New Legislation Shakes Up the Florida Healthcare Landscape

The 2023 Florida legislative session came to a close on May 5, 2023. The Legislature was very active and passed approximately 200 bills, including several that will impact the healthcare regulatory landscape. Once approved by Gov. Ron DeSantis, these bills will likely require healthcare providers and facilities to amend their practices in order to comply with the new laws. The following is a summary of some of the significant bills passed during the session.

CS/CS/SB 230: Health Care Practitioner Titles and Designations

CS/CS/SB 230 requires healthcare practitioners, when treating or consulting with a patient, to identify themselves by wearing a name tag evidencing the practitioner's name and profession. If the practitioner is providing services in his or her own office, in lieu of wearing a name tag, the practitioner may prominently display a copy of his or her professional license in a conspicuous space so that it is easily visible to patients. Practitioners must also ensure that advertisements for healthcare services naming the practitioner identify the practitioner's profession and educational degree. Practitioners may be subject to discipline for noncompliance with these requirements. If approved by the governor, CS/CS/SB 230 will take effect July 1, 2023.

CS/SB 252: Protection from Discrimination Based on Health Care Choices

CS/SB 252 generally prohibits business entities, including nonprofit organizations, from discriminating against individuals based on their COVID-19 or mRNA vaccine status. In addition, this bill requires the Agency for Health Care Administration (AHCA) and the Florida Department of Health (Department) to jointly develop standards for the appropriate use of face coverings for infection control in healthcare settings. The agencies must adopt these standards by emergency rules until such time as replaced by rules adopted through the nonemergency rulemaking process. Such standards must be adopted by July 1, 2023. Healthcare practitioners and healthcare facilities licensed by AHCA, including providers holding active healthcare clinic exemption certificates, optical establishments, massage establishments and pharmacies, must adopt facial covering policies by Aug. 1, 2023, if the provider or practitioner requires an individual to wear a facial covering for any reason. Such policies must comply with the standards developed by AHCA and the Department. A practitioner or provider cannot require a person to wear a facial covering for any reason unless it is in accordance with the standards developed by AHCA and the Department and the policies adopted by the practitioner or provider. If approved by the governor, CS/SB 252 will take effect on June 1, 2023.

CS/SB 264 (Chapter No. 2023-33): Interests of Foreign Countries and Storage of Patient Information

CS/SB 264, which was signed into law by Gov. DeSantis on May 8, 2023, prohibits certain foreign interests from purchasing or acquiring land in Florida. In addition, the law requires "health care providers" who use "certified electronic health record" technology to ensure that all patient information stored in an offsite physical or virtual environment, including a third-party computing facility or cloud computing service provider, is physically maintained in the continental United States or its territories or Canada. This stringent storage requirement is somewhat novel. Several states have laws or regulations applicable to the state's Medicaid program that prohibit or place requirements on providers' storage of Medicaid patient data outside of the United States. Significantly, this new Florida requirement is applicable regardless of the source of payment.

"Patient information" is not defined and, thus, could be construed to include any identifiable or non-identifiable information related to a patient receiving treatment from a covered healthcare provider. "Health care provider" is defined broadly to include the following categories of healthcare facilities and practitioners:

• healthcare facilities licensed by AHCA
• most healthcare practitioners licensed by the Department, including medical doctors, doctors of osteopathy, optometrists, podiatrists, chiropractors, pharmacists, physician and anesthesiologist assistants, dentistry, nursing, midwifery, acupuncture, naturopathy, speech-language pathology and audiology, nursing home administration, occupational therapy, respiratory therapy, physical therapy, dietetics and nutrition, athletic trainers, electrologists, massage therapists, clinical laboratory personnel, medical physicists, opticians, hearing aid specialists, genetic counselors, psychology, clinical, counseling and psychotherapy services practitioners, certified radiological personnel and orthotics, prosthetics and pedorthics practitioners
• home health aides
• certain licensed mental health and substance abuse facilities and practitioners, including their clinical and nonclinical staff who provide inpatient or outpatient services
• licensed continuing care facilities
• licensed pharmacies

The storage requirement applies only to healthcare providers who use certified electronic health records; however, many healthcare providers are required or incentivized by federal regulations to utilize certified electronic health records systems.

