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. Currently, local states of emergency can be ordered for seven days and extended indefinitely in seven-day increments as needed.

HB 945 passed its first committee of reference this week. SB 1924 is scheduled to be heard in its first committee of reference next week.

Evictions During a Declared State of Emergency

SB 1548 by Sen. Pizzo (D-Miami) relating to Evictions During a Declared State of Emergency prohibits specified service of process relating to a residential eviction during an emergency declaration period, and provides immunity from liability for certain persons, such as a sheriff, for failing to take certain actions during an emergency declaration period. The bill has not yet been heard in committee. Vaccinations During Public Health Emergencies

HB 6003 by Rep. Sabatini (R-Clermont) relating to Vaccinations During Public Health Emergencies removes the authority of the State Health Officer to order vaccinations upon declaration of public health emergency. The bill has not been heard in committee.

Emergency Management

SB 2006 by Sen. Burgess (R-Zephyrhills) relating to Emergency Management revises the definition of the term “natural emergency” to include public health emergencies, requires the Division of Emergency Management’s comprehensive emergency plan to include specified provisions regarding public health emergency preparedness, response, recovery, and mitigation, and redefines the term “essentials” to include personal protective equipment used during public health emergencies, among other provisions.

SB 2006 is scheduled to be heard in its first committee of reference next week.

Other Bills Of Interest Assisted Living Facilities

SB 1830 by Sen. Jones (D-Miami Gardens) and HB 1151 by Rep. Buchanan (R-North Port) relating to Assisted Living Facilities both create a “Medication technician” as an unlicensed staff person who, after completion of 6 hours of training approved by AHCA, may provide assistance with a resident’s self-administration of medications and use of point-of-care devices. In addition, SB 1830 authorizes managed care plans to use funds appropriated by the Legislature to pay ALFs a rate that reflects the medical acuity and complexity of each resident which must be based on a three tiered reimbursement payment system for care.

Neither bill has been scheduled for a committee hearing.

Sales And Use Tax

SB 50 by Sen. Gruters (R-Sarasota) and HB 15 by Rep. Clemons (R-Jonesville) relating to Sales Tax require retailers that sell above a certain amount of product into Florida through remote means, such as through an online store, to collect and remit sales tax.

SB 50 has passed through all three committees of reference and goes to the Senate floor next. It was scheduled to be heard by the Senate on Thursday, March 11 but was postponed to allow Sen. Gruters time to complete the draft of an amendment to link any increase in revenue derived from the bill to be deposited into Florida's Unemployment Compensation Trust Fund.

HB 15 passed out of its first committee of reference this week.

Sales And Use Tax Exemption

SB 224 by Sen. Berman (D-Boynton Beach) and HB 81 by Rep. Casello (D-Boynton Beach) relating to a Sales and Use Tax Exemption exempts from sales and use tax specified items that assist in independent living.

SB 224 is scheduled to be heard in its first committee of reference next week.

Ad Valorem Tax Exemption for Nonprofit Homes for the Aged

HB 571 by Rep. Smith (D) (R-Winter Springs) and SB 1330 by Sen. Rodriguez (A) (R-Doral) relating to Ad Valorem Tax Exemption for Nonprofit Homes for the Aged revise eligibility for the ad valorem tax exemption for property used as a home for the aged by nonprofit corporations to include property owned by a Florida limited partnership where an entity wholly owned by a corporation not-for-profit under ch. 617, F.S. is the sole general partner. Further, the bill reduces the minimum age requirement for the exemption for a unit or apartment occupied by a couple from requiring at least one member of the couple to be at least 62 years of age to requiring at least one member of the couple to be at least 55 years of age.

HB 571 was amended in its first committee of reference and passed by the committee. The amendment removed the reduction in the minimum age requirement from 62 years of age to 55 years of age. SB 1330 has not yet been scheduled for a hearing.

Tax Holidays This week, the Senate Finance and Tax Committee approved bills that provide sales-tax “holidays” for purchasing back-to-school clothes and supplies and disaster-preparedness needs. House companion bills have not been filed but the Senate and House likely will negotiate on the issue as they work on a budget and tax package.

SB 734 by Sen. Joe Gruters, (R-Sarasota), provides for a documentary stamp tax exemption on federal loans made in response to a state declaration of emergency made by the Governor, and provides a sales taxes exemption from May 28 through June 13 on disaster-preparedness supplies such as tarps costing $50 or less; packages of batteries costing $30 or less and portable generators costing $750 or less. The period is geared to the June 1 start of the 2021 hurricane season. A staff analysis said the holiday would reduce state revenues by $20 million and local revenues by $6 million.

The back-to-school proposal SB 598 by Sen. Keith Perry (R-Gainesville), provides a sales tax exemption, July 30 through Aug. 8, on clothes costing $60 or less, school supplies costing $15 or less and personal computers costing $1,000 or less. A Senate staff analysis said the proposal would reduce state tax revenues by $51.5 million and local revenues by $15.5 million.

Dementia-related Training

HB 309 by Rep. Byrd (R-Jacksonville) and SB 634 by Sen. Gibson (Jacksonville) relating to Dementia-related Staff Training create or revise training requirements for all employees of nursing homes, home health agencies, hospices, ALFs, adult family-care homes, and adult day care centers, not just those who have direct contact with individuals with ADRD.

HB 309 has been heard in and passed out of its first committee of reference. SB 634 was amended and passed out of its first committee of reference this week.

