Michael Moline - SaintPetersBlog

Michael Moline

Michael Moline is a former assistant managing editor of The National Law Journal and managing editor of the San Francisco Daily Journal. Previously, he reported on politics and the courts in Tallahassee for United Press International. He is a graduate of Florida State University, where he served as editor of the Florida Flambeau. His family’s roots in Jackson County date back many generations.

Jack Latvala to House: The Senate makes its own rules

Senate Appropriations Chairman Jack Latvala sent a message Thursday to the House leadership: Don’t expect to force the Senate to abide by your strict new budget rules.

“We have our own rules in the Senate. We are going to abide by our own rules,” Latvala told reporters following a committee meeting.

“I think it would be unfortunate if we got to a position where, because the House is trying to force their rules on the whole process, that we get into some kind of government shutdown or something like that,” he said.

“The way to avoid that is to have conversation and negotiation early on in the process. Next month, you’ll see us take some steps to try to bring that about.”

Under rules approved when Richard Corcoran assumed the speakership, members must file a specific bill describing each project they hope to insert into the state budget. The idea is to get away from secretive logrolling late during sessions.

Corcoran has suggested that senators seeking projects find a House co-sponsor, to remain within the spirit of the House’s drive for transparency.

Latvala, a Republican from Clearwater, wasn’t having it.

“We are going to have our own process, just like we have from time immemorial. We are going do things differently than the House does,” he said.

“Each subcommittee is going to have one or more hearings where we’re going to thoroughly vet those projects that people have put forward. Each of our conference meetings that we host this year, we are going to make sure there’s time for public participation. Some of these things haven’t been done in the past. There’s different ways of getting transparency.”

As for whether senators should file project bills, Latvala allowed that might be a good idea.

“I’m encouraging people to file these bills. It kind of helps catalog what’s in the system. I have no objection to it,” he said.

“It’s important to have a consistent set of rules that both sides adhere to and agree to,” he said.

“But you can’t have a set of rules in the House and a set of rules in the Senate and they’re different. That’s never happened before. There’s a lot of case law that says this is a bicameral legislature, and that one house in this legislature can’t encumber or make decisions for the other house.”

He added: “It’ll all work out.”

As for the House’s tightened disclosure requirements for lobbyists, Latvala said:

“All that’s done is create some more bookkeeping for the lobbying firms. It’s helping Tallahassee employment, because some of the lobbying firms have told me they’re having to add people to fill out the paperwork. So much for government staying out of business.”

Meanwhile, Latvala welcomed news from the Division of Bond Finance that Florida’s debt load has declined by $4 billion during the past six years.

It means “we’ve got some room to do some bonding for projects like Sen. (Joe) Negron’s Everglades project,” Latvala said.

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Ratings agency warns in brief against ‘dramatic expansion’ of Sunshine Law

An insurance organization that proposes workers’ compensation coverage rates in Florida defended itself in pleadings to a state appeals court this week, seeking to overturn a lower court ruling that it had violated open-government laws.

Attorneys for the National Council on Compensation Insurance, or NCCI, submitted their arguments in a brief filed Wednesday with the 1st District Court of Appeal. The state office of Insurance Regulation is also a party to the suit, filed by Miami workers’ compensation attorney James Fee.

“The trial court’s order is flawed in numerous respects, fails to follow decades of binding precedent, ignores the plain language of relevant Florida statutes, and makes factual findings that lack record support and are directly contrary to the uncontradicted evidence,” the brief says.

“Florida’s Sunshine Law applies only to boards or commissions of governmental entities,” the document says. “NCCI is a private corporation, not a governmental entity, and no governmental entity has delegated the performance of its public, rate approval purpose to NCCI.”

Leon County Circuit Judge Karen Gievers ruled in December that NCCI and the insurance office had violated the Sunshine Law in formulating a 14.5 percent in workers’ compensation premiums that will take effect through the end of this year.

Gievers pointed to statutory language requiring state-sanctioned rating agencies, like NCCI, to conduct their business in the sunshine. NCCI, she said, had been obligated to open its internal committee work on the rate to the public, as well as relevant documents.

The 1st DCA allowed the rate to begin to take effect pending the outcome of the appeal.

In its brief, NCCI argued that it lacks the sort of committee contemplated in the law. It once maintained such a panel, the summary says, comprising of representatives of Florida insurance companies. But it dropped the board in 1991 over antitrust concerns.

