Before closing its 2021 session, the Florida Legislature passed several bills that impact health care, summarized below.
The first bill discussed below regarding civil liability became effective on March 29, 2021. The majority of the other bills became effective on July 1, 2021.
Civil Liability for Damages Relating to COVID-19 (effective March 29, 2021)
1. Liability Protections for Health Care Providers
Senate Bill 72 provides civil liability protections for certain health care providers against COVID-19-related claims. For purposes of this statute, this includes civil liability claims against health care providers which arise from the:
- “Diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19;
- Provision of a novel or experimental COVID-19 treatment;
- Transmission of COVID-19;
- Delay or cancellation of a surgery or a delay or cancellation of a medical procedure, a test, or an appointment based on a health care provider’s interpretation or application of government-issued health standards or authoritative guidance specifically relating to the COVID-19 emergency;
- An act or omission with respect to an emergency medical condition [that] was the result of a lack of resources directly caused by the COVID-19 pandemic; or
- The provision of treatment to a patient diagnosed with COVID-19 whose injuries were directly related to an exacerbation of the patient’s preexisting conditions by COVID-19.”
For the plaintiff to prevail in a claim against a health care provider, the court must first determine if the plaintiff pled his/her case with particularity. The plaintiff has the burden to prove the claims by “the greater weight of the evidence that the health care provider was grossly negligent or engaged in intentional misconduct.” A health care provider will not be liable for the claim if he/she proves by the greater weight of the evidence the existence of an affirmative defense that applies to the claim such as substantial compliance with government-issued health standards relating to COVID-19.
If the claim arises out of the transmission, diagnosis, or treatment of COVID-19, the plaintiff must commence the action within 1 year after the later of the date of death due to COVID-19, hospitalization related to COVID-19, or the first diagnosis of COVID-19 which forms the basis of the action. If the claim does not arise out of the transmission, diagnosis, or treatment of COVID-19, such as a claim arising out of a delayed or canceled procedure, the action must commence within 1 year after the cause of action accrues. However, if the claim accrued before March 29, 2021, the action must commence before March 29, 2022.
2. Liability Protections for Certain Business Entities, Educational Institutions, Governmental Entities, and Religious Institutions
Senate Bill 72 provides civil liability protections for certain business entities, educational institutions, governmental entities, and religious institutions against COVID-19-related civil liability claims for damages, injury, or death that arise from or are related to COVID-19. The term includes a claim against a health care provider only if the claim is excluded from the definition of COVID-19-related claim in the above section.
For a plaintiff’s case to proceed, the court must determine whether: (1) the plaintiff’s complaint was pled with particularity and (2) whether the plaintiff submitted an affidavit, at the time the complaint was filed, signed by a Florida licensed physician attesting to his/her belief, within a reasonable degree of medical certainty, that the plaintiff’s COVID-19-related damages, injury, or death occurred as a result of defendant’s acts or omissions. A plaintiff must commence a civil action for a COVID-19-related claim within one year after the cause of action accrues, unless the cause of action accrued before March 29, 2021, in which case the plaintiff must commence the civil action before March 29, 2022.
If the plaintiff satisfies the initial requirements, the court shall determine whether the defendant made a good faith effort to “substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.” The burden of proof to demonstrate the defendant’s failure to make such a good faith effort is on the plaintiff. If the court determines the defendant did make such an effort, the defendant is immune from civil liability. “If the court determines that the defendant did not make such a good faith effort, the plaintiff may proceed with the action. However, absent at least gross negligence proven by clear and convincing evidence, the defendant is not liable for any act or omission relating to a COVID-19-related claim.”
Personal Care Attendants (effective June 24, 2021)
House Bill 485 provides that nursing homes may hire personal care attendants (PCAs) if the PCAs are participating in the PCA training program developed by the Agency for Health Care Administration (AHCA). PCAs assist nursing home residents with tasks related to the activities of daily living. A PCA must complete the 16 hours of required education before having any direct contact with a resident; however, a PCA may not perform any task that requires clinical assessment, interpretation, or judgment.
Nonopioid Alternatives (effective July 1, 2021)
Senate Bill 530 amends Florida Statute 456.44, with regard to the educational pamphlet developed by the Department of Health to assist in the use of nonopioid alternatives for the treatment of pain, which must be provided to patients or patient representatives in certain circumstances. The statute previously required the pamphlet only be provided in printed form, but it now may also be provided electronically.
Consent for Pelvic Examinations (effective July 1, 2021)
Senate Bill 716 amends the current Florida Statute relating to consents for pelvic examinations. The updates to the law, discussed in detail in our recent blog, include revisions to the definition of “pelvic examination,” the provision of additional situations which are exempt from the consent requirements, and details of certain circumstances where only written consent is required.
Freestanding Emergency Departments (effective July 1, 2021)
House Bill 1157 draws a distinction between “freestanding emergency departments” (FEDs) and “urgent care centers” (UCCs). A FED is a facility that: (1) provides emergency services and care, (2) is owned and operated by a licensed hospital and operates under the license of the hospital, and (3) is located on a separate premise from the hospital. A UCC is a facility or clinic that provides immediate but not emergency ambulatory medical care to patients.
