Welcome back to Diagnosis, a vertical that focuses on the crossroads of health care policy and politics.
Florida’s foray into a post-Roe world will have taken its first steps Monday when a circuit judge holds a hearing on whether to block the state’s recently enacted ban on abortions after 15 weeks.
The measure signed into law by Gov. Ron DeSantis is scheduled to take effect Friday — exactly one week after the U.S. Supreme Court struck down the 50-year-old ruling that had allowed abortion to be legal nationwide.
However, the case before Circuit Judge John Cooper isn’t predicated on that federal ruling. Instead, those challenging the new state law, including Planned Parenthood chapters and several abortion clinics, are basing the lawsuit on Florida’s right to privacy clause enacted by voters.
In a landmark 1989 case, the state Supreme Court concluded that privacy rights extend to abortion restrictions.
Lawyers for the state contend that the injunction should not be granted for several reasons, including that those suing lack standing to bring the lawsuit. The state also disputes whether there will be any “irreparable harm” to the clinics and others challenging the law. One other notable declaration: The state asserts that since most abortions in the state already take place before the 15-week cutoff that “HB 5 will have no effect at all, much less cause a “significant restriction.’”
In a response filed this past Friday, attorneys for the abortion clinics say that the state continues to ignore past Supreme Court rulings that the state constitution contains a “fundamental right” to terminate a pregnancy before viability without government interference. They stated that the argument that many people can continue to get abortions “defies common sense and decades of Florida Supreme Court precedent. They say a ban on abortions after five weeks would be valid under that logic. “Plainly, that is now the law,” states the brief.
Whatever happens in Cooper’s court will just be the opening round in a legal battle that will (ultimately) wind up before a state Supreme Court, which DeSantis has overhauled.
Diagnosis won’t be published next week, but it will return July 11. Have a happy and safe 4th of July.
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— State wins CON rule challenge —
The state did not overstep its authority this spring when it proposed changing how regulators determine whether there is a need for new hospice programs.
Moreover, Division of Administrative Hearings Officer Lawrence P. Stevenson concluded that the move by regulators to limit the industry’s ability to challenge the projected “need” for new hospice programs to instances of state-made mathematical or data input errors was not arbitrary or capricious.
In doing so, the proposed rule amendments would preclude hospices from challenging the need calculations based on erroneous census information reported to the state. The industry argued that bad data could result in finding a new need for services where none exist.
For its part, the state Agency for Health Care Administration argued that it wanted to bring finality to the need determination process and prevent hospices from manipulating the data they submit to avoid increased competition.
“All involved parties do their best to provide the most accurate data possible, but AHCA has recognized that a perpetual chase after perfectly “correct” numbers can lead to diminishing returns and wasted effort, if not chicanery,” Stevenson wrote in a 40-page opinion. “At some point, a line must be drawn under one batching cycle so that all concerned may move on to the next.”
In 2019, the Florida Legislature eliminated most hospital projects from certificate of need review. But the state still relies on the licensure program for new nursing homes, hospice, and intermediate care facilities for the developmentally disabled.
To that end, AHCA reviews whether there is a need for new services twice a year and publishes the projected demand. In determining whether new hospice services are needed, the agency examines whether the actual number of hospice patients in the 27 different planning areas across the state is keeping pace with the statewide proportion of patients who choose to use hospice services.
If the number of expected patients in a service area exceeds the statewide proportion of patients by 350, there is a “need” for a new program.
In making those calculations, AHCA relies on utilization report data submitted by the industry to the state twice a year. The reports track patient admissions, among other things.
The final order notes that during a two-day hearing, testimony “established that it is not uncommon for a hospice to discover an error in its reported admissions after the fixed need pool has been published” and that hospices submit corrected reports notifying AHCA of the mistake.
AHCA testified in administrative court that there was no way for it to “substantively review the accuracy of a hospice’s submitted data.” The agency also argued that it had “no recourse under the current rule but to accept an amended report” and to “recalculate and republish the fixed need pool if the amended report would alter the determination of need in any service area.”
The industry argued that the proposed changes would upend a process that for 30 years has worked well for the state and the industry. And Stevenson noted in his order that James McLemore, Unit Manager of AHCA’s CON Unit, “did not appear completely persuaded of the wisdom” behind the proposed changes.