“Undisputed record evidence demonstrates that NCCI does not now, and did not at any time relevant to this proceeding, have a committee with responsibility for Florida workers’ compensation insurance rates,” the brief says.

Instead, a single employee — Jay Rosen, NCCI’s lead actuary for Florida — was the sole “decision-making authority” for the filing, although he worked on it with his staff.

He submitted his findings to peer review within the organization and to employees who would explain it to state regulators.

The brief says NCCI posted on its website, in advance of regulatory hearings, “hundreds of pages of documents” that the organization relied upon.

“The OIR’s process allowed for significant public participation during the hearing, as well as before and after. The OIR received substantial input from interested stakeholders and the public, including persons in favor of, and opposed to, NCCI’s filing.”

Ultimately, regulators approved a smaller rate hike than NCCI had proposed.

“If allowed to stand, the trial court’s order will mark a dramatic expansion of the requirements of Florida’s Sunshine and Public Records Laws, as well as an expansion of (the insurance code) beyond their plain language, in violation of clear binding precedent,” the NCCI brief says.

“Any such expansion would greatly inhibit the ability of private entities, as well as government entities, to conduct business in Florida.”

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House budget chairman starts looking for programs to cut

House Appropriations Committee Chair Carlos Trujillo promised Tuesday to get to work this year on attacking budget deficits that loom during the next two years.

Trujillo directed committee members to begin scrutinizing state spending and looking for programs to trim or cut.

At the same time, he reiterated the House leadership’s determination to look for tax cuts, including to local property taxes.

“The House is very interested in that,” he said of cutting local property taxes for schools, with the state providing money to keep schools operating. “It’ll be a real tax cut to all Floridian across the entire state.”

State government revenues are projected to remain essentially flat during the 2017-18 fiscal year, beginning July 1. But state economists project deficits of $1.3 billion the year after that, and of $1.9 billion during the subsequent year.

Trujillo’ counterpart in the Senate, Jack Latvala, a Republican from Clearwater, has said he favors letting school districts capture tax revenues derived not from increased rates but from rising property values — rather than using state money in a “buy back,” as the House proposes.

Both Trujillo and Latvala favored spending at least $300 million of the $400 million Florida expects to collect in Deepwater Horizon disaster damages in the counties most affected.

Trujillo, a Republican from Miami, said any policy differences with the Senate or Gov. Rick Scott would be subject to negotiations.

“At some point, there’s compromise in any negotiation,” Trujillo said. “I don’t think this will be any different.”

Of “member projects” — prizes legislators seek for local constituents — he said: “Every single one of those projects will be scrutinized. If there’s not a true state need, or if the money wasn’t properly used, or the money is kind of obsolete for state purposes, there’s no case to be made.”

Given what Donald Trump and congressional Republicans are saying as the Affordable Care Act, Trujillo is prepared for changes to Medicaid. “But it’s something that won’t affect this fiscal year,” he said — and maybe not even the 2018-19 fiscal year.

He expressed willingness to scrutinize tax cuts passed in recent years but didn’t envision raising taxes.

“We have a commitment to not raise taxes,” he said. “But, at the same time, as chairman of the committee, I think every member should have the right to express their concerns. Those concerns will be vetted with the committee, and the committee ultimately will make a determination.”

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Contractors mount defense of assignment of benefits agreements

Home repair contractors lashed out against calls for a crackdown on assignment of benefits agreements during testimony before a key Senate committee Tuesday, insisting such contracts protect homeowners and reputable remediation businesses.

They argued instead for increased regulation of their industry, to put fly-by-night contractors out of business.

“Would you please regulate us?” said Dave DeBlander of ProClean Restoration and Cleaning in Pensacola.

“Regulate us like mold (remediation) is regulated. Get rid of those bad companies there in South Florida. Don’t ruin it for the whole state by messing with the AOB. The AOB protects the homeowner, and we can fix it just with that regulation.”

The Florida Office of Insurance Regulation has declared assignment of benefits reform its No. 1 priority in the Legislature this year. Insurers including Citizens Property Insurance Corp. blame abuse of such agreements for escalating rates and litigation, especially in Miami-Dade, Broward and Palm Beach counties since 2012.

But during hearings Tuesday, the Banking and Insurance Committee heard from defenders of such agreements.

