Welcome back to Diagnosis, a vertical that focuses on the crossroads of Florida's health care policy and politics.

HCAF distributes the Diagnosis newsletter twice per month via email to our valued members. This benefit provides the latest health policy news, views, and happenings. This newsletter is published by FloridaPolitics.com and republished with permission.

A LOT OF JACK

That’s a lot of jack … As lawmakers consider making changes to Florida’s Medicaid-managed care program ahead of the next round of significant contracts, here's some interesting information. Medicaid managed care and managed dental plans returned $274.8 million in excessive profits to the state in 2020, according to the state Agency for Health Care Administration (AHCA).

Information obtained by Florida Politics shows that 11 contracted managed care plans were required to return premiums to the state in 2020 for making excessive profits off the mandatory managed-care program, including all three dental plans that have contracts with the state.

No plan, though, returned more premium to the state than the Children’s Medical Services plan administered by Sunshine Health Plan. According to AHCA, the plan returned nearly $155 million in premiums in 2020.

Sunshine Health also has a Medicaid-managed medical assistance plan which returned about $12.2 million in excessive profits to the state in 2020. It also bought WellCare of Florida (operated as Staywell), which produced $14.7 million in excessive profits.

The Florida Legislature passed a sweeping rewrite of its Medicaid laws in 2011, which included a requirement for most Medicaid beneficiaries to enroll in a managed care plan. Included in the Medicaid rewrite was the “achieved savings rebate” program meant to ensure that the plans weren’t making too much profit.

The law allows managed care plans to keep all profits from the program up to 5% of their revenue. Generally, half of the profit above that threshold and up to 10% of revenue is split between the plan and the state. Plans must return to the state all profits beyond the 10% threshold.

All three Medicaid-managed dental plans returned premium in 2020 under the achieved savings rebate provision in the law. DentaQuest returned $27.4 million, LIBERTY Dental Plan of Florida returned $18.6 million, and Managed Care of North America Inc., better known as MCNA Dental, returned $9.7 million in premiums in 2020.

United HealthCare of Florida, meanwhile, returned $15.6 million, and Prestige Health returned $3.6 million.

The profits were made in 2020 and included when all non-emergency procedures were halted and during lockdowns that kept people inside their homes.

It was the second consecutive year that the CMS plan returned more than $100 million in excessive profits to the state; it returned nearly $128 million in premium in 2019. LIBERTY Dental Plan of Florida was the only other contracted Medicaid plan that had to return excessive profits to the state in 2019, returning $1.4 million.

This Session, lawmakers are now considering bills that would revise how the Medicaid managed care program works. Lawmakers are wrestling with whether to keep dental care as a separately managed care offering or require the contracted Medicaid managed care plans to provide the services and other health care services.

CRITICAL CARE ON LIFE SUPPORT

$50.4 billion. That’s the amount of General Revenue legislators are estimated to have to spend — and save — in the state fiscal year 2022-2023. Yet, hospitals providing the most care to the poor, elderly, and disabled could face around $300 million in Medicaid cuts in the coming year.

That is what would happen if the Legislature doesn’t heed the call of Gov. Ron DeSantis to keep setting aside money for what safety-net hospitals have dubbed the "critical care fund."

The money is intended for 28 hospitals that provide the greatest Medicaid care in the state, to enhance Medicaid payments for those facilities.

But they have been a source of contention for hospitals that don’t receive the enhanced rates, and HCA Healthcare has been successful over the years in convincing lawmakers to pare back the annual appropriation.

Last year, the Legislature agreed to earmark $309 million for enhanced payments in the current fiscal year and agreed not to use any recurring revenue for the fund beyond June 30, 2022.

In the proposed FY 2022-2023 spending plan released in January, DeSantis advocated reversing the Legislature’s decision. The Governor’s recommended budget continues funding the critical care fund at $309 million and uses recurring general funds to do so.

It did not go unnoticed and could have been a reason why House Health Care Appropriations Subcommittee Chair Rep. Bryan Ávila pressed Agency for Health Care Administration Secretary Simone Marstiller on what was more critical: annual rate enhancements for some hospitals or addressing the state’s workforce training needs.

