The
2014 legislative session
officially ended Friday, May 2, with the Legislature passing the $77.1
billion budget for 2014-2015. The budget was the largest in state
history, and, along with important funding for nursing home care, the
budget includes additional money for public schools, child-protective
investigators and restoring the Everglades and other waterways. The
Legislature approved $500 million in tax cuts, including a $400 million
rollback in auto registration fees that will kick in this fall.
Lawmakers also approved smaller proposals, such as holding a
back-to-school tax holiday in August, a three-day sales tax holiday in
September on the purchase of energy efficient appliances, and a nine-day
sales tax holiday on the sale of hurricane preparation supplies such as
batteries and generators.
Florida Health Care Association saw significant results on our top legislative priorities,
including protecting Medicaid funding for nursing home care, and the
passage of nursing home litigation reform and changes to the Certificate
of Need law. Our success with advancing our legislative agenda is a
result of the Association’s strength in numbers, comprehensive
strategies and a unified message when it comes to educating lawmakers
about the challenges that long term care providers face.
BUDGET
Governor
Rick Scott released his initial budget in January, which fully funded
the estimated 2014-2015 expenditures for nursing homes, including full
inflation, established a single rate setting period effective September
1, and provided funding to develop Resource Utilization Groups for
nursing facility services under Medicaid.
The
initial budgets released by the House and Senate in March also called
for the full funding of nursing homes as provided under current law,
including the expected inflationary increase. The House, however,
required a reconciliation of prior year nursing home quality assessment
payments, which would have been the equivalent of a $64.3 million
funding cut to providers’ Medicaid rates. Early into the budget
conference, the House receded to the Senate position to preserve
Medicaid funding for nursing home care, which means a nearly $65 million
funding cut was averted.
The final $77.1 billion budget (HB 5001) provides $3.12 billion1
for nursing home care, which, as indicated, reflects full funding of
workload and price level increases (inflation) and includes an increase
in funding of $35.4 million to increase the personal needs allowance
from $35 to $105 per month for residents in institutional settings.
The
budget continues the Special Medicaid Payment Program for
governmentally owned nursing homes and increases the nursing home
quality assessment by approximately $40.5 million, to a total of $470.7
million. The nursing home quality assessment rate would increase to
approximately $27.26 per non-Medicare patient day ($3.09 per
non-Medicare patient day for high Medicaid volume facilities) which
provides for rate “buyback” of approximately $664.5 million, compared to
$585.4 million in the current year. The net result is an additional
$79.1 million ($4.96 per Medicaid patient day) increase in the amount of
prior year rate reductions to be restored.2
The
budget also includes a transition to a single rate setting period
effective September 1 of each year. Medicaid rates will be established
for a six-month period beginning July 1, 2014, for an eight-month period
beginning January 1, 2015, and for a 12-month period effective
September 1, 2015 and each September 1 thereafter.
Funding
was also provided to assess services, quality of services, and cost
effectiveness as it relates to the SMMC LTC Program as required by CMS
($200,000), for the Aging Resource Centers to assist seniors enrolling
in the SMMC LTC program ($1.3 million), to increase Assistive Care
Services rates ($8.4 million), to serve additional elders on the
Medicaid Long Term Care waitlist who have been classified as a priority
score of five or higher ($12.6 million), and to fund the Program of
All-Inclusive Care for the Elderly (PACE) ($36.5 million). (Funding for
PACE was increased $13 million for 200 slots in Palm Beach county, 30
slots in Lee county, 10 slots in Collier county, 10 slots in Charlotte
county, 125 slots in Miami-Dade county, 125 slots in Broward county, and
100 slots in Pinellas county.) Funding was not provided to develop RUGs
or a RUGs-based payment system for Medicaid.
1
Total funding for nursing home care consists of $550.5 million provided
on Line 241 of the bill for fee-for-service Nursing Home Care paid by
the Medicaid contractor and $2.6 billion on Line 242 of the bill for
Prepaid Health Plan/Long Term Care paid by the SMMC LTC Plans. Total
funding provided for Prepaid Health Plan/Long Term Care is $3.41
billion.
2 These estimates are based on the modeling done
in early January and will vary based upon cost-reports submitted for the
July rate setting.
NURSING HOME LITIGATION REFORM
HB
569 by Rep. Matt Gaetz (R-4) and Senate Bill 670 by Sen. John Thrasher
(R-6) focused on responsible nursing home litigation reform. The bills
moved swiftly though committees with limited debate and little
opposition. On April 24, CS/CS/SB 670 passed the Legislature by a vast majority and now awaits the Governor’s signature. FHCA
has been in ongoing discussions with the Governor’s office and all
indications are that he will sign the bill into law, which would become
effective immediately.
This
legislation was a result of months of behind the scenes negotiations
between FHCA and members of the Florida Justice Association to develop
language that would be agreeable to House and Senate sponsors, as well
as leadership, along with other interested stakeholders. FHCA’s strong
relationships with legislators; partnerships with consumer and business
advocacy groups, including AARP, the Florida Chamber of Commerce and
Associated Industries of Florida; effective media relations; and an
extensive grassroots advocacy network were each a significant force in
the passage of this legislation.
