Glenn Burhans, Jr.
Tallahassee
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Marco Paredes, Jr.
Tallahassee
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Bridget Smitha
Tallahassee
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Robert Walters
Tallahassee
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2022 Changes to Florida Medicaid and the Healthcare Industry
Medicaid
During the 2022 Legislative Session, Florida’s Medicaid program saw significant changes with the passage of SB 1950 and HB 855. Florida’s Medicaid program is the health care safety net for low-income Floridians and is administered by the Agency for Health Care Administration (“AHCA”). The program is financed by federal and state funds. Florida serves most of its Medicaid recipients using managed care, through the Managed Medical Assistance (“MMA”) program.
SB 1950 changes the number of Medicaid managed care regions across the state from 11 to 9. The change takes effect after the expiration of the existing managed care contracts, set to expire on December 31, 2024. AHCA advocated for the changes, citing the need for greater efficiency in administering the Medicaid program. In addition to the reduction in regions, SB 1950 will also streamline the procurement process by allowing AHCA to select eligible managed care plans through a single statewide procurement instead of by region. SB 1950 makes other plan requirement changes to address systemic health issues such as tobacco and opioid addiction.
HB 855 established collection and reporting requirement changes for managed care plan providers. Current law requires plans participating in the MMA program to collect and report measures specified by AHCA on an annual basis. AHCA monitors plan performance through a combination of performance measures developed by the National Committee for Quality Assurance (“HEDIS” measures), the federal Centers for Medicare and Medicaid Services (CMS), and AHCA. Plans are also contractually obligated to provide certain portions of the Adult and Child Core Sets developed by CMS. Beginning in calendar year 2025, the bill requires each MMA plan to collect and report all of the Adult Core Set behavioral health measures, which are not currently required by AHCA. Beginning in calendar year 2026, the bill requires each MMA plan to stratify all performance measure data by recipient age, race, ethnicity, primary language, sex, and disability status.
The new laws were signed into law by Governor Ron DeSantis in April, but took effect July 1, 2022.
AHCA has also begun the rulemaking process to exclude certain treatments currently available to Florida Medicaid customers to treat gender dysphoria. The proposed rule seeks to prohibit Florida Medicaid from covering puberty blockers, hormones and hormone antagonists, sex reassignment surgeries, and any other procedure that alters primary or secondary sexual characteristics for the treatment of gender dysphoria.
Telehealth
Access to and use of telemedicine has been steadily increasing over the last decade, especially over the last few years during the COVID-19 pandemic. Following a 2020 Department of Health Emergency Order expanding access to telemedicine and recognizing the steady increase in use of telemedicine, SB 312 was passed and signed into law by Governor DeSantis on April 6, 2022. The law took effect on July 1, 2022. The new law allows a telehealth provider to issue a renewal prescription for a controlled substance listed in Schedule III, IV, or V of s. 893.03, F.S., through telehealth. This renewal must be within the scope of the telehealth provider’s practice and in accordance with other state and federal laws. Under preexisting law, Florida’s telehealth providers were prohibited from prescribing any controlled substances through telehealth, unless the prescription met one of the exceptions listed below. The bill narrows this prohibition to the prescribing of Schedule II controlled substances through telehealth, except under the following specific circumstances:
- The treatment of a psychiatric disorder;
- Inpatient treatment at a hospital licensed under Chapter 395, F.S.;
- The treatment of a patient receiving hospice services as defined in s. 400.601, F.S.; or
- The treatment of a resident of a nursing home facility as defined in s. 400.021, F.S.
Medical Marijuana
The 2022 Legislative Session saw changes to Florida’s Medical Marijuana Use statute through SB 768, including that DOH may not renew the license of a Medical Marijuana Treatment Center (“MMTC”) that has not begun to cultivate, process, and dispense marijuana by the date that the MMTC is required to renew its license. Other changes include authorizing DOH to select and test samples from MMTCs and marijuana testing labs to ensure appropriate levels of marijuana potency are met and safe for human consumption, which includes testing the accuracy of THC and cannabidiol concentrations on labeled products.
DOH is required to adopt rules to establish variations of no greater than 15 percent between labeled concentration amount and what is tested. Additionally, DOH now has the authority to test certain marijuana delivery devices, such as ensuring the safety of vape pens or edibles. The new law also exempts DOH employees from criminal prosecutions for acquiring, possessing, testing, transporting, or lawfully disposing of marijuana and devices under certain circumstances.