“Nonetheless, the undersigned does not find that the proposed amendments are arbitrary or capricious. AHCA is fully aware that its proposed amendments bear the possibility of incorporating incorrect information into its fixed need pool projections. AHCA has articulated a rational basis for the amendments,” Stevenson wrote. “ In practice, the negative possibilities cited by Petitioners may come to pass and outweigh the benefits anticipated by AHCA. However, (the law) includes no prohibition on an agency’s making a mistake. “
The final order in the case came as AHCA announced decisions on the latest round of CON applications for hospice programs.
— CON transfers, delays and increased costs —
It’s been three years since the state first approved a certificate of need application for a new 61,000-plus square foot, 67-bed nursing home in Hillsborough County slated to begin offering service in May 2021. Since then, the coveted CON has been transferred (with state approval) twice, the costs of the facility have soared by more than $2 million, and the opening date has been pushed back by three years.
A review of CON applications shows the transfers have been among entities affiliated with Briar Hill Management, LLC, a Mississippi-based health-care-services management company that manages six Mississippi skilled nursing facilities.
AHCA published a notice last week that it had approved an expedited CON application requesting approval of the transfer of CON # 10641 from Sabal Palm Health and Rehab Center, LLC to Riverview Nursing and Rehab Center, LLC. According to the application, the project will cost $18,525,822 and will offer services beginning May 2024.
Sabal Palm was in possession of the CON after the state had approved an expedited CON application they submitted in 2020. That application requested that the state transfer CON #10552 from Hillsborough County Nursing and Rehab Center to Sabal Palm. The projected costs for Sabal Palm to build the 61,084 square foot facility with 67 beds at the time was $16,406,085. Sabal Palm had anticipated completing construction on the building and offering services by January 2023.
When Hillsborough County Nursing and Rehab Center, LLC submitted CON application 10552 in 2019, the plan was to build a facility with 73 private rooms at a total project cost of $16,396,085. The original CON application shows that Hillsborough County Nursing and Rehab Center wanted to be operational by May 2021.
— Looking for volunteers —
AHCA is looking for volunteers to serve on its various Medicaid Medical Care Advisory Subcommittees. As the state begins working on its Medicaid managed care procurement, the agency has reconvened the subcommittees to solicit advice on improving the program. (A list of the subcommittees and email contacts follows)
While members of the Medicaid Managed Long-Term Care subcommittee were provided with a recent snapshot of the state’s long-term care program and were given data that shows the number of complaints against the state’s managed care plans was increasing. Members of two other Medicaid Medical Care Advisory subcommittees weren’t provided with any data about the program areas or much of anything else.
The Subcommittee on Behavioral Health/Substance Use and the Subcommittee for Children, Including Foster Care, held perfunctory meetings that lasted less than 15 minutes.
During a recent meeting, members of the Subcommittee for Dental Care for Children pressed AHCA for information about the state’s dental care efforts. Members asked AHCA to provide them with information about a dental program for people with developmental disabilities, which lawmakers agreed to increase funding for in the FY 2022-2023 budget. Members also asked AHCA to provide information showing how many primary care providers look into their patients’ mouths as part of an overall wellness checkup.
The Medicaid Medical Care Advisory Committee Subcommittee for HIV/AIDS hasn’t met yet, but it is scheduled to meet Thursday.
Meanwhile, here are the names of the subcommittees and the lead agency staff for each committee.
Medicaid Medical Care Advisory Committee Subcommittee for Managed Long-Term Care; Paula. [email protected]
Medicaid Medical Care Advisory Committee Subcommittee for Behavioral Health/Substance Use; [email protected].
Medicaid Medical Care Advisory Committee Subcommittee for Children, Including Foster Care; [email protected]
Medicaid Medical Care Advisory Committee Subcommittee for Dental Care for Children; [email protected]
Medicaid Medical Care Advisory Committee Subcommittee for HIV/AIDS; [email protected]
— Record-setting budget takes effect —
Florida’s nearly $110 billion budget for the upcoming fiscal year takes effect this week, as do several new health care laws.
The final budget was pared down substantially after the Governor vetoed more than $3 billion in spending, including money for Moffitt Cancer Center and a program that would provide long-acting reversible contraception to low-income women.
But many major health spending initiatives made it intact into the 2022-23 budget, including increased spending on cancer research, Alzheimer’s care, and an overhaul of the system used to process Medicaid claims and payments.
Nearly $50 billion in the budget is slated for Florida’s health-care-related agencies, including the Agency for Health Care Administration — which administers the Medicaid program — and the Department of Health.
