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Competition and Transparency

A rundown of newly passed healthcare legislation begins taking effect July 1

After this spring's legislative session, there were conflicting messages from lawmakers on streamlining competition in healthcare.

"Like any Legislative session, we will likely look back at a number of positive steps forward but also some missed opportunities and challenges that lie ahead. From a physician perspective this session is likely to be remembered for the injection of competition that the Legislature is attempting to deliver through the repeal of Certificate of Need and the expansion of Ambulatory Surgery Centers," said Fraser Cobbe, executive director of Orange County Medical Society and Seminole County Medical Society.

In disappointing fashion, telehealth was hardly addressed, except to gain more accountability over out of state physicians.

"Telehealth legislation has caused some concern, and we missed a real chance to join the vast majority of states that make sure payment mechanisms are tied to the provision of telehealth services. That failure will likely limit expansion of these services to patients in Florida," Cobbe said.

"Finally, while at the same time expressing concern over consolidation in healthcare, the Legislature has passed a number of additional mandates on physician practices which will apply more pressure on expanding overhead and operational costs. While those bills individually are all well intentioned, such as the ePrescribing mandate, office surgery rules, non-opioid alternatives, human trafficking, etc., when taken together they pile on additional compliance costs that continue to build and threaten the viability of small practices. The Legislature will need to address the burgeoning overhead for small independent practices if they want to continue to drive competition in the marketplace," he pointed out.

A look at this year's package

The certificate-of-need process is over. Almost. And sort of.

After years of lobbying for a repeal of the often community-dividing, red-tape clogging CON laws, hospitals reached victory this year with the passage of House Bill 221, landmark legislation for Florida.

On July 1, CON applications will no longer be required for new or expanding general hospitals across the state.

Specialty hospitals have two years before the CON repeal law goes into effect.

Exempt from the CON overhaul: single-specialty hospitals.

"The language has confused some people because the definition of specialty and single-specialty hospitals is very similar," said Cobbe. "Concerning single-specialty hospitals, Florida law prohibits any hospital from being relicensed if more than 65 percent of DRGs are related to (certain) services."

"There was an effort to get rid of that single specialty hospital ban, but ultimately that wasn't successful."

HB221 - Certificate of Need

Repeals CON effective July 1, 2019

  • Specialty hospitals repealed starting July 1, 2021
  • Defined as focusing on specific population: Women's or children's hospitals, psychiatric and substance abuse
  • Repeal does not include single specialty hospitals. (orthopedics, cardiac, oncology) with DRGs over 65 percent of any of these three procedures.


HB-843 Healthcare TRAIN

House Bill 843 was loaded with healthcare regulatory issues covering dental services, Hospital Quality Report Cards, and Florida TRAIN. The key components for hospital administration changes are buried somewhat in the middle.

"The first important note is HB 843 is the change of the 24-hour length of stay in an ambulatory surgery center," explained Cobbe. "As of July 1, you'll no longer have that midnight restriction, where previously in our state, you had to discharge a patient from a surgery center once the clock struck midnight. This language makes it clear that it's 24 hours length of stay from the start of a procedure before having to discharge them."

Specific language deals with pediatric patients that authorize the Agency for Healthcare Administration to establish rules for the length of time in a surgery center.

"The pediatric rules will have to be developed, so there'll be a delay in implementation of length of stay for pediatric patients," said Cobbe. "But for all your adult patients, that 24-hour length of stay will come into effect July 1."

Cobbe anticipates HB 843 will have a major impact on physician members that have interest in ambulatory surgery centers.

"Included in TRAIN legislation, hospitals are required to disclose performance measures for patients admitted to their facility within a certain time frame," said Cobbe.

Information will be required to provide data about performance measures related to infection, readmission and other issues.

"There are also requirements on hospitals to provide notification of patient status change, so if you're going to change a patient's status from inpatient observation or vice versa, they're required to notify the patient and their treating physician," explained Cobbe. "Other language requires hospitals to let patients know when they're admitted they have a right to ask the hospital or hospitalist staff to consult with the patient's primary care physician or specialist that admitted them to the hospital."

Care coordination requirements were placed in the statute for communities in which local hospitals have instituted preferred contracts for hospitalists and others.

"This one's a big deal for those physicians who want to make sure that, if you have a patient admitted, you're able to follow care being provided and have some input into care that's rendered," said Cobbe. "That's probably a really good thing for our physicians and their patients. And then as far as discharge notification, there are time frames for the hospital to notify a patient's primary care physician upon discharge.

Cobbe pointed out language in the bill invalidates restrictive covenants.