Proposed Changes to Florida’s Administrative Procedures Act
During the 2022 Legislative Session, SB 536 was proposed by Senator Diaz to amend Chapter 120, F.S., known as the Florida Administrative Procedures Act (“APA”). The APA contains a uniform set of procedures that state and some local agencies must follow when exercising rulemaking authority delegated by the Legislature. The proposed legislation sought to specify the economic impacts and compliance costs an agency must consider in creating a statement of estimated regulatory costs (“SERC”), and require each agency to have a website where each of its SERCs may be viewed in their entirety. The bill also sought to expand the amount of disclosures each agency would be required to submit to the Department of State for each notice of rulemaking.
Previous versions of the proposed legislation also created a new procedure for “repromulgating” rules. It would have required each agency to review its rules for consistency with the powers and duties granted by the agency’s enabling statutes. If, after reviewing a rule, the agency were to determine substantive changes to update a rule are not required, the agency would have to repromulgate the rule. The intent of SB 536 appears to have been to create burdensome undertakings for state agencies to promulgate rules as a way to create a legislative check on the “administrative state.”
Though these bills did not pass during the 2022 Session, it is likely that similar legislation will be proposed again next year. Our team will continue to monitor not only the legislation proposed that could impact the APA, but also the rules promulgated in the state agency rulemaking process.
Contact us should your organization or business need assistance with monitoring legislation or rulemaking relating to any of the regulating Florida state agencies.
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Registration May Be Required for Non-profits that Solicit Funds
The Florida Department of Agriculture and Consumer Services (“FDACS”) recently announced its intent to investigate at least one 501(c)(4) non-profit corporation for potential violations of Chapter 496, F.S., which sets forth requirements for those soliciting both monetary and in-kind donations to register with FDACS. Chapter 496, F.S., the Solicitation of Contributions Act, generally requires anyone who solicits donations from a location in Florida or from people in Florida to register with FDACS if not otherwise exempt, and to renew that registration annually.
Chapter 496 is often thought to apply narrowly to traditional, tax-exempt 501(c)(3) charities; however, as the news of the recent investigation suggests, FDACS’s regulatory purview is often broad enough to include 501(c)(4) and 501(c)(6) non-profits and corporations that solicit donations. If you have any questions or concerns regarding whether your organization or company should be registered with FDACS under Chapter 496, F.S., or whether a statutory exemption may apply, please contact us to help guide you through this new development.
Florida’s Public Record Laws and the Trade Secret Exemption
Florida business entities are frequently required to submit financial information to either state or local agencies as part of licensing applications, certain types of proposals, or part of certain routine statutory reporting requirements. This disclosure of financial information often creates uneasiness for the business due to Florida’s broad public record laws. Businesses are fully aware their competitors can simply submit a public record request and obtain information that would be advantageous to their competitors.
Despite Florida’s broad public record laws, Florida’s agencies are also mindful of the financial harm that can be caused through the disclosure of certain financial information to governmental entities. The Florida Legislature also recognized this risk when it created criminal penalties for the improper disclosure of “trade secrets,” and specifically exempted trade secrets from the public records law.
Section 688.002(4), F.S., defines trade secrets broadly as “information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) [d]erives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) [i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
To assert that documents ordinarily treated as confidential that are submitted to governmental entities are “trade secrets,” the business must mark the document to identify it as confidential trade secret information. By putting the agency receiving the document on notice of its confidentiality, if a public records request is received, the agency must either notify the business that it intends to disclose the information or withhold disclosure based on its own determination that the information meets the definition of a trade secret. At that point, if the agency notices its intent to disclose the marked documents, the business has the ability to contest that disclosure in court. Florida courts have found that when businesses can demonstrate how their records or financial information in possession of a state or local agency are protected trade secrets, disclosure is not permitted.
If you have any questions or concerns regarding whether your organization or company may employ Florida’s trade secret exemption in its submission of sensitive documents to a Florida state or local agency, please contact us to help guide you through the process.
Florida Updates its Election Security Laws
Florida had a generally uneventful primary and general election season in 2020. During subsequent Legislative Sessions, Governor DeSantis and the Republican-led Legislature sought “election security reforms” relative to “out-of-state influences.” In 2022, with the passage of SB 524, the Legislature adopted sweeping reforms that included creating the Office of Election Crimes and Security (“OECS”) within the Florida Department of State. The OECS will have special officers to investigate election law violations, including the new and expanded election offenses created by SB 524.
