Florida’s Advocate for Long Term Care
Providers and the Elders They Serve

2011 Legislative Session Wrap Up Report

In the early morning hours on Saturday, the Legislature ended the 2011 session with the approval of a $69.7 billion budget set to take effect July 1, 2011. Legislators filled the state’s nearly $4 billion budget shortfall by making deep cuts to health care, schools and transportation, as well as pushing through "transformational" Medicaid reform, a teacher merit pay system and an overhaul of property insurance. Bills limiting abortion and constitutional amendments that would revamp the court system and would impose a cap on state revenues also passed. While more than 2,000 bills were filed this session, only 285 total bills passed according to numbers compiled by the Florida Senate. That's the lowest total in the last 10 years, with the exception of 2009, when lawmakers were forced to return in a special session to pass the state budget and budget conforming bills. Below is a wrap-up of how long term care providers fared this session:

Medicaid Reimbursement

The budget (SB 2000) provides $2.727 billion for nursing home care which reflects a 6.5 percent cut ($187.5 million) to nursing home funding, which amounts to an average reduction of $288,932 annually per facility or $12.07 per Medicaid patient day. FHCA has developed documents estimating the impact of the 6.5 percent reduction on your facility, including facility-specific impacts by House and Senate district and summaries by county, which you can access by clicking here.

The budget does not eliminate nor modify bed hold policy and funding. Adult vision, hearing and dental services were fully funded. Also included in the budget are $26.1 million for the Assistive Care Services, $35.1 million for the Assisted Living Facility Waiver, $355.8 million for the Capitated Nursing Home Diversion Waiver and $14.3 million for the Program of All-Inclusive Care for the Elderly (PACE). Nursing home funding for case load growth was utilized to fund 1,000 additional Diversion Waiver slots, 1,250 additional Aging and Disabled Waiver slots and 275 additional PACE slots. And finally, there were no funding cuts to the Medically Needy and MEDS-AD programs.

The budget conforming bill (SB 2144) includes language that modifies staffing to lower the combined average weekly nursing and CNA staffing standard from 3.9 to 3.6 hours per patient day. The daily nursing standard of 1.0 hours per patient day remains unchanged, and the daily CNA staffing standard will be reduced from 2.7 to 2.5 hours per patient day. Additionally, the language related to rate setting defining the direct care component was modified. Previously, the statute specifically excluded the minimum data set and care plan coordinators' costs from inclusion in the direct care subcomponent. The revised language only excludes the administrative portion of these positions. FHCA has developed documents related to the changes in the Nursing Home Staffing Requirements on our website, including minimum staffing charts. Click here for details.

The conforming bill also expands the Quality Assessment to the maximum federal allowance which will increase the total annual assessment from $349 million to $381 million, allowing most of the prior year rate cuts to be bought back. The bill also allows AHCA to consider certain mitigating circumstances before licensure applications are denied due to previous adverse actions. The circumstances for consideration include: corrective action, integrity agreements and performance and compliance since the adverse action. This amendment was necessary to prevent an unintended consequence of legislation passed in prior years that would have led to the tragic closure of vital nursing homes and hospitals providing excellent care in Florida. And finally, the bill requires that AHCA shall establish rates at a level that ensures no increase in statewide expenditures resulting from an increase in the weighted average rate paid to certain providers, including nursing homes. The Legislature will be required to specifically appropriate funds annually for rate increases.

