FSLA WORKS FOR YOU & KEEPS YOU IN THE KNOW
As a trusted and dependable advocacy resource, FSLA’s goal is to continue our stellar reputation for accomplishing significant legislative and regulatory policy efforts that benefit Florida’s senior living providers and residents.
By 2040, more than 25% of Florida's population will be over 65. With Florida's senior living industry generating $14.5 billion in an annual state economic impact, saving Medicaid $9 billion annually, and generating $14.5 billion in productivity savings, our continued success is critical for providers, seniors, and the state.
Florida’s 2023 Legislative Session was busier than ever, with a lot of issues considered that directly or indirectly affect long-term care facilities. In total, 1,828 bills were filed, with 356 passing both legislative chambers and pending the Governor's approval.
Although FSLA’s flagship tort reform legislation did not pass this year, several tort reform items affecting long-term care facilities did pass, as well as other substantive issues affecting long-term care facilities that FSLA engaged on with great success. You can read more about key activities during the 2023 Legislative Session below:
Tort Reform Legislation That Passed:
Civil Remedies - SB 236 (Sen. Hutson) /HB 837 (Rep. Gregory): This bill was designed with the intent to help all businesses and covers topics relating to: Loadstar fee presumptions; one-way attorney fees; statute of limitations in negligence claims; bad faith; letters of protection; comparative fault for negligent security premises liability; and modified comparative fault. Unfortunately, because ALFs and nursing homes have their own unique statutory construct in Chapters 429 and 408, Florida Statutes, this bill will not have a significant impact on ALFs and nursing homes as long-term care providers, but ALFs and nursing homes will benefit as businesses. You can read more about HB 837 here.
Telephone Solicitation – SB 1308 (Sen. Yarborough) / HB 761 (Rep. Fabricio): The bill clarifies and revises certain requirements for telephonic sales calls relating to the use of automated systems, what constitutes consent and clear and conspicuous disclosure, and that an electronic/digital signature or act of demonstrating consent is sufficient for consent.
Advertisements for Legal Services - SB 1246 (Sen. Yarborough) / HB 1205 (Rep. Andrade): The bill prohibits legal services advertisements from presenting the ad as a medical alert or offering advice from a government entity. It also requires a legal services advertisement soliciting clients who may allege injury from an FDA-approved prescription drug or medical device to include specified statements and information in the advertisement.
Industry Issues of Interest That Passed the Legislature:
Florida Senior Living Institute CNA On-The-Job Training Program - SF 1774 (Sen. Harrell) / HF 540 (Rep. Koster) : This is the second year that FSLI will be able to offer the CNA On-the-job Training Program to ALFs throughout the state. The appropriations request was once again fully funded by the Florida Legislature.
Education and Training For Alzheimer’s Disease and Related Forms of Dementia – SB 1182 (Sen. Simon) / HB 299 (Rep. Black): Current required training requirements for Alzheimer’s disease and related forms of dementia vary across health care provider types. The passage of HB 299 seeks to bring consistency to these training requirements regardless of the health care setting. The bill revises minimum training requirements and timeframes for nursing homes, assisted living facilities, home health agencies, nurse registries, homemaker and companion service providers, adult family-care homes, and adult day care centers. The legislation also makes the training requirements applicable to employees of health care services pools. Additionally, the bill requires the Department of Elder Affairs to offer certain education about Alzheimer’s disease and related forms of dementia to the general public.
Elder and Vulnerable Adult Abuse Fatality Review Teams – SB 1540(Sen. Garcia) / HB 1567 (Rep. Hawkins): This bill was advocated for by AARP and the Elder Law Section of the Florida Bar. The bill as originally drafted raised serious concerns that the trial bar would be able to abuse the process; however, FSLA worked with advocates and the bill was amended to address our concerns. SB 1540 makes numerous changes to, and expands the scope of, the existing Elder Abuse Fatality Review Teams, such as including vulnerable adults and expanding the scope of the teams to include incidents which are the result of exploitation. The bill also had an accompanying public records bill, SB 1542 (Sen. Garcia) / 1569 (Rep. Hawkins).
Protection From Discrimination Based on Health Care Choices - SB 252 (Sen. Burton) / HB 1013 (Rep. Griffitts): The bill is a continuation of previous legislative efforts pertaining to Covid-19, including Covid-19 passport prohibitions, employee vaccination mandates, and long-term care facility visitation.
Regarding proof of Covid-19 vaccinations, the bill prohibits businesses (including ALFs and independent living facilities) from requiring proof of a vaccination with one of the specified types of vaccinations, postinfection recovery from COVID-19, or a COVID-19 test to gain access to, entry upon, or service from the business. It also prohibits these businesses from firing, refusing to hire, or otherwise taking adverse action against a person based on Covid-19 vaccination status, recovery, or testing.
