July 30, 2020

Business Legal Updates 

Collegiate Student Athletes Can Now Receive Compensation

With the passing of Section 1006.74, F.S., effective July 1, 2020, intercollegiate athletes at a “postsecondary educational institution” (defined as a state university, a Florida College System institution, or a private college or university receiving aid under chapter 1009, F.S.) have an equal opportunity to control and profit from the commercial use of her or his name, image, or likeness, and be protected from unauthorized appropriation and commercial exploitation of her or his right to publicity, including her or his name, image, or likeness.  Such athletes may earn compensation commensurate with the market value of the authorized use of the athlete’s name, image, or likeness but the compensation cannot be in exchange for athletic performance or attendance at a particular institution and can only be paid by a third party not affiliated with the such athlete’s postsecondary educational institution.  The compensation cannot affect the intercollegiate athlete’s grant-in-aid or athletic eligibility. Disclosure to the postsecondary educational institution of such compensation is required. A five hour financial literacy and life skills workshop is required to be provided by the postsecondary educational institution to such athlete in his/her first and third academic years. Intercollegiate athletes may be represented by Florida licensed sports agents and licensed attorneys and members in good standing of the Florida Bar.  

Foreign Corporations Beware of the Florida Department of State’s Corporate Interrogatories Powers

Foreign corporations who are operating in the State of Florida without qualifying to do business and without an applicable exemption from the requirements to qualify to do business should beware.  As of July 1, 2020, new Section 607.1703, F.S. provides express power to the Florida Department of State to direct to any domestic corporation or foreign corporation and any officer or director subject to Section 607, F.S., written interrogatories to enable the department to determine if the domestic corporation or foreign corporation has complied with the provisions of Section 607, F.S.  Responses are due in writing and under oath within 30 days after the date of mailing, or within such additional time as fixed by the department. Interrogatories must be answered in writing and under oath within 30 days after the date of mailing, or within such additional time as fixed by the department. Interrogatories directed to an individual must be answered by the individual or, if directed to the corporation, they must be answered by an officer or director of the domestic corporation or foreign corporation or by a shareholder, if there are no officers or directors, or by a fiduciary, if the corporation is subject to receivership or in the hand of a trustee or other court-appointed fiduciary.  An action to collect any penalties, fees, or taxes determined to be due and owing the state and to compel any filing, qualification, or registration required by law may be brought by the department based on its findings, and the department may file a lis pendens against any property owned by the corporation without first getting approval from a court of competent jurisdiction. 

Non-Director Committee Members of a Board of Directors of a Florida Corporation Owe Fiduciary Duties 

Starting July 1, 2020, pursuant to amended Section 617.0825(6), F.S., the board of directors of a Florida not for profit corporations may create an executive committee and one or more other committees of the board and appoint directors or such other persons to serve on such committee with the majority of the persons on each committee being directors. However, a committee may comprise of less than a majority of directors if the committee is involved in the election, nomination, qualification, or credentials of directors or is involved in the process of electing directors.  With the addition of the new Section 617.0825(6), F.S., a non-director serving on a committee of the board of directors of a Florida not for profit corporation will be subject to the same responsibility and fiduciary duties with respect to activities of such committee, and the same liability protections, as a committee member who is a director.  Advisory committees are not considered committees of the board of director and hence do not have such fiduciary duties. Committees of board of directors of Florida not for profit corporations subject to the Florida condominium, cooperative or home owners associations statutes to perform the functions set forth in Sections 718.303(3), F.S., 719.303(3), F.S., or 720.303(2), or 720.3035(1), F.S., respectively.  

Florida Creates the ‘Financial Technology Sandbox’ for Tech Innovators

The Office of Financial Regulation of the State of Florida created the ‘Financial Technology Sandbox’ through the passing of new Section 559.952, F.S., effective July 1, 2020, to allow financial technology innovators to test their new financial technology products and services with consumers in a supervised, flexible regulatory sandbox, for a 24-month period without having to comply with all of the regulatory requirements under Florida’s consumer finance and the money transmitter laws (Sections 516, F.S. and 560, F.S., respectively). Limitations to the number of consumers to which the new products and services may be offered apply depending on the license approvals from the State.  A program licensee can apply for 12-month extension to the sandbox period if amendments to the general laws are required to provide the products or services in the State permanently or if an application for a license to provide the products or services in the State permanently has been filed and approval is pending.  The expectation is that FinTech innovators will use this program to test and pilot their new financial technology products and services with consumers in Florida. 

