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Leadingage Florida Legislative Priorities

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Leadingage Florida Legislative Priorities 2021 Legislative Session Legislative Bulletin Week Two: March 12, 2021 Joel L. Anderson, Chair | Steve Bahmer, President/CEO 1812 Riggins Rd | Tallahassee, FL 32308 | P: (850) 671-3700 | F: (850) 671-3790 LeadingAge Florida Legislative Priorities COVID-19 Healthcare Provider Liability Protections LeadingAge Florida supports reasonable, limited liability protections for long-term care providers for their extraordinary efforts to offer the best possible frontline care in an ever- changing environment. SB 74 by Sen. Brandes (R-St. Petersburg) and HB 7005 by the House Health and Human Services Committee and Rep. Burton (R-Lakeland) relating to Civil Liability for Covid-19- Related Claims Against Health Care Providers address requirements for civil action based on COVID-19-related claims. This week in the Senate Rules Committee, strike all amendments were prepared for both the business liability bill, SB 72, and the health care provider liability bill, SB 74, that combined the two bills into one, along with other changes to the legislation. SB 72 was taken up first and passed, as amended, by the committee. SB 74 was not taken up, making SB 72 now the vehicle for both the business and health care provider liability bills. The bill will go to the Floor next to be considered by the Full Senate. SB 72, as amended, provides civil immunity from COVID-19 liability to businesses, educational institutions, religious institutions, governmental entities, health care providers, and other covered entities that acted in good faith during the COVID-19 pandemic. The bill protects reasonably acting entities and institutions so that they can predict their COVID-19-related litigation risks, remain viable, and continue to contribute to the state's well-being. HB 7005 was amended in and passed out of the House Judiciary Committee. It now goes to the Floor for consideration by the full House. Both the Senate and House bills retain the provisions and procedures for civil liability claims in the authorizing statutes for nursing homes (chapter 400) and assisted living facilities (chapter 429) and layer on the enhanced liability protections. To the extent that there are any conflicts, the provisions of the COVID-19 liability protections in the bills prevail. Enhanced liability protections include a gross negligence standard, particular pleading requirements, affirmative defenses which provide immunity, and a one year statute of limitations. CCRCs have been included as a health care provider, but the protections against claims by independent living residents are treated slightly different with the House bill providing an even higher bar to lawsuits by imposing a physician affidavit requirement. The higher bar is carried over for claims by independent living residents of non-entrance fee communities, third parties, vendors, or visitors, with each bill requiring the affidavit and the Senate bill imposing a rigorous clear and convincing evidentiary standard. Steve Bahmer, President/CEO of LeadingAge Florida testified in support of the bills at both committee hearings. Affordable Housing Trust Funds As a member of the Florida Housing Coalition, LeadingAge Florida opposes sweeping any of the $423 million anticipated for low-income housing to other state priorities and supports legislative efforts to prohibit the transfer of trust funds for other purposes. SB 510 by Sen. Hooper (R-Palm Harbor) and HB 13 by Rep. Killebrew (R-Winter Haven) relating to State Funds prohibit the transfer or use of the state and local housing trust money for any other purpose. Governor DeSantis’ recommended budget for FY 2021-22 includes $423.3 million for Florida’s state and local housing programs. The funding is critical at a time when funds are needed to repair and produce housing that is desperately needed by Florida’s essential workforce and most vulnerable residents. SB 510 has passed two committees of reference and is now in the Appropriations Committee. The House companion has not been heard in committee. Medicaid Funding For Nursing Homes LeadingAge Florida supports continued funding of the recurring inflationary rate increase contained in the FY 2020-21 budget. LeadingAge Florida will work to secure the Medicaid funding proposed in the Governor’s recommended budget as presented to the Legislature. This funding will help ensure Florida’s seniors continue to have access to the highest quality of care and offset some of the additional costs that have resulted from the COVID-19 pandemic. It is now more important than ever that the Legislature retain the nursing home Medicaid inflationary increase from the FY 2020-2021 budget. During the COVID-19 pandemic, nursing homes in Florida have been on the front lines doing everything they can to protect and care for the most vulnerable. Before the pandemic, Medicaid underfunded the cost of care in nursing homes by $13.79 per patient per day. Occupancy levels have gone down by 15% since this pandemic hit; but expenses have increased significantly. Operating