Regarding mask mandates, the bill does two things. For independent living facilities (and businesses in general), the bill prohibits requiring persons, including visitors, to wear facial masks or other coverings. For ALFs (and other health care providers) the bill requires DOH and AHCA to jointly develop standards for the use of facial coverings in such settings by July 1, 2023, and for ALFs and other health care providers to establish policies and procedures for facial coverings by August 1, 2023, that are consistent with these rules if the provider requires any individual to wear a mask.
Note - remember that in order to utilize the limitation of liability protections for COVID-19 claims in s. 768.381, F.S., an ALF must be able to prove the existence of an affirmative defense - which generally relates to proving substantial compliance with government-issued health standards. However, this statute will not apply to claims that accrue after June 1, 2023.
Health Care Provider Accountability – SB 1596 (Sen. Garcia) / HB 1471 (Rep. Busatta Cabrera): This bill allows AHCA to seek injunctions to stop unlicensed activity by providers engaging in such activity. This will allow AHCA to pursue action against “recovery homes” where patients who had undergone Brazilian butt lift surgery were going for post-surgery recovery and experience medical complications and even death. AHCA was previously trying to pursue action against these entities by classifying them as unlicensed ALFss.
Certified Nursing Assistants – SB 558 (Sen. Burton) / HB 351 (Rep. Robinson): The bill creates a new designation of “qualified medication aide” (QMA) for certified nursing assistants (CNA) who work in a nursing home and meet specified licensure and training requirements. The bill allows a nursing home to authorize a registered nurse (RN) working in the nursing home to delegate medication administration to a QMA who is working under the direct supervision of the RN. The bill also specifies that CNAs performing the duties of a QMA may not be counted toward staffing requirements for nursing homes.
Continuing Care Contracts – SB 622 (Sen. Yarborough) / HB 1573 (Rep. Persons-Mulicka): Among many changes to CCRCs, the bill: makes it easier for a provider to access escrowed resident fees as part of an expansion, allowing access to the escrowed funds once 75 percent of the proposed units have been reserved rather than once payment in full has been received for 50 percent of the units; reduces the time for the OIR to approve or deny an expansion application from 45 days to 30 days from the date the application is deemed complete; expands the types of financial institutions that can provide a letter of credit to a provider to satisfy its minimum liquid reserve requirements by adding state-chartered financial institutions as well as federally-chartered financial institutions; requires a provider that owns or operates more than one facility in Florida to have a designated resident representative at each facility; and requires each facility to provide a copy of the OIR final examination report and corrective action plan, if applicable, to the president or chair of the residents’ council within 60 days after issuance of the report.
Blood Clot and Pulmonary Embolism Policy Workgroup – SB 612(Sen. Yarborough) / HB 483 (Rep. Black): Known as the “Emily Adkins Prevention Act,” named after the late daughter of Doug & Janet Adkins, the bill establishes a blood clot and pulmonary embolism policy workgroup. The workgroup is tasked with identifying specific background information pertaining to the prevalence, data collection, impacts, standards of care, and emerging treatments of blood clots and pulmonary embolisms. The workgroup is further tasked with developing a risk surveillance system for various health care providers and facilities and policy recommendations to improve patient awareness, including written materials and guidelines that affect the standard of care for patients at risk of forming blood clots.
Fees in Lieu of Security Deposits – SB 494 (Sen. DiCeglie) / HB 133(Rep. Mooney): The bill authorizes but does not require a landlord to offer a tenant the option to pay a fee in lieu of a security deposition. If the landlord offers this option, the landlord must give the tenant written notice that meets several requirements.
Department of Elderly Affairs – SB 1396 (Sen. Garcia) / HB 1411 (Rep. Tramont): The bill prohibits employees of the State Long-Term Care Ombudsman Program from being appointed as ombudsmen. The bill also expands the background screening of direct service providers under s. 430.0402, F.S. to include administrators, financial officers, and other employees whose responsibilities may require personal care/direct services and access to client financial or legal matters, personal property, or living areas.
Other Legislation of Interest That Passed:
Interests of Foreign Countries - SB 264 (Sen. Collins) / HB 1335 (Rep. Borrero): The bill mandates that the offsite storage of certain personal medical information must be in the continental United States, a territory of the United States, or in Canada. The bill also limits foreign nationals to coming in and purchasing more than one property within five miles of military installations and critical infrastructure facilities, while requiring an affidavit attesting a lack of ties to the Chinese Communist Party.
Local Ordinances - SB 170 (Sen. Trumbull) / HB 1515 (Rep. Brackett): This bill grants businesses more leeway to file lawsuits against local governments and municipalities if profit margins are affected by “unreasonable” enacted ordinances. If a lawsuit is permitted to proceed, the bill would require the local government to stop enforcing the ordinance being challenged, also mandating that the legal challenge is prioritized over other pending cases to make a decision “as quickly as possible,” according to a legislative analysis.