The bill will introduce realistic and responsible limits to lawsuits against nursing homes and will:
- Ensure
that residents can pursue lawsuits against those directly at fault for
negative events, while preventing claims against passive investors and
others who have nothing to do with the incident.
- Require
a trial court to hold a hearing and weigh admissible evidence before a
punitive damage motion can move forward, clarifying the process without
changing any standards.
- Utilize
the regulatory process to ensure that judgments are paid by giving the
state Agency for Health Care Administration the authority to revoke the
license of any nursing home operator who doesn’t pay a final judgment,
arbitration award or settlement.
- Establish a workable framework for providing appropriate medical records to family members.
Related legislation also passing the Legislature and awaiting the Governor's signature is CS/CS/SB 1012
by Sen. Garrett Richter (R-23). One provision of this legislation
created a new section of law stating that a financial institution is not
civilly liable to a third party for the actions or operations of a
person solely by virtue of extending a loan or a line of credit to such
person.
CERTIFICATE OF NEED
Certificate
of Need (CON) reform was a priority for FHCA, given that the current
CON law was set to expire in March of 2014, when the Statewide Long Term
Care Managed Care Program became fully effective. In the fall of 2013,
FHCA reconvened its Certificate of Need task force, which offered
legislators recommended language to update the certificate of need
process to reflect changes in elderly demographics in our state and our
changing long term care delivery system. As a result, SB 268 was filed
by Sen. Denise Grimsley (R-21) and HB 287 was filed by Rep. Frank
Artiles (R-118).
The two identical bills passed unanimously in all committees and ultimately CS/CS/HB 287 was passed unanimously out of the House and the Senate and now awaits the Governor’s signature. CS/CS/HB
287 by Rep. Frank Artiles/Sen. Denise Grimsley provides greater
flexibility for nursing homes to move beds to follow population trends
and creates incentives for nursing home providers to replace older
nursing homes with modern buildings to meet the needs of Florida’s elder
population. Specifically:
Section
1 of the bill requires CON rule changes to encourage the construction
of new nursing homes and to provide for flexibility in creating new
facility construction.
- Reduces the goal subdistrict average occupancy from 94% to 92%.
- Allows
aggregation of bed need across subdistrict lines for purposes of
proposing new nursing homes, with direction as to location when need is
aggregated.
- Gives
an additional positive factor to an applicant who will
delicense/relinquish beds in an over-bedded area of the state when
applying for a CON in an area where need is published.
Section
2 of the bill makes statutory changes that modify and/or add provisions
for projects that are subject to either expedited CON review or are
exempt from CON review.
- Allows
expedited CON review of nursing home replacements within a 30 mile
radius, without regard to district lines. If the replacement is proposed
for a different subdistrict, the target subdistrict must have at least
an 85% occupancy level.
- Allows
expedited CON review of nursing home replacements beyond 30 miles in
the same subdistrict or in geographically contiguous subdistricts within
the same district as long as the target subdistrict has an 85%
occupancy level.
- Allows
expedited CON review of nursing home bed relocations to either another
facility or to establish a new facility within a 30 mile radius, without
regard to district lines. The total number of beds in the state may not
increase.
- Establishes
an exemption to add up to 30 beds or 25% of the licensed bed complement
of a facility being replaced with a new building.
- Reduces
the required 12-month occupancy from 96% to 94% for the addition of
small numbers of nursing home beds for existing facilities to be exempt
from CON review. (Additions are allowed in increments of 10 beds or 10
percent or for Gold Seal 20 beds or 10 percent of the number of licensed
beds, whichever is greater.)
Section 3 establishes a new limitation on nursing home certificates of need.
- Limits
the approval of certificates of need for new nursing home beds for the
three-year period from July 1, 2014 to June 30, 2017 once the cumulative
number of beds approved equals or exceeds 3,750 during a batch cycle.
Section
4 deletes the statutory language related to the moratorium on the
construction of new nursing home beds which is repealed per current
statute upon statewide implementation of the Medicaid managed care
program.
ASSISTED LIVING FACILITIES
Assisted Living Facility reform failed to pass the Legislature for the third year in a row. While the Senate version (SB 248 by Sen. Eleanor Sobel, D-33) passed out of the Senate in mid-April, the House version (HB 573
by Rep. Larry Ahern, R-66)) had language that did not match. Rep. Ahern
went above and beyond expectations to keep the legislation moving until
the very last minute; however, lawmakers were unable to work out their
differences before time ran out and the 2014 session drew to a close.
Members
of the Association’s FCAL Committee took an active role in advocating
for the passage of ALF reform this session, offering recommended
language and reviewed proposals as legislation was developed and
amended. FHCA’s ALF members also took part in our grassroots advocacy
initiatives, meeting with lawmakers during a special ALF Lobby Day;
testifying before committees on the importance of passing legislation;
offering guest editorials to the media to raise the public’s awareness
about the issue; and sending dedicated emails to lawmakers about the
importance of passing ALF reform. FHCA made this issue a priority this
year and gave our best efforts, and we are grateful to our members for their continued support and encouragement throughout the process.