Additionally, the new law requires that healthcare facilities submitting an initial or renewal application for a license from AHCA attest under penalty of perjury that the applicant is in compliance, and will remain in compliance, with the patient information storage requirement.

The law also requires healthcare providers to ensure that no person or entity who possesses a controlling interest in the provider holds, either directly or indirectly, an interest in an entity that has a business relationship with the following foreign countries of concern:

• People's Republic of China
• Russian Federation
• Islamic Republic of Iran
• Democratic People's Republic of Korea
• Republic of Cuba
• Venezuelan regime of Nicolas Maduro
• Syrian Arab Republic

This also includes any agency of or any other entity of significant control of such foreign country of concern. Healthcare providers must also ensure that no controlling interest holds, either directly or indirectly, an interest in an entity that is a "scrutinized company" subject to Section 287.135, Florida Statutes. This law will take effect on July 1, 2023.

CS/SB 558: Certified Nursing Assistants

CS/SB 558 establishes a new designation of "qualified medication aide" (QMA) for certified nursing assistants (CNA) who meet specified licensure and training requirements and work in nursing homes. The bill allows a nursing home to authorize a registered nurse working in the nursing home to delegate medication administration to a QMA who is working under the direct supervision of the registered nurse.

To obtain the QMA designation, a CNA must hold a clear and active certification as a CNA for at least one year preceding the delegation. A CNA must complete 40 hours of training that consists of the six-hour training course currently required for a CNA to administer medication in a home health setting and a 34-hour course specific to QMAs developed by the Florida Board of Nursing. A CNA must also successfully complete a supervised clinical practice in medication administration conducted in the nursing home. If approved by the governor, CS/SB 558 will take effect on July 1, 2023.

CS/CS/HB 1471: Health Care Provider Accountability

CS/CS/HB 1471 amends the Residents' Bill of Rights by guaranteeing nursing residents the right to be free from sexual abuse, neglect and exploitation. The terms "sexual abuse," "neglect" and "exploitation" have the same meaning as provided in the Medicare rules in 42 C.F.R. Section 483.5. Nursing homes will need to amend their statement of rights and responsibilities to include this information, which is required to be provided to each resident or their representative at or before the resident's admission to the nursing home. In addition, a copy of the revised statement must be provided to each staff member. If approved by the governor, CS/CS/HB 1471 will take effect on July 1, 2023.

CS/CS/HB 1573: Continuing Care Providers

CS/CS/HB 1573 amends several laws governing continuing care retirement communities (CCRC). Specifically, the bill provides for the following:

• allows CCRCs to maintain their escrow accounts in a national bank without a branch in Florida, rather than only institutions with a Florida branch
• permits the release of expansion-related escrow funds when three-quarters of the total units are reserved, rather than when only half of the total units have been paid in full; in addition, the CCRC must submit an attestation concerning use of the entrance fees collected
• reduces the timeline for the Office of Insurance Regulation (OIR) to review and approve expansion applications from 45 days to 30 days
• allows a CCRC to withdraw funds from its debt service reserves without prior approval from OIR under certain circumstances
• expands the list of financial institutions that may supply a provider a letter of credit in order to satisfy the statutory minimum liquid reserve requirements, including institutions without a Florida branch
• revises the conditions under which an individual must pay a penalty for canceling a CCRC contract
• shortens the lookback period for required OIR market conduct examinations
• provides greater transparency for the benefit of authorized resident councils in CCRC operations, budgeting, planning, pricing and OIR examining
• clarifies that a residents' council has the authority to establish and maintain its own governance documents and that residents have the right to participate in resident council matters, including elections
• requires facilities with common ownership to each have their own designated resident representative
• specifies resident representative obligations of good faith as a fiduciary to the residents

CCRCs will need to review their contracts and, if necessary, submit revisions to OIR for approval as required by Chapter 651, Florida Statutes. If approved by the governor, CS/CS/HB 1573 will take effect on July 1, 2023.

Conclusion

Healthcare providers and practitioners will need to review these bills to understand how they will impact their operations. Covered healthcare providers should also review their medical record systems, vendors and contracts relating to record storage, policies, procedures and ownership information to confirm that no controlling interest holds an interest in an entity that has a business relationship with a foreign country of concern or a scrutinized company. Once the bills become law, providers may need to undertake a variety of measures to bring their business operations into compliance.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.