The health care portion of the budget includes roughly $1 billion designed to bring up the salaries of those working for Medicaid providers, including those in nursing homes and those working for providers that offer services to Florida’s disabled residents.
Among the new health care laws also taking effect July 1: A ban on all abortions after 15 weeks (HB 5), a compromise measure allowing telehealth for the prescription of controlled substances (SB 312), new requirements for substance abuse service providers (SB 704) and changes to the state group health insurance program (HB 5009).
The state health-insurance program legislation repeals the overhaul Florida legislators passed in 2017 but delayed implementation after questions arose about its ultimate cost. This year’s bill also creates a pathway for departing state workers to remain enrolled in state insurance (albeit at a higher premium cost), and it also directs the Department of Management Services to create a unit to investigate potential fraud in the state group insurance program.
— RULES —
AHCA proposed amending Rule 59A-36.015 to update record-keeping requirements and delete obsolete language. More here.
The Department of Health proposes amending Rules 64D-4.002 and 64D-4.003 to update the federal poverty level guidelines and the county income limits, which determine eligibility for HIV/AIDS patient care programs. More here.
The Board of Dentistry announces changes to its proposed amendments to Rule 64B5-13.005 regarding disciplinary guidelines. More here.
The Board of Osteopathic Medicine proposes amendments to Rules 64B15-12.003; 64B15-12.005, 64B15-12.009, 64B15-12.010,64B15-12.011 regarding applications for licensure, limited licensure, osteopathic faculty certificates, temporary certificates to practice in areas of critical need and temporary certificates for active-duty military and veterans practicing in areas of critical care, respectively. More here.
The Board of Osteopathic Medicine proposes amending Rules 64B15-14.0076 and 64B15-14.0077 to add the American Accreditation Commission International as an approved accrediting organization. More here.
The Board of Osteopathic Medicine proposes amending Rule 64B15-22.004 to incorporate a revised application form. More here.
The Board of Medicine proposes developing an amendment to Rule 64B8-9.0092 regarding physician office accrediting organizations. More here.
The Board of Medicine announces changes to its proposed amendment to Rule 64B8-9.012 regarding prescribing the standards of care for the prescribing of obesity drugs. More here.
— ROSTER —
The Department of Transportation has approved HCA Florida University Hospital’s application for a helistop. More here.
Scott Wester has been named the new president and chief executive officer for Memorial Healthcare System. He recently served as executive vice president of Strategic Partnerships and Advocacy for Franciscan Missionaries of Our Lady Health System in Baton Rouge, Louisiana, Wester begins his new position at the Broward County hospital system July 5.
Board-certified oncologists Doron Feinsilber, M.D., and Syed Mujtaba Rizvi, M.D., have joined the Cleveland Clinic Weston.
The Governor appointed three attorneys to serve as Judges of Compensation Claims: Jill Jacobs, Lourdes Sancerni and Barbara Case. Jacobs and Sancerni were picked for the Orlando office Case for the West Palm Beach office. Jacobs has worked as a Deputy City Attorney for the City of Palm Beach since 2015. She earned her bachelor’s degree from Rutgers University and her law degree from the University of Miami. Sancerni has worked as a senior associate attorney at the law firm Moore, Ingram, Johnson & Steele since 2013. She received her bachelor’s degree from Florida International University and her law degree from the University of Florida. Case has worked in private practice for 13 years and launched her The Law Office of Barbara Kay Case in 2013. She received her bachelor’s degree from the University of South Florida and her law degree from St. Thomas University.
— ICYMI —
In case you missed them, here is a recap of other critical health care policy stories covered in Florida Politics this past week.
— You win some, you lose some: On Monday, AHCA approved certificate of need applications for two new hospice programs and rejected applications for three others. The decisions are tentative and can — and probably will — be challenged in state administrative court.
— DeSantis says no to hospital conversion plan: DeSantis on Friday vetoed a bill that would have set up a process for independent hospital districts to convert into private nonprofit entities. Fort Myers-based Lee Memorial Health Systems was the driving force behind SB 1260, sponsored by Sarasota Republican Sen. Joe Gruters.
— Alzheimer’s awareness: DeSantis on Thursday hailed continued increases in state spending on Alzheimer’s research while also signing a measure that calls on the Department of Health to educate health care providers on the warning signs of Alzheimer’s and dementia. DeSantis signed SB 806 at a ceremony held at Broward Health Sports Medicine in Fort Lauderdale, where he was joined by local officials and the CEO of a medical device company pushing ahead with a type of noninvasive brain treatment.