Medicaid Reform

In the final week leading up to the end of the 60-day session, legislators held closed negotiations before reaching an agreement on how to overhaul the state’s $22 billion Medicaid program. HBs 7107  and 7109 passed along mostly party lines, and FHCA is pleased to report that the final legislation includes most of the important long term care provisions that were developed by the Association’s Long Term Care Reform Task Force and adopted by the FHCA Board of Directors and Our Florida Promise Steering Committee. Below is an analysis of what's included in the final legislation:

  • Establishes the statewide, integrated managed care program for all covered Medicaid services, including long term care services.
  • AHCA shall begin implementation of the long term care managed care program by July 1, 2012 (required to provide notice of invitations to negotiate), with full implementation in all regions by October 1, 2013.
  • Medicaid recipients 65 years of age or older or eligible for Medicaid by reason of a disability and determined by the CARES Program to meet the requirements for nursing facility care are eligible.
  • All Medicaid recipients who are either residing in a nursing facility or enrolled in a Medicaid waiver program on the date long term care managed care plans become available in their region are automatically eligible to participate for up to 12 months without being re-evaluated for their need of nursing facility care.
  • Establishes eleven (11) regions with a minimum of two plans for each region.
  • Plans must offer network contracts to all nursing homes, hospices and aging network service providers that have previously participated in home and community-based waivers in their region for the initial period between October 1, 2013 and September 30, 2014. Plans may exclude providers after this period for failure to meet quality or performance criteria.
  • Nursing homes and hospices that are enrolled Medicaid providers must participate in all eligible plans selected in their region.Plans shall monitor quality and performance of each participating provider using measures adopted by and collected by AHCA and any additional measures mutually agreed upon by the provider and the plan. (This provision should prevent duplicative surveys.)
  • Plans must pay nursing homes an amount equal to the nursing facility-specific payment rates set by AHCA; however, mutually acceptable higher rates may be negotiated for medically complex care.
  • For recipients residing in a nursing facility and receiving hospice services, the plan must pay the hospice provider a per diem rate set by AHCA minus the nursing facility component and shall pay the nursing facility the applicable state rate.
  • Plans must ensure that electronic nursing home and hospice claims that contain sufficient information for processing are paid within 10 business days after receipt.
  • AHCA must establish nursing facility specific payment rates for each licensed nursing home based on facility costs adjusted for inflation and other factors as authorized in the General Appropriations Act.
  • Payments to long term care managed care plans shall be reconciled to reimburse actual payments to nursing facilities.AHCA must establish hospice payment rates and payments to long term care managed care plans shall be reconciled to reimburse actual payments to hospices.
  • AHCA shall periodically adjust payment rates to the managed care plans to account for changes in the level of care for each managed care plan and shall make an incentive adjustment to encourage the increased use of home and community-based services. (Specific percentage adjustments are detailed in the bill until such time that no more than 35% of the plan’s enrollees are placed in institutional settings.)
  • By August 1, 2011, AHCA must establish the technical advisory workgroup to assist in the development of the long term care managed care program. The workgroup will address the following:

1. Method of determining Medicaid eligibility.
2. Method for managing Medicare coinsurance crossover claims.
3. Uniform requirements for claims submissions and payments, including electronic funds transfers and claims processing.
4. Process for enrollment of and payment for individuals pending determination of Medicaid eligibility.

  • Continues the Comprehensive Assessment and Review for Long Term Care Services (CARES) program. Allows for the contracting of any function of the CARES program.
  • Effective July 1, 2012, AHCA may not impose conditions or sanction on providers for failure to meet CON conditions related to minimum Medicaid occupancy.
  • Extends the CON moratorium on nursing home beds.

Tort Reform

Despite a valiant effort by FHCA members, staff and lobby team members, nursing home tort reform did not make it to the Governor's desk this year. While the environment seemed right given the inaugural remarks of Governor Rick Scott (noting litigation as one of three “axis of unemployment”) and the Republican supermajorities in both the House and the Senate, just a handful of significantly pared down bills focused on limiting lawsuits passed this session. FHCA wants to thank you for the countless hours you spent contacting your legislators and making trips with your staff to the Capitol to show support of these bills when they were heard in committee. FHCA will continue educating legislators on your behalf about the importance of nursing home tort reform and the fact that lawsuits do nothing but take precious resources away from patient care.