Sen. Aaron Bean, responsible for crafting the chamber’s health care budget, will unveil the Senate’s proposed spending plan Wednesday. He told Florida Politics that no final decisions had been made on retaining the fund. Avila will most likely reveal the House’s proposed health care budget the following day.

ALL SORTS OF WAYS TO DEFINE PRO-LIFE 

Senate President Wilton Simpson may not be the typical pro-life Florida Senator. The Trilby Republican said giving low-income women access to long-acting reversible contraception or “LARC” is a “healthy part” of a pro-life agenda and that the Senate would “most likely” include funding in the fiscal year 2022-2023 budget to get that done.

"It’s the have and have nots in my book," Simpson said, noting that LARC is widely available to women but not to those who are uninsured and living in lower-income households.

“I use the word opportunity a lot. If you give those young women an opportunity not to get pregnant, then they have an opportunity to go to college or start a career. Then they are 23, 24, 25 years old and less likely to fall into poverty at that point."

Senate Appropriations Subcommittee on Health and Human Services Chair Bean quietly tucked $2 million in the 2021-2022 budget. The Florida Catholic Conference urged DeSantis to veto the funding, and the Governor did.

Simpsons’ push for the money again this Session comes as the Legislature advances proposals to ban abortions after 15 weeks of pregnancy. In nature, it's similar to a Mississippi law under U.S. Supreme Court review. But the court isn’t expected to render an opinion in that case until sometime in June. Simpson calls the Mississippi bill “a very good start” and said he supports it.

“I think the LARC is a healthy part of a pro-life series of bills, or in this case funding, and it’s something that you will see again this year,” Simpson told reporters on the opening day of the 2022 Session.

We’ll see soon enough.

The Senate Health Policy Committee will consider the abortion restriction bill SB 146 Wednesday. Bean also unveils the first iteration of the Senate’s proposed care spending plan Wednesday.

NEGOTIATED BUT STILL CONTROVERSIAL

While plenty is going on in the Capitol, AHCA kicks off the week Monday when it hosts a public meeting on a proposed Rule 59A-3.249 for neonatal intensive care units that’s been more than two years in the making.

The agency has set aside three meeting rooms in its Tallahassee headquarters, Building 3. There also is a call in the number.

The Public Health Trust of Miami-Dade County and UF Health Shands Hospital requested a meeting, as did St Joseph’s Women’s Hospital Tampa and St. Joseph's Children’s Hospital, which are part of the BayCare System; Baptist Health South Florida, an 11-hospital system across Miami Dade, Palm Beach, and Monroe counties.

Public Health Trust of Miami-Dade County and UF Health Shands Hospital challenged AHCA’s proposed rule in state administrative court. Attorneys for both sides agreed to push back a hearing date until after the public hearing to allow for further discussions of the merits of allowing for “further discussions of the merits to take place after the public hearing.”

In the January 24 order extending the deadline for a hearing, Division of Administrative Hearings Judge E. Gary Foley ordered both parties to provide an update by Feb. 24 on the disputed rule and to provide several mutually-agreeable dates for a final hearing “should one be necessary.”

Meanwhile, AHCA has turned to outside legal help hiring Foley & Lardner Tallahassee attorneys Robert Hosay, Mallory Neumann, and Benjamin Grossman. The rule will shift how Florida's hospitals care for sick neonates. The latest iteration of the NICU rule results from what’s known as negotiated rule-making. Marstiller hired retired Judge Gregory P. Holder to serve as the mediator.

PHYSICIAN ANESTHESIOLOGISTS GET THE LOVE

The Governor declared Jan. 31 through Feb. 5 as Physician Anesthesiologist Week in Florida.

“Physician anesthesiologists are guardians of patient safety in health care, in the operating room, in the delivery room in the intensive care unit at the U.S. Department of Veterans Affairs and served on the front lines of the COVID pandemic,” the proclamation reads in part.

DeSantis signed the declaration on Jan. 24, the first of two days last week when physician anesthesiologists descended on the Capitol as part of “FSA Legislative Days.”

Physician anesthesiologists want the Legislature to expand the role of physician extenders known as anesthesiologist assistants (AAs). Specifically, they support bills to alter existing law that requires anesthesiologists to be in the identical surgical or obstetric suites as the AA to be supervised during a procedure.