“AOBs protect us little guys — the David against the Goliath,” DeBlander said. Rather than take away the rights of homeowners who sign such contracts, which shift control of insurance claims from policyholders to contractors who undertake repairs, “their rights are enhanced,” DeBlander said.

“How is that homeowner going to explain to the insurance company why there’s five dehumidifiers in there, and why there’s 15 air movers,” he said. “Tear that away and the consumers on their own.”

He and other contractors blamed insurance companies for unduly delaying claims.

“They’re lying to contractors. They’re lying to homeowners. That’s what the AOB is for — to protect the homeowners and their contractors,” said Brian Christensen of Restoration 1 in Orlando.

Relying on insurance-company-preferred contractors is not the answer, he said.

“I go behind these preferred vendors all the time,” he said. “Something as simple as a couple of thousand-dollar water claim turns into a $10,000 to $20,000 mold claim because they didn’t do their job.”

AOB reforms did draw support from Cam Fentriss, legislative counsel to the Florida Roofing and Sheet Metal Contractors Association, including a ban on liens by contractors against policyholders who sign the contracts.

At one point, Sen. Gary Farmer, a Democratic trial lawyer from Broward County, launched a terse exchange with Citizens Insurance president and CEO Barry Galway over attorney costs associated with AOBs, during which Gilway interrupted the senator several times.

“Please do not interrupt me!” Farmer insisted.

Gilway said the defense costs amounted to $56 million during 2016 but that he did not know how much plaintiffs attorneys collected. “We do not have access to that information.”

“I’m sorry, but that’s just not accurate. You know what you are ordered to pay, or what you agreed to pay in settlements, to consumers’ lawyers. So you know that number. What it is?”

“I’m sorry, sir, but that is not correct. We do not know the amount of plaintiffs (attorney) costs included in a settlement.”

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Panel seeks changes to workers’ comp billing and new drug formulary

A state workers’ compensation advisory panel voted Wednesday to ask the Legislature to consider letting regulators establish a drug formulary in hopes of keeping medical costs under control.

The panel also recommended changes to the way Florida’s workers’ compensation system reimburses facilities that treat injured workers, and to tighten the guidelines for authorizing medical care.

Although formally named the Three-Member Panel, the group contains only two members at present — Insurance Commissioner David Altmaier and Tamela Perdue, a senior vice president for Sunshine Health, who represents employers. Gov. Rick Scott has not filled a vacant seat representing workers.

The panel sets reimbursement policies and payment levels for health care providers, pharmacists, and medical suppliers working with workers’ compensation claimants.

The panel will pass its recommendations along to the leaders of the House and Senate for adoption through legislation or — if lawmakers demur — possibly through regulations.

But the recommendations contemplate talks between all the parties to the workers’ compensation system in ironing out the details of any changes.

During the meeting in Tallahassee, Andrew Sabolic, assistant director of the state Division of Workers’ Compensation, said a review of workers’ complaints about the system revealed that nearly all had problems securing authorization for medical treatments.

“There are probably some behavior issues on both sides that need to be addressed,” he told the panel members.

“But, frankly, the division and maybe the Three-Member Panel have to recognize that this is the elephant in the room, possibly, that needs to be examined.”

Although Florida law sets guidelines for carriers to respond to requests for treatment, it doesn’t define “respond,” Sabolic said.

The panel adopted a recommendation to clarify the term, to improve consistency and streamline the process. Additionally, workers would have to wait 30 days to file formal petitions for benefits, to give carriers time to fully consider claims.

“We can do better. Providers can do better. Carriers can do better. They both can be held more accountable for their actions,” Sabolic said.

A number of states use drug formularies, according to a report prepared by the division. The idea is to control costs while also providing medical treatment.

The document noted increased use of compound drugs, mixed by pharmacists and not approved for use by the U.S. Food and Drug Administration.

Florida sets maximum reimbursement allowances for hospital outpatient services and those performed in ambulatory surgical centers, and the process has helped to contain costs, the document says.

But those allowances don’t cover every procedure, and there’s no process in state law to figure out whether these outlier procedures are being billed appropriately. The panel voted to recommend the Legislature either tie these reimbursements to what Medicare pays, or else establish a procedure to allow providers to supply evidence establishing that their bills are reasonable.