It’s
too soon to tell if legislators will revisit ALF reform in 2015. In the
meantime, FHCA’s ALF members will continue their focus of providing
Florida’s seniors high-quality care that respects their desire to age
with dignity.
PEDIATRIC SPECIALTY CARE CENTERS
In
January, the Senate Committee on Children, Families and Elder Affairs
took up the issue of medically fragile children, with particular
discussion surrounding children who are cared for in pediatric nursing
facilities. The discussion stemmed from the lawsuit filed last year
against the Agency for Health Care Administration (AHCA) by the U.S.
Department of Justice. AHCA Secretary Elizabeth Dudek defended the
agency's position regarding the less than 150 children with significant
disabilities who reside in these facilities.
Members
of FHCA’s Pediatric Task Force participated in the Senate meeting,
offering important information about the children cared for in these
facilities, including their medical complexities, as well as the
rehabilitative services they provide to help children gain the ability
to return home to their families.
Throughout
session, FHCA continued its role of advocating on behalf of its
pediatric nursing facility members, both in the Legislature and the
media. FHCA was able to prevent unfriendly amendments which would have
impeded on a parent's right to choose the setting in which their child
would receive services and would have moved the children being cared for
in pediatric nursing facilities into foster care.
FHCA’s
Pediatric Task Force will continue its work over the summer to ensure
this membership segment is well represented by the Association.
REGULATORY
This
year, the Legislature filed 1,812 bills, with just 264 passing both
chambers. As often happens near the end of session, good bills get stuck
on the calendar and "trains" are created to band together those issues
that are somewhat related and important to many legislators. Such was
the case with FHCA's regulatory issues.
Language related to the Governor's Gold Seal Award program
would have allowed for a facility with verified complaints reported to
the Office of the State Long-Term Care Ombudsman to be recognized as a
Gold Seal Program Facility if within the 30 months before the
application was submitted, those complaints were resolved.
Changes to the Board of Nursing Home Administrators would
have allowed for a candidate to qualify for the NHA examination with a
Master’s Degree in certain areas, not just a Bachelor’s Degree and would
have increased the number of administrators on the Board of NHA from
three to four (currently, this is the only board within the Department
of Health where the licensed professional is a minority on the board).
FHCA
worked tirelessly until the final hours of session to identify vehicles
to support these important issues. These changes were tacked on as
amendments to nearly every bill moving on the last day; however, the
sheer volume of the health care train caused legislation to die when the
Senate failed to take it up at 10:35pm on Friday.
FHCA recognizes the importance of these changes to our members and expects them to be included in our 2015 legislative agenda.
Unfriendly Legislation
SB 1154 by Sen. Darren Soto (D-14)/HB 787
by Rep. Joe Saunders (D-49) would have required a nursing homes to
display posters and send letters to family members indicating they are
on the AHCA "Watch list." SB 400 by Sen. Dwight Bullard (D-39)/HB 563
by Rep. Hazelle Rogers (D-95) would have mandated AHCA to impose a $1
million civil penalty should the agency have determined that a resident
died as a result of abuse and neglect; however, these bills failed to
get any traction this year as well. FHCA was able to prevent these
unfriendly bills from advancing, thanks to our members’ success with
educating legislators about the challenges they would have imposed.
Other Tracked Bills
While
going farther in the process than ever before, the Legislature again
failed to authorize ARNPs to prescribe controlled substances or to
initiate involuntary Baker Act transfers (HB 829 by Rep. Daphne Campbell, D-108/SB 1544 by Sen. Oscar Braynon, D-36)
Additional
legislation related to ARNPs would have expanded the scope of nurse
practitioners, giving them authority to prescribe certain medications
without physician supervision (SB 1352 by Sen. Denise Grimsley/HB 7071
by Rep. Cary Pigman, R-55). The legislation faced heavy opposition from
the Florida Medical Association, however, and it died in the Senate.
Legislation to increase regulation regarding Hepatitis C screening (SB 824 by Sen. Arthenia Joyner, D-19); HIV testing (HB 1225 by Rep. Joe Saunders/SB 1470 by Sen. Geraldine Thompson, D-12) and infectious disease reporting (HB 647 by Rep. Janet Adkins, R-11/SB 992 by Sen. Aaron Bean, R-) also failed to move far in the business-friendly Legislature.
THANK YOU
The
passage of our top legislative priorities and our ability to preserve
Medicaid funding for nursing home care is attributed to the tremendous
work of FHCA's members, staff and lobby team.
FHCA
is proud to be the state's leading advocate for long term care and to represent the majority of Florida's nursing homes, as well as a core group of assisted living facilities, for the important work they do. On behalf of
the entire team at Florida Health Care Association, we want to thank our members for their
ongoing encouragement, support and resources that allow us to advocate
on their behalf.