Anesthesiologists want greater flexibility, though, and support changes that would allow physician anesthesiologists to be located on the same premises as an AA and be reasonably available when needed.

Sen. Dennis Baxley is the sponsor of SB 1366 and Rep. Thad Altman is the sponsor of HB 1101, neither heard in committee. According to the latest report from the Florida Department of Health, there are 509 active AAs in the state. There are 56,538 active physicians in the state. The report does not, though, provide a breakout on the number of physician anesthesiologists in the state. It’s the first time physicians have sought to expand the AA role since the profession was first established more than 20 years ago.

APPOINTED 

• Neuro-oncologist Dr. Tulika Ranjan has joined Tampa General Hospital Cancer Institute. Since 2015, Ranjan served as Director of Neuro-Oncology at Allegheny Health Network, a 13-hospital medical system with facilities throughout western Pennsylvania and one hospital in western New York.
• Barbara James has been named vice president of Development & Development Support. She previously served as the executive director of the Bethesda Hospital Foundation.
• Hersimren Kaur Basi, MD, has been appointed as a pain management specialist at Cleveland Clinic Florida’s Weston Hospital. Before joining Cleveland Clinic Florida, Dr. Basi was a clinical assistant professor with the Anesthesiology Department of Chronic Pain at the Anesthesiology Institute, Cleveland Clinic in Ohio.
• Allen Gast was named to the Clinics Can Help Board of Directors. Clinics Can Help is the largest not-for-profit organization in the state that recycles and reuses medical equipment.

ICYMI

In case you missed them, here is a recap of other critical health care policy reporting covered in Florida Politics this past week.

No Video — A bill that updates Florida’s telehealth laws to allow the use of telephones cleared the Senate unanimously Thursday. Sponsored by Senate Health Policy Committee Chair Manny Diaz Jr., the measure (SB 312) strikes the prohibition in current law that bans the use of “audio-only” devices for telehealth. Moreover, the bill also would allow physicians to renew prescriptions for Schedule III, IV, or V controlled substances via telehealth, which cannot be done under Florida’s current telehealth statutes. Fearful of potential abuse, lawmakers in 2019 took a limited approach in allowing providers to use telehealth to prescribe medicines, permitting it only for psychiatric patients, hospice patients, hospital inpatients, and nursing home residents. Schedule III substances have a potential for abuse but are currently accepted for medical use in the United States. Schedule IV substances include benzodiazepines and barbiturates. Schedule V substances include mixtures of substances that can contain small quantities of opiates, narcotics, or stimulants.

Rewrite — Dental care, health care workforce shortages, and managed care monopolies are targeted in a proposed rewrite of the state’s mandatory Medicaid managed care program the House released late Tuesday. The proposed 40-page bill that will be considered by the House Thursday puts dental care back on the list of covered services that contracted Medicaid managed care plans would be required to provide, along with traditional health care services. In a move that is sure to draw opposition from safety-net hospital systems, the House bill would require faculty plans at Florida medical schools and 11 regional perinatal intensive care centers to participate in each Medicaid managed care plan’s network. The providers are mandated to enter the contracts because they have been deemed as “essential” in statute by the state. Essential providers that don’t abide by the contracting mandates won’t receive any form of supplemental Medicaid payments from the state. That could lead to the loss of hundreds of millions in funding for hospitals across the state.

We’re No. 1 — Florida once again led the nation in the number of residents who signed up for individual health insurance coverage during the 2022 open enrollment period. Data released Thursday morning shows 2,723,094 Florida residents signed up for or were re-enrolled in health insurance through the federal health exchange for 2022. There were 602,744 more people who enrolled in an Obamacare plan in 2022 than the previous year. Nationally, about 14.5 million Americans signed up for individual health insurance policies during the open enrollment period, from Nov. 1 through Jan. 15. Data shows that 2.98 million people were new customers. Texas and California directly trailed Florida in the number of residents who secured individual insurance coverage. Texas saw 1,840,947 enrollments of re-enrollments, another 1,781,491 in California.