"The ban on restrictive covenants in employment agreements is very limited," he said. "It's only if the single entity practice or hospital employs all the specialists within a county. If every urologist in the community is in one practice, then if you have a restrictive covenant in your employment agreement, then that covenant wouldn't be enforceable.

"A physician could leave the practice and start up another one within that community and not have to adhere to the noncompete clause."

Last year, the legislature passed primary care and direct primary care agreements, and language in the new law extends it to get rid of the term "primary care" and replaces it with healthcare.

"It's an attempt to broaden the use of these direct contracting agreements between patients and physicians," Cobbe detailed. "It lets specialists enter into those agreements as well. And just a reminder, those direct primary care agreements are basically like a gym membership, where a patient would pay a physician a certain amount of money per month in return for a menu of services in a monthly rate."

Step therapy protection was also included in the bill.

"It's somewhat limited, but it says if the patient was previously approved by another insurance carrier for a specific drug, another insurance carrier couldn't come along and discontinue therapy under that prescription," he said. "It certainly doesn't go all the way we wanted on step therapy protections for patients. It does provide at least one measure of protection for patients who are on a drug that's been approved, not getting switched off that drug."


HB 843 - Health Care TRAIN

Effective July 1, 2019

  • 24-Hour Stay in Ambulatory Surgery Centers
  • Pediatric rules will be established by AHCA
  • Hospital disclosure of performance measures
  • Hospital Notification of patient status change, ability to have their physician consult with hospital staff and discharge notification within timeframes
  • Invalidates restrictive covenants if one entity employs all specialists in a county.
  • Enables Direct Health Care Agreements
  • Step Therapy Protection - Patients can bypass if drug previously approved by another insurance carrier


HB23 - Not much for Telehealth

For yet another year, Florida legislators did little to improve the state's telehealth services.

"At least there's a bill now on the books for telehealth in the statutes," said Cobbe.

In HB 23, language addressing payment parity for insurers to reimburse physicians the same amount for a telehealth visit versus an in-clinic visit.

"The only thing it really is set up a process where out-of-state physicians will be able to register in Florida to provide telehealth services to Floridians," said Cobbe. "There's clear language that says if they do want to open up a brick-and-mortar practice, they'd of course require a full license to practice in the state of Florida."

The new law establishes a process where insurers and physicians may establish mutually acceptable payment rates for telehealth services.

"That's kind of going on already, so I don't know that'll change the landscape much," he said. "It clearly falls short of a mandate for insurers to reimburse physicians for telehealth services at the same rate as for other services," said Cobbe. "But I guess it does set up a process to start to engage with insurers, negotiate reimbursement rates for telehealth services."


HB 23 - Telehealth

Effective July 1, 2019

  • Requires out of state physicians to register in Florida
  • Prohibits them from opening traditional practice without securing the required license
  • Allows insurers and physicians to establish mutually acceptable payment rates for telehealth services

SB366 - Fighting Infectious Disease

The Infectious Disease Elimination Act (SB 366) removes the pilot program tag from the University of Miami needle exchange program, making it permanent. The bill also paves the way for the creation of similar programs.

"It continues the ban on the use of public funds to operate these programs," said Cobbe. "There was an effort during session to let cities and counties provide at least some public money to run these programs. The House really wasn't in favor of doing that."

Hillsborough County commissioners have discussed opening a similar program in Tampa.

"This is good news," said Cobbe. "It's definitely a bill the FMA and organized medicine supported. It's fantastic to see the University of Miami's program being recognized for great work."


SB366 - Infectious Disease Elimination Act Needle Exchange Program

Effective July 1, 2019

  • Removes "Pilot" tag from Miami program
  • Provides County Commissions the authority to approve new programs
  • Mandates specific resources, reporting and security measures that must be provided
  • Maintains ban on the use of any public funds for the programs


SB732 - Office Surgery

SB 732 addresses the troubling rise in patient deaths at plastic surgery offices, primarily in South Florida, with new rules and regulations impacting levels two and three surgery centers.

"The final version focuses on liposuction procedures performed on level two or three surgeries done in a physician's office," said Cobbe. "It requires those surgeons to register with the Department of Health. Also, each facility that performs office surgery must designate a responsible physician who will be held accountable for the office surgery suite living up to responsibilities to the state of Florida especially concerning patient safety."

The new law, effective Jan. 1, 2020, requires the Department of Health to conduct annual inspections of all registered office-based surgery.

"It's my understanding as a physician, you can currently name the practice as an additional insured on your med mal policy, which is something you'll need to do to ensure you're adhering to the same financial responsibility requirements as you are for the individual physicians practicing there," said Cobbe.