In addition to a new election police force, SB 524 expanded the Department of State’s requirements to purge voter registration lists by requiring “inactive voters” to confirm their addresses prior to being restored as an “active” voter. The new law also created and increased criminal penalties for activities of voters, public officials, and campaign volunteers including:
- Expanding a criminal penalty for early disclosure of election results and requiring authorized observers of vote-by-mail ballot duplication to sign an affidavit acknowledging they are subject to the penalty.
- Increasing and creating additional penalties that may be assessed against a third-party voter registration organization for certain violations.
- Increasing criminal penalties for ballot harvesting and crimes related to ballot petition signatures.
SB 524 likewise expanded the prohibition against the use of private donations for election-related expenses to apply to any kind of expense, including but not limited to the costs of related litigation. This prohibition was originally created after the 2020 election in response to different public and private companies such as Facebook, Inc. donating to underfunded Supervisor of Elections offices. The new law also conforms the mailing and canvassing timeframes for all-mail-ballot elections to those for vote-by-mail ballots in regular elections, and requires county commissioners of single-member districts to run for election after each decennial redistricting. The Department of State is currently in the rulemaking process to implement these election reforms.
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Special Session 2022D: Property Insurance and Building Safety
Property Insurance
Given many years of rising property insurance bills, and constant calls from leaders around the state for action, the Florida Legislature passed SB 2D to address both short-term and long-term issues surrounding Florida’s property insurance industry. Several immediate short-term solutions include:
- $2 billion in reinsurance relief through the Reinsurance to Assist Policy (RAP) program to benefit policyholders over the next two years.
- Requiring insurance companies to file a supplemental rate filing once enrolled in the program to provide relief to policyholders.
- $150 million for the My Safe Florida Home (MSFH) program to provide grants to Florida homeowners for hurricane mitigation inspections and for retrofitting single-family homes that meet certain criteria.
To address the long-term solutions, SB 2D includes:
- Prohibiting insurance companies from denying coverage solely based on the age of a roof if the roof is less than 15 years old or if the roof is determined to have at least 5 years of useful life remaining.
- Requiring insurance companies to provide policyholders with a reasonable explanation if they deny or partially deny a claim and providing consumers with greater access to information during the claim adjustment process.
- Limiting the application of contingency risk multipliers in property insurance litigation by only allowing them to be awarded in rare and exceptional circumstances.
- Eliminating the transfer or assignment of the right to receive attorney's fees in property insurance litigation.
Though the bill was signed into law by Governor DeSantis immediately following the Special Session, different provisions have different effective dates. If you have any questions or concerns regarding whether these provisions impact your business, please contact us to help guide you through the new requirements.
Building Safety
After the 2021 Surfside disaster, significant reforms in Chapters 718 and 719, F.S., were proposed during the 2022 Regular Session but failed to pass. The Legislature was able to pass a more streamlined version of the reforms during Special Session 2022D. The main component of SB 4D, signed into law by Governor DeSantis following the Special Session, is the creation of a statewide milestone inspections program that requires building inspections for all condominiums and cooperative buildings that are three stories or higher. For buildings within three miles of the coast, Phase 1 inspections must occur 25 years after initial occupancy and every 10 years after. For all other buildings, Phase 1 inspections must occur 30 years after initial occupancy and every 10 years after. If a Phase 1 inspection reveals substantial structural deterioration, a more intensive Phase 2 inspection is required.
SB 4D also requires condominiums and cooperatives to conduct structural integrity reserve studies for buildings three stories or higher every 10 years to ensure the funding necessary for future structural repairs is available. The new law prohibits waiver of funding for certain structural reserves. Further, it requires developers to complete structural integrity reserve studies for every building that is three stories or higher, and repeals the ability of developers to waive the collection of all types of reserve funds. Finally, all structural inspections reports and reserve studies are required to be part of the associations’ official record and must be provided to potential purchasers of a unit. Legislative action on further reforms for community associations is expected in the next Legislative Session.
Stearns Weaver Miller has a premier Geographic Information System (“GIS”) department which routinely advises clients through comprehensive GIS analysis, data modeling, high-quality map exhibits, data conversion and manipulation, research/forensic mapping, legal descriptions, developing interactive web mapping applications, and 3-D technology for analysis and visualization. The Firm’s GIS department is currently working on creating an interactive dashboard that will allow condominium owners affected by the new requirements in SB 4D to determine when their building could be required to be inspected.
If you have any questions regarding a specific building or project, contact one of our qualified team members to advise you on the potential impacts of the new legislation.