Free Kill — A House panel Thursday moved a bill that would allow, for the first time in 30 years, the parents of single, childless adult children to recover noneconomic damages in medical malpractice claims. Sponsored by Rep. Spencer Roach, HB 6011 cleared the House Civil Justice & Property Rights Subcommittee by a 13-5 vote and over the objections of Florida’s medical community and insurance industry. House documents show 103 lobbyists have registered on the bill. The legislation would attempt to change a complex and complicated portion of Florida law. When a person’s death is caused by a wrongful act, negligence, or breach of contract of another, Florida law allows claims to be brought by the family members or by the estate. When it comes to wrongful deaths stemming from medical malpractice claims, parents of adult children who are not married and do not have children cannot sue for noneconomic damages. Additionally, adults who are 25 or older cannot pursue wrongful death claims for parents who die from medical malpractice.

Clawback Cash — Florida recovered more than $22 million in civil and criminal penalties stemming from Medicaid fraud and abuse in the Fiscal Year 2020-21. According to a new state report, the state also clawed back $23 million in Medicaid overpayments to providers. The report — which looked at the state’s efforts to go after Medicaid fraud — was developed by the Agency for Health Care Administration (AHCA) and the Office of the Attorney General. The report shows the Medicaid Fraud Control Unit received 7,605 complaints between July 1, 2020, and June 30, 2021, which is about 2,000 fewer complaints it received the previous year. In FY 2020-21, the fraud unit closed 444 cases. Of those, 211 involved Medicaid fraud investigations. Meanwhile, the unit referred 33 cases for prosecution during the year, 21 of which were fraud cases involving providers. The $22.7 million-plus in civil and criminal recoveries collected in FY 2020-21 by the unit outpaces the $11.8 million collected the previous fiscal year. However, the $23 million recovered in Medicaid overpayments by Medicaid Program Integrity is less than the $30 million recovered the year before.

FOR YOUR RADAR 

“Hundreds, maybe thousands, of Florida Medicaid kids at risk of losing care” via Alexandra Glorioso of Barred Owl Press — In the past three weeks, I’ve talked to seven providers who operate in 10 different counties across Florida, who’ve struggled to get paid by Sunshine Health since October. In the past three months, all seven providers have complained to Sunshine, sometimes multiple times. Six providers also complained to the state. At least two providers also filed HIPAA violations with the state because one received the other’s patient authorizations, federally protected information. What I learned is that providers’ claims were being denied, in part, because Sunshine had made some grave data errors when it began administering Florida’s CMS Medicaid plan on Oct. 1. WellCare, a different health insurance company, had been managing the CMS Medicaid plan until Oct. 1. Then, Sunshine merged with WellCare and became responsible for the children’s care until its contract with the state ends in 2023. It was during the merger with WellCare that Sunshine screwed up what’s known as provider credentialing data for the CMS Medicaid plan, causing providers to no longer get paid.

“Study finds employees in Florida pay among the highest rates for health insurance” via Katrine Bruner of WUSF — The average amount that Florida workers paid for premiums — which come out of their paychecks — and deductibles was $9,284 in 2020, or 16%, of the state’s median income. Ten years ago, Florida’s workers paid $5,205 — or 11% of the state’s median income. Overall, the cost of health insurance in Florida is comparable to the rest of the country. But employees here have to shoulder a greater burden. “Workers in Florida pay a greater percentage of that premium — one of the highest in the country,” said Sara Collins, the study’s lead author and a vice president for Commonwealth. “And then median income in Florida is lower than the national average, actually significantly lower. So, it's really a perfect storm for high-cost burdens.” Nationally, health insurance costs accounted for 11.6% of median U.S. household income in 2020, compared to 9.1% in 2010. But the study found that families in Florida were hit harder than any other state. On average, employees opting for family coverage had to pay 37% of their overall premiums, or $7,674. That was the highest in the nation.

“Bill would expand Florida doctors’ ability to refuse care based on beliefs” via Kirby Wilson of the Tampa Bay Times — The Legislature on Tuesday began moving forward with a bill (SB 1820/HB 747) that would allow health care providers to act on their “conscience” when deciding whether to provide certain treatments for patients. Under Florida law, health care providers are already allowed to refuse to participate in the termination of a pregnancy, the prescribing of contraception, or counseling services that run counter to the provider’s religious beliefs. Federal law also offers doctors several conscience-based protections, particularly in the area of abortion. However, the bill would expand those protections and establish a new legal cause of action for providers who feel their rights of conscience have been denied. If a doctor is fired for refusing to perform an abortion or prescribe contraception, that provider could now sue their employer under the bill. The bill does not list specific procedures to which a medical provider could object. It simply says those providers can’t be compelled to perform a “health care service,” which is defined as “inpatient or outpatient tests or treatments of a human disease, condition, or dysfunction or medical or other health-care-related research.”