Regulatory Items

Nursing Home/Assisted Living Deregulations: Unfortunately, HB 119 by Rep. Matt Hudson (R-101) died in House messages when Friday’s midnight legislative extension was granted only for the budget. Because HB 119 was the only remaining health care bill still viable in the final days of session, it had over 30 amendments filed and grew to nearly 200 pages. Over the summer, FHCA’s Legislative Committee will work on new strategy options for the 2012 session to continue our efforts to streamline regulations and eliminate unnecessary duplications.

Background Screening: SB 1992 by Sen. Ronda Storms (R-10) passed. Upon signature by the Governor, changes to the background screening requirements will become effective July 1, 2011. Prior to the start of the legislative session, FHCA convened a coalition of health care and other providers to identify recommended fixes to current background screening requirements. One of the biggest challenges to the current system was a lack of consistency and sharing by the multiple state agencies involved in background screening. The bill includes language to require the multiple state agencies to create a workgroup for the “purpose of developing a work plan for implementing a statewide system for streamlining background screening processes and sharing background screening information.”

At the request of FHCA, the bill created s. 435.06(2)(d) to allow an employer to hire an employee in a position that requires background screening before the employee completes the screening process; however, the employee may not have direct contact with vulnerable persons until the screening process is completed. Another FHCA requested amendment changes law in s. 464.203 so that persons who have passed background screening within 90 days before applying for a nursing assistant certificate do not have to undergo a second repetitive background screening.

The Agency for Health Care Administration was also granted authority to modify the timeline for the Level II screening of persons as required in s. 408.809 (see below)

Last screening was conducted on or before: Must be rescreened by:
12/31/2003 7/31/2013
1/1/2004 - 12/31/2007 7/31/2014
1/1/2008 - 7/31/2010 7/31/2015
  5/2011 Excerpted by FHCA from 408.809(5)      

Occupational Licensure Taxes: HB 311 by Rep. Ken Roberson (R-71) is also headed to the Governor’s desk for signature. Prior to the legislative session, FHCA heard from a number of members whose cities were considering imposing an occupational licensure tax on CNAs working in their facility. It became clear that a legislative fix was the best solution for preventing this from happening statewide. This good bill prevents any municipality or county from passing new ordinances to impose an occupational licensure or “business” tax on certain employees, including your CNAs, working within business entities already paying the tax. Existing ordinances are not affected. Thanks to our members who brought this important issue to the forefront.

LTC Ombudsman: While HB 1171 didn’t achieve final passage this year, FHCA looks forward to working with Florida’s new Long Term Care Ombudsman, Jim Crochet, to continue an open line of communication and identify ways to eliminate the ombudsmen’s duplication of the AHCA's survey role and help them focus on their primary role of resident advocate.

Assisted Living Facilities

HB 4045 by Rep. Matt Hudson (R-101), which combines five ALF repealer bills and reduces regulations for ALFs, passed and will take effect July 1, 2011. This bill repeals the requirement that AHCA must distribute lists of ALFs sanctioned or fined to certain agencies and departments; repeals DOEA authority to collect information about the cost of providing certain services in ALFs and repeals a provision authorizing a local subsidy; removes the DOEA requirement to submit to the Legislature for review and comment all proposed DOEA rules establishing standards related to resident care; repeals the AHCA requirement to report post-survey results to the local Long Term Care Ombudsman Program and the local library; and removes the requirement that ALFs submit monthly liability claim reports.

Legislators did not pass additional ALF bills tracked by FHCA, including:

  • HB1295/SB 1458, a comprehensive ALF proposal that would have, among other items, combined the one-day and 15-day adverse incident reporting requirements into a single, seven-day report.
  • HB 1137/SB 1838 would have created a pilot project where participating ALFs are exempt from the survey process.
  • HB 4059/SB 684 would have repealed the 2010 law requiring ALFs to have a functioning automated external defibrillator (AED) at all times. The 2010 mandate goes into effect on July 1, 2011.