Sol Epstein, representing the Florida Society of Ambulatory Surgical Centers, warned that might not be possible, since it’s illegal for centers like the ones he operates in South Florida to know what their competitors charge for procedures.

In any event, he said, outlier procedures tend to be covered under maximum reimbursement allowances as they become more common.

“Although it might sound easy and make some sense,” the proposals would represent a “massive change,” he said.

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Employers Insurance Group retains Tallahassee lobbyist Donovan Brown

Donovan Brown has added Employers Insurance Group to his roster of lobbying clients.

Brown registered to represent Employers as of December. 6.

He canceled his registration to represent a dozen or so insurance and other clients when he left Colodny Fass during the summer to strike out on his own. He now operates GDB Group in Tallahassee.

His other clients include AmTrust Financial Services Inc., which sells property and casualty insurance to small businesses.

Employers specializes in workers’ compensation insurance, also to small businesses.

Brown is former state government relations counsel for Property Casualty Insurers Association of America.

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Steven Geller leaves Greenspoon Marder, cites ethics requirement

Former state Sen. Steven Geller marked his election to the Broward County Commission in November by resigning from the Greenspoon Marder law firm and launching a solo legal and lobbying practice.

Geller had been warned that under the Florida Commission on Ethics’ interpretation of state law, his continued presence at Greenspoon could prevent any of the firm’s attorneys from appearing before the commission.

So he launched the Geller Law Firm and began reregistering for his lobbying clients to reflect his changed status. All but one of his clients have followed him to his new firm, he said.

“Most local governments interpret it differently,” Geller said in a telephone interview. “Most local governments believe that if you recuse yourself, you’ve resolved the conflict. The Ethics Commission feels differently.”

Florida Statutes 112.313(7)(a) says public officials can’t work for or maintain contractual relationships with any business or agency they regulate.

It also provides:

“Nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.”

The interpretation by the state’s ethics watchdog agency is to bar appearances by anyone affiliated with a professional firm before any public body, extending to anyone else affiliated with that firm.

“It’s concerned with what might happen — a temptation to dishonor,” agency spokeswoman Kerrie Stillman said. She pointed to some commission advisory opinions, including this one.

Recusal wouldn’t cure the conflict, she said — note that the statute seeks “the full and faithful discharge” of the official’s “public duties.”

In practice, Geller said, the provision is rarely enforced.

“I made the mistake of asking,” Geller said. “Never ask.”

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Florida children’s agency helped kids go home for the holidays

More than 3,000 at-risk children will spend the holidays with their birth or adoptive families after a push by the Florida Department of Children and Families.

Agency staff worked with dependency judges and local groups to expedite the reunification of foster kids with their families or relatives, or to facilitate their adoption.

“The heart of our mission is to help families heal and reunify, or, when that is not possible, to find forever homes for children in the welfare system,” Department Secretary Mike Carroll said in a written statement.

“Being with family is an integral part of the holidays, so we are dedicated to making that happen for as many of the children we serve as possible.”

During November — National Adoption Month — the effort placed nearly 1,800 children with their birth or adoptive families, or at least arranged visits with siblings or extended family members.

The figure during December exceeded 1,400 children.

Reunification is an option “when it’s determined that it’s safe for the child to be back home,” agency spokeswoman Jessica Sims said.

Making sure of that is the job of community-based care agencies, attorneys, judges, guardians, foster families, and case managers who expedite background screenings, conduct court proceedings and make travel arrangements.

If families can’t afford any travel involved, the community organizations pick up the tab, the agency said.

Sims said this year’s efforts were among the most successful since former Secretary Bob Butterworth launched the program in 2007.

You can learn more about the adoption process here.

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TaxWatch Christmas gift: 15 ways to save Florida taxpayers money

Florida TaxWatch chief Dominic Calabro conceded Thursday that legislators might balk at spending money next year to improve government efficiency, but pointed to 15 innovations that wouldn’t cost taxpayers a dime.

They include prison reforms and requiring the governor and Legislature to pass specific legislation every year directing agency chiefs to find ways to operate more efficiently.

“Revenue projections going into the 2017 legislative session suggest there will be just enough money to fund a continuation budget. A lot of it depends on the vagaries of the national economy and the like — particularly how tourism goes,” Calabro said during a news conference.

“If ever there was a time to have an efficiency gift to the taxpayers of Florida, this is it.”

