Certificate of Need program changes, hospital requirements and expansion of permitted direct care agreements are among the legislation.
By Beverly Pascoe & Timothy Hedrick
Chapter No. 2019-136 relates primarily to changes to Florida’s Certificate of Need program, while Chapter No. 2019-138 amends health care laws across several topics.
During its 2019 session, the state Legislature passed two bills that have been signed into law containing significant changes to Florida’s health care laws:
Florida, like a decreasing number of other states has maintained a CON program requiring select health care facilities to obtain state authorization before constructing a new facility or offering certain new or expanded services.
Those facilities included hospitals, skilled nursing facilities, hospice providers and intermediate care facilities for the developmentally disabled (ICF/DDs).
Under Chapter 2019-136, Florida’s CON program will be significantly limited in two separate waves.
Effective July 1, CON review was eliminated for general hospitals, complex medical rehabilitation and tertiary hospital services. Effective July 1, 2021, CON review will be eliminated for specialty hospitals.
Even after the amendment, skilled nursing facilities, hospice providers, and ICF/DDs will remain subject to CON review. These changes will reduce anticompetitive barriers, potentially resulting in an increase in the number of hospitals and other affected facilities, a decrease in prices and an increase in other more effective means of cost control.
Restriction on specialty physician restrictive covenants
Effective July 1, the legislature passed a new Section 542.336, which declares void restrictive covenants between a specialty physician and an entity that employs all of the physicians practicing that specialty in a county.
The new statute states that enforcement of that type of restrictive covenant is not supported by a legitimate business interest (as is required under Section 542.335).
The affected restrictive covenants remain void and unenforceable for three years after the date on which a second entity who employs physicians in the relevant specialty begins offering specialty services in the county. While this amendment is unlikely to affect Duval County, it may have an impact in Florida’s more rural counties.
Additional hospital requirements
The Legislature imposed two new requirements on hospitals. Section 395.1012(3), which is geared toward patient safety, requires hospitals to provide to any patient or the patient’s representative within a specified time period (or to any person on request) the hospital’s data and the statewide averages for the following quality measures: the rate of hospital-acquired infections; the overall rating of the Hospital Consumer Assessment of Healthcare Providers and Systems survey; and the 15-day readmission rate.
The information must include an explanation of the quality measures and the relationship between patient safety and the hospital’s data for the quality measures.
Section 395.1052, intended to address continuity of care, requires a hospital to notify a patient’s primary care provider within 24 hours of the patient’s admission to the hospital and again within 24 hours of the patient’s discharge from the hospital.
Within 14 days after the patient’s discharge summary has been completed, the discharge summary must be provided to the patient’s PCP.
The hospital also must notify the patient immediately upon admission that he or she has a right to request that the hospital’s treating physician consult with the patient’s PCP or specialist provider when developing the patient’s plan of care.
Expansion of permitted direct care agreements
Before the recent amendments, Florida health care providers were permitted to contract directly with patients to provide predetermined medical services for a monthly fee (e.g., “concierge” or “retainer” medicine), but such agreements were limited to primary care services.
Effective July 1, the Legislature amended Section 624.27 to allow “direct health care agreements,” meaning that such agreements no longer are limited to primary care services. Under the new law, a specialist or group practice may directly contract with a patient for non-primary care services within the specialist’s or group practice’s specialty in exchange for a monthly fee.
The amended Section 624.27 also adds dentists to the list of health care providers permitted to enter into a direct care agreement with a patient. These agreements remain subject to the same contractual requirements as before the amendment.
The impact of these recent legislative changes depends on the type and location of the health care provider. While hospitals are most directly impacted by many of these changes, some of the indirect changes should be positive for physicians and patient care.
Beverly Pascoe is a shareholder and Tim Hedrick is an associate with Rogers Towers, focusing on health law and corporate law.