LeadingAge Florida is working with the sponsors, the Alzheimer’s Association and the other long- term care associations to address concerns regarding the scope of the bill and the need for clarifications on certain provisions.

Alzheimer's Disease and Dementia-Related Disorders Education

HB 627 by Rep. Salzman (R-Pensacola) and SB 874 by Sen. Brodeur (R-Lake Mary) relating to Alzheimer's Disease and Dementia-Related Disorders Education require the Department of Health, in partnership with Department of Elderly Affairs & the Alzheimer's Association, to provide specified information relating to creating awareness about Alzheimer's disease & dementia- related disorders to certain licensed health care providers.

Neither bill has been heard in committee.

PACE

HB 905 by Rep. Rommel (R- Naples) and SB 1242 by Sen. Book (D-Plantation) relating to PACE codifies the Program of All-Inclusive Care for the Elderly (PACE) in section 430.84, FS. This program is not currently outlined in statute and has been operating through the annual appropriations process. The bill codifies current practice without making substantive modifications.

HB 905 passed out of its first committee of reference on Monday, March 8th. SB 1242 has not been scheduled for a hearing.

Medicaid

SB 1292 by Sen. Bean (R-Jacksonville) and HB 1057 by Rep. Garrison (R-Orange Park) relating to Medicaid includes a provision amending the nursing home rate setting section to remove a requirement that AHCA report annually to the Legislature the direct and indirect care costs, including average direct and indirect care costs per resident per facility and direct care and indirect care salaries and benefits per category of staff member per facility.

HB 1057 passed out of its first committee of reference on Monday, March 8th. SB 1292 has not been scheduled for a hearing.

Protection of Elderly Persons and Disabled Adults

HB 1041 by Rep. Burton (R-Lakeland) and SB 1344 by Sen. Burgess (R-Zephrhills) relating to Protection of Elderly Persons and Disabled Adults strengthen existing laws relating to protection of vulnerable individuals from abuse as it relates to wills, estates and trusts.

HB 1041 passed out of its first committee of reference this week. SB 1344 also passed out of its first committee of reference this week.

Broadband Internet Deployment

HB 753 by Rep. Clemons (R-Jonesville) relating to Broadband Internet Deployment creates the Florida Broadband Opportunity Program within the Office of Broadband (within the Department of Economic Opportunity) to award grants to applicants who seek to expand broadband Internet service to unserved and underserved areas of the state. The grants are to be used for the installation and deployment of infrastructure that supports broadband Internet service. Recognizing the role broadband Internet service plays in delivering health care services, the bill provides that the Office may prioritize applications that offer new or substantially upgraded service to important community institutions including healthcare facilities.

HB 753 was heard in and passed by its second committee of reference this week.

SB 1560 by Sen. Ausley (D-Quincy) and HB 1339 by Rep. Goff-Marcil (D-Maitland) relating to Broadband Internet Service require the Office of Broadband within the Department of Economic Opportunity to develop geographic information system maps to illustrate current broadband availability.

SB 1560 is scheduled to be heard in its first committee of reference next week.

SB 2004 by Sen. Burgess (R-Zephyrhills) relating to Broadband Internet requires the Florida Office of Broadband’s strategic plan to include short-term and long-term goals for increasing the availability of and access to broadband Internet service in this state and requires the updated plan to be submitted to the Governor, the Chief Justice of the Supreme Court and the Legislature by a specific date.

The bill has not yet been heard in committee.

A Week in Review – News from the Capitol

Below is an overview of events that took place at the Capitol during the second week of the 2021 Legislative Session.

Weekly Rundown

On Thursday afternoon, President Joe Biden signed into law a $1.9 trillion COVID-19 economic relief package that provides stimulus payments for 90% of US households, a $300 federal boost in weekly unemployment benefits, and $350 billion in state and local aid. Florida is expected to receive nearly $8 billion in one-time federal aid, which Governor DeSantis wants to allocate it to his resilience plan for addressing climate change. Senate President Wilton Simpson prefers to spend it on non-recurring road repair or water projects. Thus far, House Speaker Chris Sprowls has not commented.

The announcement that Florida would receive federal aid came on the heels of an agreement by legislative leaders to enact state legislation to collect sales tax from out-of-state online retailers. Florida is one of two states to have not addressed this issue since the US Supreme Court ruling in South Dakota v. Wayfair. The almost $1.2 billion in new revenue will be used to shore up the unemployment trust funded by Florida employers. The minimum tax for unemployment increased from $7 to $20 per employee at the beginning of 2021. It is estimated to climb to $80 per employee in 2022.

The Senate combined two bills providing lawsuit protections for businesses and health care providers. The merged legislation is ready for the Senate floor. The House already approved its measure to give protections to businesses and is poised to soon consider the bill limiting COVID- 19 lawsuits for health care providers as it advanced through its second committee this week.

On Wednesday, the Florida Cabinet, meeting at the Clemency Board, ordered the remission of all fines related to violating COVID-19 local government restrictions. You may access the order here.

Earlier in the week, the Governor appointed Adrian Lukis as his new Chief of Staff, succeeding Shane Strum, who resigned to join the private sector. Lukis previously served as an advisor to House Speaker José Oliva. Lukis prior experience includes serving as a member of the staff for the Miami-Dade County Commission and, as an attorney, in the private sector.

Copyright 2020 — Publication of LeadingAge Florida Chair: Joel L. Anderson President/CEO: Steve Bahmer Managing Editor: Nick Van Der Linden

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