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We are excited to announce that ten attorneys from our Government & Administrative practice group have been recognized in the 2023 edition of Florida Super Lawyers. Additionally, seven attorneys from our group have been recognized in the 2022 Edition of Florida Trend's Florida Legal Elite.
The Super Lawyers list is a rating service acknowledging outstanding lawyers in a particular state. Each state’s list features lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made through a comprehensive statewide process that includes independent research, peer nominations and peer evaluations. Each year a maximum of 5% of lawyers per state are accepted onto the list. Additionally, the Rising Stars list, consisting of candidates either 40 years old or younger or in practice for 10 years or less, recognizes no more than 2.5% of lawyers per state.
Legal Elite is an annual list recognizing the top attorneys in the state, as chosen by their peers. Less than 2% of active Florida Bar members practicing in Florida are selected to appear on the list. A distinguished group of attorneys who have earned consistently top rankings for at least 10 years are recognized in the Legal Elite Hall of Fame. In addition, “Up and Comers” are attorneys under 40 who have exhibited leadership in the law and in their community.
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Health (Hall of Fame)
Commercial Litigation (Hall of Fame)
Environmental & Land Use
Commercial Litigation
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Government & Administrative
Commercial Litigation (Up & Comer)
Environmental & Land Use (Up & Comer)
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Florida Trend's Florida Legal Elite |
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Land Use/Zoning
Land Use/Zoning
Consumer Law
Administrative Law
Business Litigation
Environmental
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Environmental Litigation (Rising Stars)
Tax (Rising Stars)
Employment Litigation: Defense (Rising Stars)
Land Use/Zoning (Rising Stars)
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EXECUTIVE ORDER PERMIT EXTENSION TRACKER |
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View our online tool to track Emergency Orders declaring a state of emergency in Florida. Research whether opportunities exist to extend the expiration of your permits. |
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RECENT STEARNS WEAVER MILLER UPDATES
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7/19/22: USFWS to Revise Critical Habitat Rules For Manatees
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7/15/22: Moving to the Sunshine State? Top Ten Things You Should Know About Florida Family Law
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7/14/22: Hillsborough County Proposes Significant Updates to Comprehensive Plan
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Healthcare Investigations
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Administrative Litigation
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Healthcare/
ALF Projects
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Healthcare Practice Formation
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Construction & Transportation
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Administrative Litigation
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Water Management Districts
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Antitrust/
State AG Practice
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Economic Development & Permitting
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Government Contracts/ Procurement
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Education & Corporate Governance
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Local Governments/
Growth Management
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Consumer Protection/
Data Privacy
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Government Investigations
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Healthcare Regulation/
HIPAA/ACA
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Government/Agency Affairs & Policy
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Life Sciences/ Licensure & Regulatory
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Licensure, Election Compliance & IP
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Banking & Insurance/Litigation
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Administrative Litigation
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Sunshine Law/
Open Meetings
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Regulatory/
Waste Management
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Regulatory &
Ass'n Management
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We frequently collaborate with other Attorneys & Professionals statewide in a multidisciplinary approach to matters benefitting from specialized or technical expertise. |
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Local Government Hearings
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Local Government Comp Plans
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Environmental/
Endangered Species
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*Chris Smith & Ken Metcalf are not attorneys and are not authorized to practice law.
Ken is a highly experienced planner and is AICP certified.
Chris is a highly experienced GIS analyst.
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About the Government & Administrative Practice Group
Strategically positioned at the crossroads of business and government, our team assists both businesses and government offices through Florida's complex legal and regulatory landscape. Our statewide team of attorneys and professionals have diverse collective experience and full-service capabilities to assist in every segment of a project from start to finish, with experience in nearly every industry affected by Florida regulation. We are a multi-disciplinary, collaborative firm well-versed in all aspects of Florida, local and federal government & administrative law. We frequently represent clients before Florida and federal agencies and local governments.
About Stearns Weaver Miller
Stearns Weaver Miller Weissler Alhadeff & Sitterson is a full service law firm with offices in Miami, Fort Lauderdale, Tampa, Tallahassee, and Coral Gables, Florida. We offer multidisciplinary solutions with a focus on Litigation & Dispute Resolution, Bankruptcy & Creditors' Rights, Corporate & Securities, Government & Administrative, Labor & Employment, Real Estate, Real Estate Finance, Commercial Finance and Loan Restructuring & Workouts, Land Development, Zoning & Environmental, Marital & Family Law and Tax. For more information, please visit stearnsweaver.com.
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