SB 732 - Office Surgery

Effective Date January 1, 2020

  • Any office that does liposuction or Level II or Level III surgeries must register with the Department
    • Bill does not change the current definitions of Level II or III.
  • Must designate a responsible physician and notify within 10 days if there is a change/appointment of a new physician.
  • Must establish financial responsibility to the same degree as currently required for physicians.
    • Name the practice as an additional insured.
  • Each physician must notify the Department within 10 days of practicing at the location.
  • Annual inspections from the Department - Unless you are accredited by a national organization recognized by the Board of Medicine


HB831 - Electronic Prescribing

"This is another bill that's going to have a wide impact on a lot of physicians in the state, said Cobbe.

This was modeled after federal legislation that passed last year, which was simply a mandate on e-prescribing controlled substances.

"The state of Florida, with this bill, is going far beyond what Congressional legislation mandates because this is going to impact every prescription. So, it's not just limited to controlled substances," Cobbe pointed out.

The effective date of this bill is Jan. 1, 2020, but it's somewhat nuanced because the language that requires physicians to e-prescribe says that effective July 1, 2021, or upon license renewal, whichever is earlier, prescribers would have to come into compliance. The state will provide clarity, but it looks like those whose license renews January 31, 2020, would have to come into compliance and then for everybody else it would be the next renewal cycle, which would be January 31, 2021.

"We were able to get in a number of exemptions to this. The language is very specific. It says that physicians that have electronic medical records must be prescribed. It doesn't force you to get EMR if you don't have EMR currently. I know there was some concern for some physicians that just do temporary voluntary work, or physicians that are nearing retirement age and have not invested in electronic medical records. This does not force them to do that. But to the point that you have implemented EMR, then you must be prescribed by these effective dates," said Cobbe.

There are a number of, exclusions to this. If a physician determines that it is in the best interest of the patient to give them the paper script, they can that, provided they make sure to document it in the medical record why you're not doing it electronically and why they determine it's in the best interest of the patient. There is also a clause that says if the patient determines it is in their own best interest to get a paper script so they can shop around, or for whatever other reason, they can demand a paper script if the physician documents it in the record. There is also an exemption if the physician is actually the dispensing entity, and one for hospice and nursing home patients.


HB 831 - Electronic Prescribing

Effective Dates - January 1, 2020 and July 1, 2021 or upon license renewal - whichever is earlier*

  • Physicians that have EMR must e-prescribe all medications unless:
    • Physician determines it is the best interest of the patient
    • Patient determines it is in their best interest to shop around
    • Must be documented in the medical record
    • Physician determines it would be impractical for patient to get electronic script filled in timely manner
    • Physician receives an economic hardship from the Dept of Health
    • Physician is the dispensing entity.
    • Hospice or nursing home patient
    • FDA requires a written prescription
    • Prescription cannot be transmitted electronically under the National Council for Prescription Drug Programs SCRIPT Standard.


Other bills that passed

HB 451 - Education and Alternatives to Opioids

  • Effective July 1, 2019
  • Requires Department of Health to publish pamphlet online containing information on non-opioid alternatives for pain relief. *Will take time to develop.
  • Before prescribing a Schedule II opioid for treatment of pain or anesthesia, physician must inform the patient of non-opioid alternatives, discuss the advantages and disadvantages, and provide the patient the DOH pamphlet.

HB 1113 - Shared Savings Programs

  • Effective July 1, 2019
  • Creates voluntary shared savings programs that must be offered by carriers.
    • Carriers report benchmark contracted rate for shoppable services
    • Patients can share in at least 25% of savings if they find treatment below the benchmark.
    • Shoppable Services include but are not limited to:
  1. Clinical laboratory services.
  2. Infusion therapy.
  3. Inpatient and outpatient surgical procedures.
  4. Obstetrical and gynecological services.
  5. Inpatient and outpatient nonsurgical diagnostic tests and procedures.
  6. Physical and occupational therapy services.
  7. Radiology and imaging services.
  8. Prescription drugs.
  9. Services provided through telehealth.

HB 851 - Human Trafficking

  • Effective July 1, 2019
  • Mandatory 1-hour CME Course for all MDs and DOs by 1/1/2021 (and other medical professionals)
  • Must post a sign in your office with a hotline to call if they are a victim
  • Must be in English and Spanish
  • Must be a specific size - 11 inches by 15 inches

Compliance date is 1/1/2021

SB 182 - Smokable Medical Marijuana -

HB 375 - PDMP Hospice Exemption

HB 411 - Non-Emergency Medical Transportation Services - Uber for Medicaid

SB 322 - Health Plans

  • Association Health Plans
  • Essential Health Benefits - limited coverage plans

HB 19 - Prescription Drug Importation Program

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