costs for long-term care providers increased substantially this year, including increased operational fixed costs and increased expenses for personal protective equipment, infection control supplies, testing and staffing, because of the pandemic. LeadingAge Florida responded to a request by the Chair of the House Health Care Appropriations Subcommittee for recommendations regarding nursing home funding in follow-up to last week’s hearing on CARES Act funding. In summary, LeadingAge Florida urged the Legislature to continue to reimburse nursing homes at the inflationary rate increase that was distributed equally among all nursing homes providers in the FY 2020-2021 budget, and requested a one-year delay in the implementation date of the next phase of the Prospective Payment System, as it will add still another financial burden to Florida’s high-quality providers. Nursing Home Workforce Shortage – Personal Care Attendant LeadingAge Florida supports HB 485 by Rep. Garrison (R-Orange Park) and SB 1132 by Sen. Bean (R-Jacksonville) authorizing nursing homes to hire personal care attendants (PCAs) if certain training requirements are met. The workforce shortage in long-term care is an ongoing challenge that has been exacerbated by the COVID-19 pandemic. One initiative designed to help alleviate workforce pressures during the pandemic, the Personal Care Attendant (PCA) program, was approved by the Agency for Health Care Administration in March 2020. Over the past year, this program has become a valuable way to extend and support other nursing home direct caregivers. The PCA program consists of an 8-hour training course (5 hours classroom and 3 hours hands-on-competency checks) and continued on-the-job training. A PCA will perform basic resident care procedures to support the CNAs in a community. LeadingAge Florida supports legislation making this program permanent, rather than ending when the COVID-19 State of Emergency expires. SB 1132 is scheduled to be heard in its first committee of reference on March 17. Activity on Bills Monitored by LeadingAge Florida Pandemic Protections/Related Bills Civil Liability for Damages Relating to COVID-19 HB 7 by Rep. McClure (R-Plant City) and SB 72 by Sen. Brandes (R-St. Petersburg) relating to Civil Liability for Damages Relating to COVID-19 Direct Care Workers provide protection for businesses from COVID-19 lawsuits. The bills provide lawsuit immunity for companies, schools and religious institutions brought by plaintiffs who have been affected by COVID-19. The bills do not provide liability protections to health care providers, which are covered in SB 74 and HB 7005. The legislation includes requirements that anyone filing a lawsuit after having contracted the virus would have to produce an affidavit from a physician confirming the doctor's belief that the COVID-19 illness was a result of the actions of the business, with the burden for proving that on the plaintiff. HB 7 passed the House last week and will be sent to the Senate soon. SB 72 was taken up and amended in the Rules Committee this week. As amended, SB 72 now provides protections for both businesses and health care providers from COVID-19 lawsuits. Protecting Consumers Against Fraud HB 9 by Rep. Zika (R-Land O’Lakes) and SB 1608 by Sen. Bean (R-Jacksonville) relating to Protecting Consumers Against Pandemic-related Fraud prohibits the dissemination of false or misleading information relating to personal protective equipment and vaccines and authorizes the state attorney or statewide prosecutor to prosecute violators. This legislation is intended to guard against situations such as one that occurred recently where scammers created fake Eventbrite accounts posing as various county health departments in an effort to get people to pay money for COVID-19 vaccinations. HB 9 passed the House last week. SB 1608 is scheduled to be heard in its first committee of reference on Tuesday, March 16. Personal Protective Equipment HB 1353 by Rep. Yarborough (R-Jacksonville) and SB 1760 by Sen. Albritton (R-Bartow) relating to Personal Protective Equipment requires the Department of Emergency Management to ensure availability of personal protective equipment during a declared emergency caused by infectious or communicable disease and requires such equipment be available for purchase at certain cost by healthcare practitioner. It also prohibits such equipment from being resold at a price that exceeds the purchase price. SB 1760 is scheduled for its first committee hearing next week. Emergency Management Powers of Political Subdivisions HB 945 by Rep. Rommel (R-Naples) and SB 1924 by Sen. Diaz (Hialeah Gardens) relating to Emergency Management Powers of Political Subdivisions require that a significant emergency order issued by a political subdivision be narrowly tailored and limited in duration, applicability, and scope to reduce any infringement on individual liberty to the greatest extent possible. The bill also provides that a significant emergency order automatically expires 7 days after issuance but may be extended, as necessary, in 7-day increments for a total duration not to exceed 42 days.
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