“Turf battle grows as Broward Health plans a new hospital in Sunrise. It won’t ‘concede our area’ to competitors.” via Cindy Krischer Goodman of the South Florida Sun-Sentinel — Broward Health will move forward on land it bought in Sunrise to build a hospital. Broward Health plans to build the new hospital in partnership with Memorial Healthcare System, a unique partnership that would bring the two public hospital systems together to service all segments of the population. The move comes as competition has heated up, with health care systems in South Florida expanding their footprints. The two public hospital systems in Broward County had tried to discourage the city of Sunrise from entering a deal with Baptist Health South Florida. The Miami-Dade-based Baptist Health plans to build its first hospital in Broward County on a 25-acre property in Sunrise, situated by Oakland Park Boulevard and the Sawgrass Expressway. After five hours of discussion on Jan. 11, the city voted to move forward on a deal to sell its land to Baptist Health with the promise it would open with at least 100 beds.

“In super-vaxxed Vermont, COVID-19 strikes — but packs far less punch” via Sarah Varney of KHN — Of all the states, Vermont appeared best prepared for the omicron battle: It is the nation’s most vaccinated state against COVID-19, with nearly 80% of residents fully vaccinated — and 95% of residents age 65 and up, the age group considered most vulnerable to serious risk of COVID-19. Yet even this super-vaxxed state has not proved impenetrable. The state in mid-January hit record highs for residents hospitalized with COVID-19; elective surgeries in some Vermont hospitals are on hold, and schools and day care centers are in a tailspin from the numbers of staff and teacher absences and students quarantined at home. But experts are quick to note that Vermont’s coronavirus-related hospitalization rates still rank last in the nation. And overall death rates also rank comparatively low. Dr. Tim Lahey, director of clinical ethics at the University of Vermont Medical Center in Burlington, credits the state’s Republican Governor, Phil Scott, who has been “unambivalent about pro-vax messaging.” Combined with a “tendency to trust the vaccine, you get a different outcome than in places where political leaders are exploiting that minority voice and whipping people up in anger.”

LOBBY UP

Lawmakers are again considering legislation to place more regulations on pharmacy benefit managers (PBMs).

PBMs negotiate with drug manufacturers on behalf of insurance companies to purchase drugs at reduced prices or promise additional rebates.

They have been pejoratively referred to as “middlemen” due to “spread pricing” — a term describing the practice of charging an insurer one price for a drug and paying the pharmacy a lower cost while pocketing the difference.

In 2018, lawmakers approved limited regulations on PBMs, requiring them to register with the Office of Insurance Regulation (OIR).

The legislation also banned so-called “gag clauses,” which prevented pharmacies from selling drugs to patients at a lower price than the one negotiated by their insurer’s PBM. Proponents of that provision claimed that in some cases, the negotiated price was higher than it would be for an uninsured patient.

While the 2018 bill required PBMs to register with OIR, it did not give OIR the authority to oversee PBM operations, such as audits, which PBMs conduct to ensure pharmacies comply with contracts.

A 2022 bill filed by Rep. Jackie Toledo (HB 357) would allow OIR to enforce audit provisions in the Florida Pharmacy Act and would give pharmacies the ability to appeal audit findings made by health plans and PBMs using AHCA’s existing dispute resolution program. The proposal has already cleared two committees.

Many pharmacy groups keep tabs on the bill, including the American Pharmacy Cooperative. The organization represents more than 1,800 members pharmacies in 26 states and has consistently criticized PBM practices such as spread pricing.

It recently re-upped a lobbying deal with the team at Gunster, including Joanna Bonfanti, Ron Brise, Julie Fess, Sha’Ron James, Corrine Maro, and Larry Williams.

PENCIL IT IN

The following health care events take place this week. Legislative committee meetings can be viewed live on TheFloridaChannel.org or accessed after the meeting takes place. Find legislation online at FLSenate.gov or MyFloridaHouse.gov. All times are Eastern Standard Time.

