Monday, May 12, 2014

Legislative Session Wrap-up 2014

The Florida Legislative Session 2014 was relatively quiet on the workers' compensation front. Generally speaking, the Twenty-First Century has been  legislatively quiet for Florida workers' compensation. Certainly, there were significant changes in 2001 and again in 2003. Since then, however, there has been little action.

In 2009, there was a minimal change in the provisions of Fla. Stat. 440.34. The Florida Supreme Court interpreted that section in 2008 in Murray v. Marriner, focusing on statutory language and construction of this section. Following that interpretation, the Legislature reacted and removed language from Fla. Stat. 440.34.  Though it made a notable change, this action could not be characterized as sweeping legislative reform. 

In 2011, there were some changes in the statutory procedures. Most notably electronic filing became statutorily mandatory. Of course the use of e-filing had been mandated by procedural rule in 2010. While this is again notable, it is not the kind of reform that is characterized as significant. 

So, there has been significant amendment of our law in this Century, but not really any broad amendments lately. 

In the waning years of the Twentieth Century the Florida Legislature made what many consider to be significant changes to the law in 1979, 1989, 1990, 1991, and 1993. It was pointed out to me this session that there was an arguable trend of major reform in Florida at least every ten years through 2003. That characterization would need us to quantify "major." However, as we look forward to the 2015 session, we see a fairly quiet workers' compensation legislative situation for the last dozen years since 2003.  

There will be no shortage of prognosticators as to what 2015 holds in store for Florida workers' compensation. 

What did happen this year? There were some legislative efforts, some more successful than others. 

HB 271 passed. This one addresses stop-work orders and penalties for uninsured employers, enacts an alternative calculation of the injured workers' compensation rate and changes the assessment process for the old Special Disability Trust Fund (yes, it is still with us). There are some who see controversy in this bill. There is a perception in some quarters that the compensation rate alternative will result in litigation. They point to Escambia County School Board v. Vickery Orso, 109 So.3d 1242 (Fla. 1st DCA 2013). 

HB 785 passed. This amendment provides clarity regarding the compensability of vitamins, supplements, and "medical foods." The short answer is that these are now not compensable in Florida unless the Employer/Carrier "in its sole discretion authorizes provision of such." The term "medical foods" is defined in the new law by reference to 21 U.S.C. 360ee(b)(3), which provides:

"The term “medical food” means a food which is formulated to be consumed or administered enterally under the supervision of a physician and which is intended for the specific dietary management of a disease or condition for which distinctive nutritional requirements, based on recognized scientific principles, are established by medical evaluation."

HB 785 also changes the way certain employers can negotiate their workers' compensation premium. This looks like it is only applicable to employers who do business in more than one state, and who have reasonably large annual premiums (over $100,000) for workers' compensation coverage. Academically, this bill is interesting because of a conflict section it includes. The Legislature acknowledges in the bill that there were other legislative efforts ongoing regarding the subject, and clarified which would control if both bills passed.  

HB 7177 passed. This one is technically not a workers' compensation bill, but will be of interest to the workers' compensation community. There is a significant amount of concern regarding the amount of narcotics which people can and do obtain. Therefore, in 2009 Florida enacted a prescription drug monitoring database in Fla. Stat. 893.055. There was some concern raised in the last couple of years regarding law enforcement access to that database of information. HB 7177 clarifies how and when that information will be accessed in the law enforcement setting.

One Florida workers' compensation issue gained a significant amount of press coverage this year. The state has struggled with implementation of a fee schedule for hospital care in workers' compensation for several years. There is a fairly constrained fee schedule in place that controls how doctors are reimbursed, which is tied to the published Medicare reimbursements. The Florida hospital reimbursement has instead been tied to calculation based on the amount hospitals charge for specific services. 

There were two bills introduced with a goal of providing clarity and constraint to hospital reimbursement. HB 1351 and SB 1580. As filed, these would have limited hospital reimbursement in workers' compensation cases to 140% of the reimbursement paid by Medicare for those hospital services. There were those who predicted this limitation would have markedly reduced workers' compensation premiums in Florida. HB1351 did not make it out of committee. SB 1580 was amended in the session to instead provide for a task force to study hospital reimbursement issues, but as amended it did not make it out of the Appropriations Committee. 

The Florida workers' compensation constituencies wait as spring 2014 fades into summer. There are three cases pending in The Florida Supreme Court regarding workers' compensation. Several of the "old guard" of the workers' compensation practice have told me they cannot remember the last time the Supreme Court accepted jurisdiction of three cases at the same time. In time, the court will address a constitutional attorney fee challenge, Castellanos, a constitutional and/or statutory construction challenge, Westphall, and a policy construction question posed by the Federal Appeals Court for the Eleventh Circuit  

One commentator, David DePaolo, wrote last summer that "the real question is whether the court's willingness to review a constitutional challenge denotes an emerging trend." He was writing about decisions by the First DCA in Westphall and other cases, but the quote could easily be about the Supreme Court's consideration of these several cases in 2014. Much will be seen in the months to come. The Court's decisions may be instructive, earth-shattering, or anticlimactic. Time will tell. We are left to wonder whether and why the 2015 legislative session may be more significant for the Florida workers' compensation system than we have seen since 2003, or another quiet session.

Whatever else you can say about Florida workers' compensation, you cannot say it is not interesting, and sometimes downright intriguing. 

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