2017 Legislative Session Preview

by McKenzie A. Livingston

February, 2017

The first two months of 2017 have seen quite a bit of activity in health law in Florida.

In February, the Eleventh U.S. Circuit Court of Appeals struck down a Florida law, known as the Gun Gag Law, which barred doctors from discussing guns with patients. Under the Gun Gag Law, which was blocked from taking effect shortly after it was passed, doctors could face fines of up to $10,000 and the possibility of losing their medical license for discussing gun ownership with patients. The Court found that the Gun Gag Law violates doctors’ First Amendment rights. Governor Scott’s office is reviewing the Court’s decision and deciding whether to appeal to the U.S. Supreme Court.

With Florida’s legislative session commencing March 7th, a flurry of bills related to healthcare have been filed, debated and circulated in the State Capitol.

Legislators have proposed eliminating (HB 7), or at a minimum creating exemptions to (SB 676), the Certificate of Need (CON) regulatory process for hospitals, nursing homes, and hospice facilities. The CON process requires hospitals, nursing homes and hospice facilities to obtain approval from the Agency for Health Care Administration (AHCA) before building new facilities or expanding. AHCA determines whether there is a need in the community for the healthcare facility before permitting new facilities to be built or existing facilities to expand. Proponents claim that eliminating, or allowing exemptions from, the CON process will increase competition, drive down the cost of health care and create jobs. Opponents claim it will result in a glut of beds, create staffing shortages and negatively impact the quality of care provided to patients.

There is also discussion (HB 154) of revising Florida law governing ambulatory surgical centers, which currently bars overnight stays, to permit patients to remain at the centers for up to 24 hours. The bill also introduces a new entity called a recovery care center, where patients could stay up to 72 hours after surgery.

Lawmakers are also discussing proposals (HB 161 and SB 240) to permit the use of direct primary care agreements between doctors and patients. Direct primary care agreements typically involve patients or their employers making monthly payments to physicians or other health providers to cover routine primary-care services. The bills would carve out such agreements from the purview of state insurance laws.

State legislators in both the Senate (SB 900) and House (PCB HHS 17-01) have also submitted proposals which would provide state workers with four levels of insurance options, wherein state workers could choose less coverage in their health insurance benefits and pocket some of the savings. Proponents of the bill claim it provides state workers a variety of health insurance options. Opponents voiced concern that individuals may be enticed to select less coverage in order to obtain the savings payments.

Two bills have been introduced to structure the implementation of Amendment 2, approved by last November, which legalizes medical marijuana for individuals with specific debilitating diseases or comparable debilitating conditions as determined by a licensed state physician. Under existing law, medical marijuana businesses must function at every aspect of the process from growing to processing to dispensing. In order to open a dispensary, one must own a nursery. One bill (SB 406) is built upon this pre-existing framework of licensing vertically integrated businesses, though it does permit a very gradual increase in the number of medical marijuana treatment centers permitted in the State. The other bill (SB 614) seeks to completely revamp the way legalized medical marijuana is regulated. It eliminates the cap on the number of medical marijuana treatment centers that are permitted to exist in the State. It also does away with the vertically structured licensing by permitting companies to be licensed in four distinct areas – growing, processing, transporting or dispensing. At least one additional bill is expected to be introduced by Florida’s House of Representatives.