Standing in front of a Christmas tree in the government watchdog organization’s Tallahassee headquarters, Calabro undid colorful wrapping paper containing a report the Government Efficiency Tax Force released in June, which included the recommendations he emphasized Thursday.

Together with ideas that would require some up-front investment, they would save a projected $2 billion annually.

State economist project taxes will just about pay for existing programs during the fiscal year that begins July 1, although Florida faces additional demands including fighting citrus canker and replenishing beaches scoured clean of sand by Hurricane Matthew.

And that’s before lawmakers consider state leaders’ spending priorities.

What’s more, the state faces deficits of at $1.3 billion one year from now and $1.9 billion the year after that.

The efficiency task force, on which Calabro served, proposes ways to streamline government every four years. Calabro said the group’s proposed Florida Government Efficiency Act would promote efficiency every year.

The law would require governors and lawmakers to identify cost savings when proposing and approving annual state budgets. State agency leaders would provide quarterly progress reports.

The law would have to pass each year before the state budget could.

“Let’s make use of this crisis” to create “something that’s structurally beneficial year after year after year,” Calabro said.

“What we need is a mechanism that prompts them to act and has consequences if they don’t. If they don’t implement it, that means we’re not able to do the kind of cleanup of Lake Okeechobee that we would like; we’re not able to make improvements to higher education we would like; we’re not able to make some of the reforms that the House likes or the governor likes.”

The freebie list includes a number of items involving criminal justice — including changing eligibility standards to allow the release of non-violent elderly inmates to save as much as $80 million annually.

Deploying risks and needs assessments during sentencing, to identify offenders who require less supervision, would save $2.8 million every year. And it might ease overcrowding that has contributed to scandals within the Department of Corrections, Calabro said.

“We’re trying to say, ‘Let’s make sure the sentence fits the crime, and that it will actually be beneficial to us. A lot of prisons are nothing more than crime colleges,” he said. “We can reduce crime, save money, and really improve people’s lives by helping to avoid it.”

You can download the task force report, containing a complete list of the recommendations, here. Appendix A features draft language for the proposed efficiency legislation.

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Gwen Graham, in final news conference, claims $2.5 million in benefits to constituents

Congresswoman Gwen Graham said Monday that her constituent service efforts had helped people in her North Florida district secure $2.5 million in government benefits — and her thriftiness in running her office helped her return $375,000 in unspent money to Congress during the past two years.

“Our office is an example that you can get a lot done and still be fiscally conservative,” the Democrat said during a news conference at Tallahassee City Hall, where she maintains a district office.

Aides said it would be her final meeting with reporters before leaving office early next year.

“We made constituent service or No. 1 priority,” Graham said. So much so that she has discussed its importance with Neal Dunn, the Republican from Panama City elected in November to replace Graham in a radically redistricted Congressional District 2.

“I will work with him on that,” Graham said. “I hope he continues that focus on constituent services. Because, of all the things you do in Congress, there is nothing more important that helping people back home. I have had that conversation with him I know that, in his heart, he wants to do the same.”

Graham said her office helped constituents secure $489,000 in Social Security, Medicare, and Medicaid benefits; $293,000 in Veterans Administration benefits; $118,000 from the IRS; and $100,000 in Deepwater Horizon claims.

Of her office’s operating budget, Graham in prepared remarks that, “with smart management, government can provide essential services to help people while also being fiscally responsible.”

Graham has made no secret of her plans to run for governor in 2018, but also that her husband’s diagnosis with Stage IV prostate cancer might prove a complication. Steve Hurm, her husband, is due at Moffitt Cancer Center in Tampa this week for tests.

Asked about it Monday, Graham said: “My husband said to me today, ‘Do not make this about my cancer.'”

She added: “Life does throw you curve balls sometimes, but there is no one who is a bigger supporter of mine than my husband. I am looking forward to what the future holds with him by my side.”

When can we expect an announcement?

“Don’t worry — it’ll happen sooner rather than later.”

Graham previewed the outline of the case she might make to voters.

“For 20 years, there has been a Republican dominance in state government. I think that has really hurt the state of Florida,” she said.

She hopes to “put aside partisanship. Put aside politics and just work together with good people,” she said.

“We have a lot of serious issues in this state. If I make the decision to run — and, again, I’m clearly falling in that camp of knowing we need to have a Democratic governor in 2018 — what I bring will be very beneficial to our state’s future.”

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