Florida’s Sovereign Immunity Law strongest in nation
A vital piece of legislation that many physicians remain unaware of makes it easier for them to volunteer at the state’s free and charitable clinics: Florida’s robust sovereign immunity (SI) law, considered the strongest of its kind in the nation.
“When physicians practice and volunteer in our free and charitable clinics, they get to practice the pure art of medicine,” said Mark Cruise, executive director of the St. Petersburg-based Florida Association of Free and Charitable Clinics (FAFCC).
“They don’t have to worry about medical malpractice,” said Cruise. “There’s no insurance billing. They get to spend as much time as they need with patients. Also, they get to see other colleagues in the community who are volunteering with them and share this rewarding experience outside their daily practice lives.”
Cruise said the state’s 100-plus free and charitable clinics, the most of any state in the nation, are operating in part because of the strength of the SI law. It’s also a contributing factor to the opening of six new free and charitable clinics anticipated in 2015.
Stephanie Garris, JD, executive director of Grace Medical Home in Orlando and chair of FAFCC’s Public Policy Committee, spends a significant amount of time monitoring legislative and regulatory issues, including keeping a keen eye on potential changes to the SI law.
“That law makes it possible for us to recruit and retain physicians as volunteers,” she said. “It’s vital to our sector.”
FAFCC’s policy agenda for the 2015 legislative session includes three changes to the SI law:
Removing language that prohibits SI-covered clinics from receiving state funds to pay for services. Presently, funds form the state appropriation may not be used to help clinics employ or expand the hours of a paid healthcare provider, which repeatedly has been proven to augment volunteer provider recruitment and retention, and to enhance overall volume, quality and continuity of care.
Amending the law to clarify that employed and volunteer healthcare providers practicing in SI-covered clinics will be granted sovereign immunity. This change would simply codify Florida’s Department of Health policy and practice.
Amending the law to permit SI-covered clinics to charge patients a nominal fee, not exceed $10, for administrative costs, if necessary. This change would bring the law up to date with the continuing development of the free and charitable clinic sector in Florida.
At press time, two identical bills with proposed changes were moving through both chambers: Senate Bill 1146, introduced by Sen. David Simmons (R-Altamonte Springs), had moved to the judiciary committee, and House Bill 965, introduced by Rep. Fred Costello (R–Port Orange ), had been referred to the Health Quality Subcommittee; Appropriations Committee; Health and Human Services Committee.
“We’re optimistic that we can get this passed,” said Cruise.
Retired doctors represent a growing segment of the physician population volunteering at free and charitable clinics. In fact, nearly 15 percent of Florida’s licensed physicians plan to retire in the next five years. Their ability to serve patients who will continue to fall through the cracks is vital as the physician workforce continues to decline. “Physicians typically don’t retire well,” noted Garris. “These brilliant doctors want to serve. The sovereign immunity law gives them freedom to do so without having to purchase medical malpractice policies.”
Jeannie Shapiro, executive director of the Clearwater Free Clinic in Clearwater, shared that 70 percent of the clinic’s 150 physician volunteers are retired from private practice.
“They love medicine, and want to give back and provide care,” she said. “Unfortunately, many physicians don’t know about Florida’s sovereign immunity law or we’d have more volunteers!”
That sentiment is echoed by Shepherd’s Hope CEO Marni Stahlman in Orlando, whose free clinic network allows patients to see doctors in a private practice setting with the agreement that patients will not be charged for a clinic visit.
“It’s a way for them to participate with us without leaving their office, which is sometimes very difficult,” said Stahlman.
In 2012, state lawmakers updated Florida’s SI law, initially enacted in 1992, to protect licensed medical providers through the Volunteer Healthcare Provider Program under Florida’s Department of Health (Florida S.S. 766.28 Sovereign Immunity Law).
Any licensed medical provider, while practicing within the scope of their license at a free clinic in Florida, is granted extended SI as long as the patient is living at or below 200 percent of the federal poverty level and is not insured. The law also applies to private medical practices, where licensed medical providers often see qualifying patients voluntarily and at no charge.
As a precaution, if a volunteer physician sees an existing patient who is determined to be ineligible for SI – for example, having new insurance or being over-income – the physician would have 30 days of extended SI.
If a volunteer physician is affiliated with a Professional Association (PA) practice, the Florida Department of Health recommends establishing a SI contract to protect the corporation.
Under the SI program, if a patient served by a volunteer healthcare provider under contract files a lawsuit, the patient may only file it against the state, not the individual provider. In that case, the Department of Insurance will provide legal services, and if the court decides the patient suffered damages as a result, the patient may be awarded damages up to $100,000, paid by the state.
“In the 18 years we’ve been operating, nobody has had a challenge,” said Stahlman. “Shepherd’s Hope and other free and charitable clinics are in need of additional volunteer health professionals and it’s important for those considering it to realize this protection benefit.”