Health Care Practitioner Titles and Designations – SB 230 (Sen. Harrell) / HB 583 (Rep. Massullo): The bill establishes that if a practitioner, other than an allopathic or osteopathic physician, utilizes certain identified titles or designations in advertisements or in other misleading, deceptive or fraudulent ways, then the practitioner is engaging in the unlicensed practice of a health care profession. The bill also requires health care practitioners to wear name badges and establishes requirements for name badges, unless the practitioner is in his or her office where the practitioner’s license is prominently displayed. The bill originally would have required ALFs to display the licenses of all professional staff providing care in the ALF, including third-party contractors. FSLA was able to remove this requirement for ALFs, and eventually the legislature removed the requirement for other health care providers as well based in part on FSLA’s arguments on why it was inappropriate for ALFs.
Protections of Medical Conscience – SB 1580 (Sen. Trumbull) / HB 1403 (Rep. Rudman): The bill provides that a health care provider or payor has the right to opt out of participation in or payment for a health care service on the basis of a conscience-based objection. It establishes notification requirements for opting-out and prohibits a payor from opting-out of paying for a service it is contractually obligated to cover during a plan year. A health care provider or payor may not opt-out of providing health care services to any patient because of that patient’s race, color, religion, sex, or national origin, and the bill may not be construed to override any requirement to provide emergency medical treatment in accordance with federal or state law.
Fire Sprinkler System Projects – SB 408 (Sen. Perry) / HB 327 (Rep. Bell): The bill in part creates an expedited permitting process for certain “fire sprinkler system projects,” similar to the current process for fire alarm system projects, and prohibits local enforcement agencies from requiring a fire protection system contractor to submit plans to obtain a building permit for a fire sprinkler system project, as defined in the bill. This expedited process would allow a fire protection system contractor to start work on such fire system projects without first obtaining a standard permit, and instead obtain an expedited permit electronically.
Referral of Patients by Health Care Providers – SB 768 (Sen. Martin) / HB 601 (Rep. 601): The bill removes the direct supervision requirement and the requirement that the physician be present in the office suite, allowing general supervision of such services from locations outside of the office where the services are provided. The bill allows self-referring health care providers to avoid the cost of having a physician present while health care services are provided. The change in state law also aligns with federal Stark law provisions regarding self-referrals by a health care provider to another provider in which the referring physician has a financial or other pecuniary interest.
Business Rent Tax: As part of the state's budget process, the BRT will be reduced from 5.5% to 4.5%. Florida is the only state in the United States to impose a sales tax on commercial rent. For years now, the state of Florida has considered itself at a competitive disadvantage for companies looking to relocate because of this tax. The state has slowly reduced the commercial rental sales tax rate over the past several years.
Telehealth Practice Standards – SB 298 (Sen. Boyd) / HB 267 (Rep. Fabricio): The bill revises the definition of telehealth to include telephone calls in the telehealth technology authorization statute. Currently, health care providers commonly provide services telephonically, and current law does not prevent them from doing so, thus this is not expected to have a significant impact on health care practice. This change does not affect whether health insurers will reimburse, as a telehealth service, health care practitioners for services provided through telephone calls, but it does clear the way for that to occur.
Technology Transparency – SB 262 (Sen. Bradley) / HB 1547 (Rep. McFarland): The perineal data privacy bill has finally passed. The final language also made clear most privacy protections were targeted at businesses with 10-figure revenues, by exempting businesses with less than $1 billion in revenue each year. Effectively, that means the bill will have a great impact on major companies like Google and Meta, and less impact on local retailers serving only a small geographic region.
Exploitation of Vulnerable Persons - SB 232 (Sen. Garcia) / HB 603 (Rep. LaMarca): The bill creates specific penalties for exploiting a person 65 years of age or older by obtaining or using, through deception or intimidation, the property of a person 65 years of age or older with the intent to deprive that person of the use, benefit, or possession of the property. This includes obtaining the property of a person 65 years of age or older through fraudulent creation of a plan of a will, trust, or other testamentary. Additionally, the bill creates specific penalties for depriving, with the intent to defraud and by means of bribery or kickbacks, a person 65 years of age or older of his or her intangible right to honest services provided by an individual who has a legal or fiduciary relationship with such person.
Department of Health – SB 1506 (Sen. Rodriquez) / HB 1387 by Porras: The bill amends s. 464.203, F.S., to exempt certified nursing assistant (CNA) applicants who have completed an approved training program from the licensure requirement of taking the skills demonstration portion of the examination. It also amends s. 382.025, F.S., to increase the age at which birth records will remain confidential and exempt, from 100 years of age to 125 years of age.
