lawflablog

Governor Crist Vetoes Pay Cut for State Employees

Governor Crist vetoed a $30 million pay cut for State Employees earning more than $45,000 today.  An article about the veto can be found here.

Florida political commentator and journalist Gary Fineout speculates that  Crist's veto may result in a lawsuit by the Legislature.  Fineout's article can be found here. 

Fineout notes that Article III, Section 8 of the Florida Constitution states "The Governor . . . may not veto any qualification or restriction without also vetoing the appropriation to which it relates."  As pointed out by Fineout, the pay cut is contained in the so-called proviso language at the back of the 408-page budget. It is not attached to any one appropriation.

2nd DCA Rules on the Disclosure of Adverse Incident Reports

In an opinion filed on May 8, 2009, the Florida 2nd District Court of Appeal, held that work product materials, in the form of adverse medical incident reports, were not exempt from the provisions of the Florida Constitution's "Patient's right to know about adverse medical incidents".

As the issue affects litigation throughout the state the Court certified the following question to the Florida Supreme Court:

DOES THE RIGHT OF ACCESS GRANTED PURSUANT TO AMENDMENT 7, CODIFIED AS ARTICLE X, SECTION 25, OF THE FLORIDA CONSTITUTION, PREEMPT THE COMMON LAW WORK PRODUCT DOCTRINE AS IT APPLIES TO EXISTING REPORTS OF ADVERSE MEDICAL INCIDENTS?

The Court's opinion can be accessed at:

http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2009/May/May%2008,%202009/2D08-4102.pdf

ONC HITECH Implementation Plan

In accordance  with the  requirements of the American Recovery and Reinvestment Act ("Recovery Act") the Office of the National Coordinator for Health Information Technology ("ONC") has posted its implementation plan designed to improve the nation's health system through the use of health information technology.  Although the Recovery Act appropriates a little over two billion dollars to the ONC,  just under 350 million has been targeted for specific projects leaving 1.65 billion unspecified. 

I link to the ONC's Implementation plan may be accessed at :

http://www.hhs.gov/recovery/reports/plans/onc_hit.pdf

Enforcement of the Red Flag Rules Delayed

On April 30, 2009, the day before the May 1st deadline, the Federal Trade Commission announced ( http://www.ftc.gov/opa/2009/04/redflagsrule.shtm) that it would delay the enforcement of the Red Flag Rules until August 1, 2009.  The delay, the second delay with in the last 12 months, was  designed to give creditors more time to develop and implement Red Flag Programs.  Since most health care providers would be considered creditors and thereby required to have a Red Flag Program they should utilize this extra time to come into compliance.

Ethics Update

Florida

Legislature Extends Scope of Code of Ethics

 

The Florida Legislature has enacted legislation (SB 252) that extends the standards of conduct (Section 112.313), financial disclosure (Section 112.3145), gift (Section 112.3148), and honoraria (Section 112.3149) provisions of the Code of Ethics for Public Officers and Employees to directors, officers and employees of private entities that perform the functions of chief administrative officer and employee of a political subdivision.

 

The legislation extends the Code of Ethics to individuals whose relationship with a governmental entity as an “independent contractor” in the limited instance when serving as the chief administrative officer and employee of a political subdivision.

 

The legislation, if approved by the Governor, will take effect July 1, 2009.

Election Law Update

Attorney’s Fees in Ethics Cases For False Complaints Filed Against Public Officers and Employees Under the Code of Ethics

 

Section 112.313(7), Florida Statutes, provides that a public officer or employee is entitled to an award of attorney’s fees and costs incurred in defending a complaint that was filed with a malicious intent to injure the reputation of the public officer or employee with knowledge or with reckless disregard that is contains one or more false allegations of fact material to the alleged violation.

In Milanick v. Osborne, Case No. 5D08-605 (Fla. 5th  DCA April 17, 2009), the Court concluded that a person awarded fees pursuant to Section 112.313(7) is entitled to an award of reasonable attorney’s fees and expenses incurred in defending the complaint, including fees and costs incurred before and after the administrative hearing. However, the Court concluded that there is no entitlement under the statute for an award of fees for fees and costs in connection with seeking discretionary review in the Florida Supreme Court of the determination that the award of fees was appropriate, absent a mandate or determination by the appellate court that fees are appropriate.

The Court concluded that the approach described in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (

Fla.

1985) is to be used by the Commission on Ethics to determine a reasonable award of attorney’s fees and costs. In that case, The Florida Supreme Court concluded that the following approach should be used in determining reasonable attorney’s fees: “(1) determine the number of hours reasonably expended on the litigation; (2) determine the reasonable hourly rate for this type of litigation; (3) multiply the result of (1) and (2); and, when appropriate; (4) adjust the fee on the contingent nature of the litigation or the failure to prevail on a claim or claims.” 472 So. 2d at 1151-1152.