Government Affairs: Florida Legislative Session 2021 By Dr. Blake Buchanan

COMMITTEE REPORT

Government Affairs: Florida Legislative Session 2021

By Blake Buchanan, MD

Committee Co-Chair

Photo provided by Dr. Wayne Lee, FCEP past-president 1983-85, from an ACEP Leadership & Advocacy Conference years ago. Graphic design by Joe Stern

Greetings, and I hope this update finds you well. Emergency Medicine Days 2021 was held virtually this year on April 8-9, 2021, but this remix did not stop us from having a productive and successful Legislative Session.

Session ended on Friday, April 30, and Governor Ron DeSantis has a 15-day window to sign or veto the bills that were successfully passed through the State Legislature. Here is an update on where our priority issues stand:

1) PERSONAL INJURY PROTECTION (PIP) REPEAL - PASSED

In the closing hours of Session, the House and Senate signed off on SB 54: Motor Vehicle Insurance, which will repeal Florida’s no-fault personal injury protection (PIP) system and replace it with bodily insurance (BI) coverage in January 2022 if signed into law by Gov. DeSantis. The PIP system assures prompt payment to emergency physicians who provided mandatory care for injured motorists, and especially uninsured motorists. As such, any change in coverage should preserve first dollar coverage for the care we provide. FCEP worked to ensure that the 2.8 million Floridians without proof of health insurance will be required to purchase or opt-out of Medical Payments coverage, and that the $5,000 physician set-aside would be retained, which is key to assuring liens do not give hospitals priority access to Medical Payment funds.

We succeeded: The final bill mandates Med Pay at both $5,000 and $10,000, with an opt-out in writing. Without an opt-out in writing, the policy reverts to the $10K med pay. Med pay has a $5K 30-day, physician set-aside for emergency care and inpatient care.

2) COVID-19 LIABILITY PROTECTIONS FOR HEALTHCARE PROVIDERS - SIGNED INTO LAW

In the first part of the legislative session, much of the focus was on bills related to the thing our whole world has centered around the past year: the pandemic. Through a lot of hard work and meetings with legislators and their staff, we witnessed the successful passing of COVID-19 liability protections for healthcare workers. While many states passed protections against malpractice lawsuits related to COVID-19 early on in the pandemic last year, Florida was one of the holdouts since the legislative session had come to an end and the Governor chose not to take executive action. Thankfully, this has been corrected with passage in both houses and a signature by Governor DeSantis in March.

facilities and professionals have a special duty to patients and residents in their care. The bill applies to claims under existing medical malpractice and long-term care laws related to: • Contracting COVID-19 • Delay/omission in scheduling surgery caused by the pandemic • Injuries in emergency care caused by the pandemic • Treating COVID-19 patients with new or experimental therapies • Injuries from the exacerbation of pre-existing conditions by

COVID-19

Details: • Plaintiffs who file a COVID-19related lawsuit must prove that the healthcare provider’s conduct constituted gross negligence or intentional misconduct. • Claims must be filed within one year after the date of death, hospitalization, or first diagnosis of COVID-19. The bill establishes procedures to filter out claims that have insufficient factual support. • Current law provides different procedures for negligence claims against nursing homes and assisted living facilities than for other types of healthcare providers, such as doctors and hospitals. • The bill would take effect upon becoming a law and applies retroactively, except to defendants named in lawsuits filed before the effective date of the bill. • The liability protections will apply until one year after the termination or expiration of the state public health emergency relating to COVID-19, or any nationwide emergency declaration by the federal government; whichever is later.

Claim Requirements: • Third Party Claims: will require a physician’s affidavit to support a plaintiff’s claim, i.e. that the plaintiff contracted the coronavirus on the defendant’s premise. Further, the plaintiff must prove the defendant failed to make a good faith effort to comply with applicable government guidance

at the time of exposure. Finally, the plaintiff must prove by clear and convincing evidence that the defendant’s actions were at least grossly negligent. • Patient Claims: will require the plaintiff to prove the defendant’s actions were at least grossly negligent. Defendants have an affirmative defense that they followed government guidance.

The court must consider the effects of the COVID-19 pandemic on the standard of care.

3) SCOPE OF PRACTICE EXPANSION FOR ADVANCED PRACTICE PROVIDERS - PASSED

FCEP continues to use every fact and resource to oppose unwarranted, unnecessary and unsafe scope of practice expansions. When SB 894: Physician Assistants started off granting PA’s autonomous practice, FCEP and the physician community went to work. Through negotiations and compromise, an amendment removed the autonomous practice language in favor of an “unlimited cap” on the number of PA’s a physician can supervise, before finally settling on the amendment that ultimately passed, which raises the maximum number of PA’s a physician can supervise from four to 10. FCEP fought hard within the physician community to cap this number at six instead of 10 – especially since physicians remain liable for all care provided by their PA’s – but unfortunately, the majority overruled.

Gov. DeSantis has not signed the bill into law yet, and we encourage him not to. Before any more scope of practice expansion bills pass, it is prudent for legislators to evaluate last year’s law based on the intent and promises made, as well as the impact to healthcare.

• What has the new NP law accomplished? If the goal was to increase access to primary care, did that actually occur? • If expansion of primary care into rural areas was the intent, are we seeing that outreach? Or are autonomous NPs expanding in wealthy areas, suggesting the push

was for NP use in cosmetic clinics and/or independent practice? • What consideration is being given to the hospital quality of care and physician workforce issues brought about by these changes and the global pandemic? • What metrics have been or will be established for patient safety, quality and outcomes related to NP or PA expansion goals?

We look forward to hearing the answers to these questions in the next Session, where we anticipate scope of practice expansion bills to make another comeback. If you have any data to provide on this important issue, please contact FCEP now.

4) PELVIC CONSENT LAW - PASSED

Last year, a bill was passed requiring written consent in lieu of verbal consent for pelvic examinations. Over the summer, FCEP worked with coalition partners to address some deep concerns with the implementation of this bill.

We asked for a clarification of terms: The language used in the 2020 bill did not align with prior statute and created confusion. The pelvic exam language should track back to s. 395.002(9), which defines emergency treatment and care.

We asked for a general consent form to help avoid delays in care: Getting verbal consent in the ED gave practitioners the opportunity to provide real-time reassurance and education through “casual” conversation. The written consent process puts a halt to the traditional physician/patient medical exam by forcing the practitioner to stop and bring in non-clinician staff with additional forms. A single, general consent specifying that a pelvic may or will be performed should be used as opposed to requiring a separate, unique process for the pelvic examination.

We succeeded, and the new bill:

• Amends, narrows, and simplifies the definition of “pelvic examination”;