The bill prohibits a FED from holding itself out to the public as a UCC and requires that it clearly identify itself as a hospital emergency department. Additional signage is also required to promote payment transparency.
The statute further requires AHCA and health insurers to post particular information on their websites. AHCA must post information regarding the differences between FEDs and UCCs and include an interactive tool to locate local UCCs. Health insurers must post a comparison of statewide average in-network and out-of-network UCC and FED charges for the 30 most common UCC services. They must include an interactive tool to locate local in-network and out-of-network UCCs.
Emergency Management (effective July 1, 2021, except where otherwise provided in the bill)
Senate Bill 2006 implements various provisions to address the pandemic and other future public health emergencies by:
- Requiring the Department of Health to develop a public health emergency plan, in response to any occurrence, or threat thereof, whether natural or manmade, which results or may result in substantial injury or harm to the public health from infectious disease, chemical agents, nuclear agents, biological toxins, or situations involving mass casualties or natural disasters;
- Requiring the Division of Emergency Management (the Division) to acquire and maintain a supply of PPE for use by state agencies and to assist local government and the private sector when determined necessary to meet safety needs during a declared emergency;
- Preventing business entities from requiring patrons or customers to provide documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business; however, the businesses are not restricted from instituting certain screening protocols;
- Preventing the Governor from issuing executive orders, proclamations, or rules for more than 60 days, although they may be renewed as necessary during the duration of the emergency;
- Mandating that any executive order requiring closure of, or restrictions to, in-person attendance at K-12 public schools, or restricting the operations of businesses, contain specific reasons for those determinations, and requiring that the Governor review and reassess the situation regularly; and
- Permitting the Governor to make funds available by transferring funds from the Emergency Preparedness and Response Fund if the Governor determines a state of emergency to be especially great.
Vaccines (effective July 1, 2021)
Senate Bill 768 expands the types of vaccines and immunizations which a pharmacist, or a pharmacy intern under the supervision of a pharmacist, may administer to adults, within the framework of an established protocol under a supervising physician licensed under chapter 458 or chapter 459. Such pharmacists and pharmacy interns may administer immunizations and vaccines licensed for use in the United States, or those which have been authorized for emergency use, by the FDA as of April 30, 2021. In addition, the Board of Pharmacy, by rule, may authorize them to administer additional immunizations or vaccines.
The bill also permits pharmacists who are certified to administer vaccines and immunizations pursuant to a certification program approved by the Board of Pharmacy to administer influenza vaccines to children seven years of age or older within the framework of an established protocol under a supervising physician licensed under chapter 458 or chapter 459.
Health Care Practitioner Discipline (effective July 1, 2021)
Senate Bill 1934 amends Florida Statute 456.072 to add offenses that may lead to discipline against health care practitioners by the Department of Health. For example, once the bill becomes effective, it shall constitute grounds for disciplinary action if a health care practitioner is convicted or found guilty of committing an act that would constitute a violation of any of the criminal offenses listed in Florida Statute 456.074(5), which includes offenses related to kidnapping, imprisonment, and unlawful sexual activity with minors. Florida Statute 456.074 requires the Department of Health to issue an Emergency Suspension Order against a physician licensed under Chapter 458 or 459 who is a pediatrician or who treats children in their practices if the provider is arrested for any of the specified offenses, such as crimes relating to kidnapping.
The bill further provides that the Office of Program Policy Analysis and Government Accountability (OPPAGA) shall be required to analyze Florida’s laws and rules relating to grounds for disciplinary actions against and immediate suspension of health care practitioner licenses.
Parents’ Bill of Rights (effective July 1, 2021)
House Bill 241 establishes the “Parents’ Bill of Rights.” A “parent” is defined as “a person who has legal custody of a minor child as a natural or adoptive parent or a legal guardian.” Some of the rights provided to a parent include the right to:
- Direct the education and care of the minor child;
- Direct the upbringing and the moral or religious training of the minor child;
- Make health care decisions for the minor child, unless otherwise prohibited by law;
- Consent in writing before a biometric scan of the minor child is made, shared, or stored; and
- Consent in writing before any record of the minor child’s blood or DNA is created, stored, or shared, except as required by general law or authorized pursuant to a court order.
The bill also provides that each school district board shall, in consultation with parents, teachers, and administrators, develop and adopt a policy to promote parental involvement in the public school system that includes procedures for a parent to learn about the nature and purpose of clubs and activities offered at the minor child’s school and procedures for a parent to learn about the minor child’s course of study, including the source of any supplemental education materials.
The bill requires, except as otherwise provided by law, that parental consent be obtained before a health care practitioner may:
- Provide or solicit or arrange to provide health care services,
- Prescribe medicinal drugs to a minor child, or
- Perform a medical procedure on a minor child in its facility.
The requirements for consent described herein do not apply to abortions or to services provided by clinical laboratories, unless the services are delivered through a direct encounter with the minor at the clinical laboratory facility.
Understand the Laws
We recommend providers and parents carefully review the specific language of the bills discussed above, which impact them, to ensure they understand what is required of them. We are available for consultations if anyone would like guidance regarding interpreting the bills discussed herein.