— Brazilian Butt Lift challenge: A coalition of plastic surgeons launched an organization Wednesday to educate the public and push “common-sense measures” for gluteal fat grafting transfers — a procedure commonly known as a “Brazilian butt lift. Surgeons for Safety, composed of board-certified plastic surgeons, was formed shortly after the Florida Board of Medicine approved an emergency order introducing new regulations on the procedure, which has become increasingly common in recent years.
— Putting teeth into the law: Pharmacy benefit managers (PBMs) that don’t register with the Office of Insurance Regulation (OIR) could get hit with a $10,000 fine under a new law that takes effect July 1. HB 357 passed the Legislature unanimously and was sponsored by Tampa Republican Rep. Jackie Toledo. PBMs are responsible for managing the pharmacy benefits of about 270 million Americans.
— FOR YOUR RADAR —
Aside from coverage by Florida Politics, these stories are worthy of your time.
—“COVID-19 vaccines for infants arrive in Florida. Here’s why doctors are throwing them away” via Daniel Chang of the Miami Herald — Dozens of South Florida pharmacies, community health centers, children’s hospitals and pediatricians received delivery this week of the first COVID-19 vaccines available for children as young as 6 months old — much earlier than anticipated after state officials missed a deadline for pre-ordering the shots. But pediatricians and public health advocates working to vaccinate newly eligible children under 5 said they are throwing away the majority of the doses they have ordered because the Governor will not authorize state programs to administer the vaccines for infants and toddlers, effectively cutting off supply to many family doctors.
—“‘I wanted to do more.’ Miami trauma surgeon went to Ukraine to work on war victims” via Anuragg Bukkuri of the Miami Herald — A woman whose arm and leg was shattered from mine-like projectiles shot into her apartment. A young man whose face was nearly blown away by a rocket-propelled grenade. A man whose chest and liver was obliterated from a missile strike. These were among the cases that Dr. Enrique Ginzburg, trauma medical director at Jackson South Ryder Trauma Center, encountered on his recent trip to Ukraine, where he worked side by side with local physicians performing complex surgeries on victims of Russia’s invasion of the Eastern European country.
—“Publix won’t give COVID-19 vaccine to children under 5,” via Christopher O’Donnell and Ian Hodgson of The Tampa Bay Times — Since COVID-19 vaccines first became available, Publix has played a significant role in tackling the public health emergency in Florida by offering vaccines to adults and, later, children as young as 5. But the Lakeland grocery company says it will not provide the vaccine approved for children ages 4 and under “at this time.” Spokesperson Hannah Herring said Tuesday that Publix would not release a statement explaining its decision. The company’s website indicates that it still accepts COVID-19 vaccine appointments for children ages 5 and up. The company still offers other child vaccinations, including the flu shot for babies as young as 6 months.
—“Deadly form of meningitis outbreak in Florida kills 12” via Saundra Weathers of Spectrum News — A form of bacterial meningitis called meningococcal disease is officially being labeled as an outbreak in Florida. So far this year, there have been 44 confirmed cases, according to Florida Department of Health officials. Officials also confirmed that 12 people had died this year because of the disease. And more than half the cases are from the LGBTQ community.
—“HCA Healthcare facing more litigation, this time in Florida” via Jennifer Henderson of MedPage Today — HCA Healthcare is facing federal antitrust litigation in Florida after a group of doctors from an orthopedic surgical practice in Sarasota filed suit against the sprawling health care system earlier this year. Location 24 — a limited liability company (LLC) comprised of a dozen doctors who are part of the Kennedy White Orthopedic Center — filed suit against HCA and its Doctors Same Day Surgery Center in January. The litigation remains ongoing, according to court filings, with the doctors from Kennedy White alleging inappropriate restraints on trade and attempts to monopolize the orthopedic surgical services market in the Sarasota area.
— PENCIL IT IN —
National HIV Testing Day
Happy birthday, Sen. Lori Berman.
Happy birthday, Senate President Wilton Simpson.
1 p.m. The state Suicide Prevention Coordinating Council will meet. Department of Children and Families, 2415 North Monroe Street Tallahassee.
2 p.m. The First Responder Suicide Deterrence Task Force meets. Go to myflfamilies.com for more information.
3:30 p.m. The Medicaid Medical Care Advisory Committee Subcommittee Meeting for HIV/AIDS meets. Meeting link here.
Happy birthday, Rep. Erin Grall.