Monday, January 31

• 9:30 AM — The Agency for Health Care Administration holds a hearing on proposed Rule 59A-3.249 regulating Neonatal Intensive Care Units. (AHCA, Building 3, Conference Rooms A, B, and C, 2727 Mahan Drive, Tallahassee, FL, or call (888) 585-9008 with the participant code: 476211242)
• 11:00 AM — Statewide Human Trafficking Council meets.
• 3:00 PM — The House Appropriations Committee meets. The panel will take up HB 985, which changes the state's sovereign immunity laws. (212 Knott Office Building)
• 3:00 PM — Senate Judiciary Committee meets and will consider SB 974, which changes the state's sovereign immunity laws, and SB 262, which allows for the recovery of noneconomic damages in medical malpractice suits.

Tuesday, February 1

• ALL DAY: Florida Dental Association hosts its 2022 Dentists' Day.
• 11:00 AM — The Agency for Health Care Administration holds a workshop on proposed Rule 59A-4.110 regulating dietary services. (888-585-9008; participant code: 476211242)
• 12:30 PM — The House Health & Human Services Committee meets and will consider HB 357 addressing pharmacy benefits managers and CS/HB 795 regarding recovery peer specialists.
• 1:00 PM — The Senate Children, Families, and Elder Affairs meets and will consider the confirmation of Michelle Branham as secretary of the Department of Elder Affairs. The committee also will consider SB 1844, a mental health and substance abuse bill filed by Sen. Aaron Bean. (37 Senate Office Building)
• 1:00 PM — The Senate Education Committee meets and will consider SB 390, regarding the use of restraints on children with disabilities in public schools.
• 3:00 PM — House Session. HB 539 regarding financial reporting for nursing homes is on the Special Order Calendar.
• 3:30 PM — The Senate Ethics and Elections Committee meets and will consider the confirmation of Fabio Andrade, Karyn Hill, and Nicholas White to the Board of Dentistry. The committee also will consider the confirmation of Donald Popper to the Florida Board of Podiatric Medicine. (110 Senate Office Building)

Wednesday, February 2

• ALL DAY: The American Heart Association virtually celebrates Florida Heart Day. Register here.
• 8:00 AM — The Board of Respiratory Therapy Probable Cause Panel meets.
• 11:00 AM — The Senate Health Policy Committee meets and will take up SB 1324, requiring nursing homes to submit audited financial statements with the state, and SB 146, which restricts abortions and a bill to restrict abortions. (412 Knott Office Building)
• 11:30 AM — The House Professions & Public Health Subcommittee meets. (212 Knott Office Building)
• 2:00 PM — The Senate Appropriations Subcommittee on Health and Human Services meets and will consider the proposed health care spending plan for the Fiscal Year 2022-2023. It also takes up SB 7034 and SB 988, priorities of Senate President Simpson. (412 Knott Office Building)
• 2:00 PM — The Board of Nursing Education and Credentials “B” Committee meets. (Embassy Suites by Hilton Orlando-Lake Buena Vista South, 4955 Kyngs Heath Rd., Kissimmee, FL)
• 2:30 PM — The House is in Session.

Thursday, February 3

• 8:30 AM — The Board of Nursing Credentials “A” Committee meets. (Embassy Suites by Hilton Orlando-Lake Buena Vista South, 4955 Kyngs Heath Rd., Kissimmee, FL)
• 8:30 AM — The Board of Nursing Education and Credentials “B” Committee meets. (Embassy Suites by Hilton Orlando-Lake Buena Vista South, 4955 Kyngs Heath Rd., Kissimmee, FL)
• 11:30 AM — The House Children, Families & Seniors Subcommittee meets. (102 House Office Building)
• 12:00 PM — The Senate is in Session.
• 2:00 PM — The House Finance & Facilities Subcommittee meets. (17 House Office Building)
• 4:30 PM — The House Health Care Appropriations Subcommittee meets. (17 House Office Building)

Friday, February 4

• 1:30 PM — The Board of Nursing meets. (Embassy Suites by Hilton Orlando-Lake Buena Vista South, 4955 Kyngs Heath Rd., Kissimmee, FL)