a copy of the agenda.

Tuesday

9 a.m. — The Division of Health Community Health Promotion, Bureau of Tobacco Free Florida meets. 4052 Bald Cypress Way, Room 301, Tallahassee 32399, email [email protected] for a copy of the agenda or call(850) 617-1945.

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Diagnosis is written by Christine Jordan Sexton and edited by Drew Wilson.