Medical Use of Marijuana – SB 344 (Sen. Brodeur) / HB 387 (Rep. Roach): The bill allows a qualified physician to conduct an examination by telehealth for a patient’s medical marijuana certification renewal if the physician previously conducted an in-person exam of the patient for the purpose of certification. The bill also directs the Department of Health to issue medical marijuana treatment center licenses to applicants who are class members of certain lawsuits.
Prescription Drugs - SB 1550 (Sen. Brodeur) / HB 1509 (Rep. Chaney): This bill requires pharmacy benefit managers, often referred to as “middlemen,” to obtain a certificate of authority from the Office of Insurance Regulation by Jan. 1 and establishes prohibited PBM practices, among other reforms, with the goal of lowering prescription drug costs.
Legislation That Did Not Pass:
Claims Against Long-term Care Facilities - SB 1304 (Sen. Burton)/ HB 1029 (Rep. Maggard): This is the long-term care tort reform legislative package. The bill sought to provide ALFs with parity compared to existing statutory protections for nursing homes, and sought to provide ALFs and nursing homes with parity with existing medical malpractice protections for other health care providers (e.g., hospitals, doctors). FSLA will continue to seek measured, meaningful relief for ALFs during the upcoming 2024 legislative session.
Electronic Monitoring Devices in Long-Term Care Facilities – SB 1486 (Sen. Hutson): This bill would have authorized a resident, or his or her representative, of a nursing home facility or assisted living facility to authorize the installation and use of an electronic monitoring device in the resident’s room if specified conditions are met. It would have also prohibited facilities from denying admission to a person or discharging a resident or otherwise discriminating or retaliating against a resident for the decision to install and use such electronic monitoring device in the resident’s room. .
Assisted Care Communities – SB 1474 (Sen. Calatayud) / HB 1519 (Rep. Plakon): This bill would have authorized AHCA to reimburse adult day care services on a fee-for-service basis under the Medicaid program and established continuing education requirements for such facilities. The bill would have also established that minimum staffing standards for ALFs with 6 or fewer beds shall not exceed 168 hours per week. .
Protection of Medical Freedom – SB 222 (Sen. Gruters) / HB 305 (Rep. Barnaby): The bill would have prohibited the Department of Health from requiring enrollment in the state’s immunization registry or otherwise requiring persons to submit to immunization tracking. It would have prohibited business and governmental entities from requiring individuals to provide proof of vaccination or postinfection recovery from any disease to gain access to, entry upon, or service from such entities. Additionally, it would have prohibited employers from refusing employment to, or discharging, disciplining, demoting, or otherwise discriminating against, an individual solely on the basis of vaccination or immunity status. It would have also revised the Florida Civil Rights Act of 1992 to include discrimination protection for vaccination or immunity status.
Health Care Expenses – SB 268 (Sen. Brodeur) / HB 1413 (Rep. Tramont): The bill would have established a 3-year statute of limitations for an action to collect medical debt for services rendered by a health care provider or facility, and provided for additional personal property exemptions from legal process for medical debts resulting from services provided in certain licensed facilities. It would have required a licensed facility to post on its website a consumer-friendly list of standard charges for a minimum number of shoppable health care services, and required each health insurer to provide an insured with an advance explanation of benefits after receiving a patient estimate from a facility for scheduled services.
Damages Recoverable in Wrongful Death Actions – SB 690 (Sen. Book) / HB 1435 (Rep. Lopez): The bill would have removed a provision that prohibits adult children and parents of adult children from recovering certain damages in medical negligence suits, etc.
Death with Dignity – SB 864 (Sen. Book) / HB 1231 (Rep. Campbell): This bill would have created the "Death with Dignity Act" and would have allowed qualified patients to seek the end of his or her life in a humane and dignified manner.
Premises Liability for Criminal Acts of Third Parties – SB 1274 (Sen. Burton) / HB 1165 (Rep. Duggan): This bill would have required a trier of fact to consider the comparative fault of certain persons in certain actions for damages and would have provided an owner or operator of a multifamily complex with presumption against liability under certain circumstances.
Rent and Security Deposits of Communities for Adults Aged 55 or Older – SB 1698 (Sen. Jones) / HB 1261 (Rep. Gantt): This bill would have prohibited certain landlords from increasing rent of a dwelling unit in excess of a certain percentage and prohibited certain landlords from charging a security deposit in excess of a certain amount.
Timeframe for Bringing Certain Actions – HB 7059 (Rep. Gregory): The bill would have revised the timeframe within which a claimant must present certain claims against a governmental entity in writing to certain entities, and would have revised the timeframe within which a complaint must be filed in order to bring certain claims against a governmental entity.