Preventing Harmful Legislation

FHCA strongly supports the use of arbitration as a reasonable and intelligent option to resolve legal disputes. Over the summer, the Association worked with Senator Steve Wise (R-5) and our legal consultants to develop several model agreements that providers may use in the nursing home setting. FHCA also provided more information about the use of arbitration agreements via the Pulse newsletter and the website, and additional background will be provided during upcoming continuing education sessions. In the end, FHCA is thankful to Sen. Steve Wise who agreed not to sponsor anti-arbitration legislation.

Other Tracked Bills

Pill Mills: HB 7095 includes new penalties for doctors who overprescribe narcotics, changes reporting requirements for the Prescription Drug Monitoring Program from 15 days to seven, and requires criminal background checks of those who have access to it. It also blocks many physicians from prescribing addictive drugs while keeping intact a statewide prescription drug database. FHCA tracked this bill closely, which creates new language in s. 456.44 that describes the requirements for physicians who prescribe controlled substances for chronic nonmalignant pain. Facilities should ensure resident physicians are aware of these new requirements.

Unemployment Compensation: FHCA monitored several issues with business groups on behalf of members, including the Legislature’s move to make sweeping changes to unemployment compensation benefits. HB 7005 creates a tiered system linking the unemployment rate to benefits. The new maximum for benefits is 23 weeks, only if the jobless rate reaches 10.5 percent or higher. Benefits could be lowered down to 12 weeks if the rate reaches five percent or lower. The bill also makes it easier for businesses to win an appeal of a claim and is estimated to save companies $18 per employee. Mike Miller, FHCA’s Labor Relations Consultant, will provide more information on these changes in an upcoming issue of the Pulse newsletter.

Immigration Reform: Legislators failed to pass immigration reform (SB 2040/HB 7089), which would have required some public or private employers to use the federal government's E-Verify system.

Power of Attorney: SB 670 by Sen. Arthenia Joyner (D-18) passed and will modify the power of attorney law by adding new requirements for documents signed after October 1, 2011. Rep. Shawn Harrison (R-60) served as sponsor of the House companion bill. FHCA will provide additional information about this topic in an upcoming Pulse newsletter article. In the meantime, we recommend that you consult your legal counsel for guidance on this issue.

Legislative Scorecard

FHCA will be compiling our 2011 Legislative Scorecard in the near future to measure lawmakers’ support for the Association’s priorities. Their votes on the issues that impact our profession will be calculated on a five-star rating scale, and each legislator will receive a copy. FHCA members will also receive a copy of the Scorecard which will be a useful tool as you continue building or strengthening relationships with your local lawmakers throughout the summer.

Thank You

The 2011 legislative session was tough on nursing homes, but there is no question it could have been much worse. Florida was facing a $4 billion budget shortfall and many providers saw significant cuts, including hospitals which took a 12 percent cut ($510 million). Prior to the start of the 2011 session, we heard discussions of up to 15 percent in cuts to nursing homes' Medicaid reimbursement rate. You’ll recall when the session began and FHCA first reported on the initial budgets, the House and Senate proposed a 7 percent and 5 percent nursing home funding cut, respectively, with the House increasing their proposed cut to 8.5 percent once conferencing on the final budget began. Your letters, phone calls, emails and visits with lawmakers in the final days made a huge difference, as we were able to secure important protections for long term care in the final Medicaid reform package, reduce the funding cuts down from the House conference package by $58 million and obtain staffing flexibility to help you offset your costs.

Whatever role you played this session, we want to thank you for standing with us and speaking up for long term care. Over 400 members traveled to Tallahassee throughout the 60-day session to meet with legislators, not only as part of our ongoing Lobby Wednesdays, but when we called you to action to stand up in support or testify during committee meetings. You spoke to the media to educate them about our issues and also helped generate over 15,000 emails to lawmakers on items related to Medicaid reform, the budget and tort reform.

As we move forward, we cannot let up in our efforts to reach out to legislators and to legislative candidates. Remember, the 2012 legislative session starts in January due to the redistricting, so we encourage you to take advantage of the upcoming months to invite lawmakers into your facilities and help them better understand the important work you do in caring for our state’s frail elders.

J. Emmett Reed, CAE
Executive Director