For more information about the business legal updates or if you have any questions, please contact Milton Vescovacci at mvescovacci@polsinelli.com. 

Real Estate Legal Updates

Florida Removes Witness Requirement on Lease Documents

The Governor signed House Bill 469 on June 27, 2020 regarding real estate conveyances. The Bill, which became effective on July 1, 2020, removes the requirement under Section 689.01, Florida Statutes, for a landlord to have two subscribing witnesses present when signing a lease of real property for a term of more than one year or on any such instrument pertaining to a lease of real property.  Now that this new Bill is signed, you no longer need any witnesses on a lease, an assignment of lease, a termination of lease or any instrument pertaining to a lease of real property for it to be valid. 

For more information or if you have questions about the real estate legal updates, please contact James Barnett at jbarnett@polsinelli.com or Brian Seidenberg at bseidenberg@polsinelli.com.

Florida Enacts Uniform Commercial Real Estate Receivership Act

Becoming the ninth state across the country, Florida adopted its version of the Uniform Commercial Real Estate Receivership Act (“UCRERA”), which took effect on July 1, 2020.  UCRERA, codified at Fla. Stat. § 714.01 et seq., clarifies the statewide process of securing and operating court-appointed receiverships in the commercial realm.  Before UCRERA, Florida’s common law governed commercial receiverships, making the process reliably unpredictable in any given case.  UCRERA offers procedural and jurisdictional guidance to the courts, as well as a framework governing the receiver’s duties and interactions with ownership.  The effect of a receiver’s appointment on pre-existing contracts and leases is another important touchstone in the new law.  Still, the statute is likely to be a recurring point of ambiguity and conflict as the business and legal communities alike adapt to its implementation.  In particular, the pre- and post-judgment sale/lienholder notice provisions (s. 714.16) offer an intriguing foreclosure alternative, but are sure to give title insurers a lot to consider in terms of policy issuance—not to mention the courtroom ramifications.  Without question, a host of transactional and litigation issues centered on UCRERA will be surfacing in the days ahead—especially given the current business climate.   

For more information or if you have questions about the real estate legal updates, please contact Henry Bolz at hbolz@polsinelli.com.

Health Care Legal Updates

Direct Care Workers

CS/CS/HB 607 — Authorizes an Advanced Practice Registered Nurse (APRN), who meets certain criteria, to engage in “autonomous practice” in primary care, including family medicine, general pediatrics, and general internal medicine, or, if applicable, midwifery, without physician supervision and without a written supervisory protocol, and requires said APRN to report to the Department of Health (DOH) certain adverse incidents within 15 days; prohibits an insurer from requiring an insured to receive services from an APRN engaging in autonomous practice instead of a physician.

Health Regulation

CS/CS/CS/HB 713 –

  • Repeals a health care practitioner’s failure to repay student loans as grounds for discipline by the DOH;
  • Requires dentists and dental hygienists to report adverse incidents to the Board of Dentistry;
  • Grants DOH authority to adopt rules for the Conrad 30 Waiver Program;
  • Increases the time period that cancer centers may seek National Cancer Institute designation;
  • Modifies the DOH’s rulemaking authority pertaining to minimal standards for ground ambulances;
  • Requires an applicant for a health care professional license to provide his/her date of birth on applications;
  • Creates an exception to the 15% cap for self-referral for diagnostic imaging services normally imposed on solo or group practice settings for group practice entities that own an ACO or an entity operating under an advanced alternative payment model, if certain requirements are met;
  • Requires dentists and dental hygienists to report adverse incidents to the Board of Dentistry;
  • Requires a dental laboratory to be inspected at least biennially;
  • Requires the DOH to issue a single prosthetist-orthotist license to qualified applicants; and
  • Adds battery against a vulnerable adult or a patient of certain facilities to the list of level 2 background screening disqualifying offenses for health care practitioners and employees of certain health care facilities.

Agency for Health Care Administration

CS/CS/HB 731 addresses duties of AHCA relating to the regulation of health care facilities and providers.

  • Removes provisions requiring fixed inspection time frames for certain AHCA regulated facilities/providers;
  • Amends the requirement for AHCA to inspect nursing homes with records of poor performance to require AHCA to conduct biannual licensure surveys until the facility has two consecutive licensure surveys without a citation for a Class I or Class II deficiency;
  • Revises definition of home health agency providing that an agency that only provides home health services, and no staffing services, must be licensed as a home health agency.
  • Creates an exemption to health care clinic licensure for:
    • Certain federally certified providers;
    • Entities that are, directly or indirectly, under the common ownership of or that are subject to common control by a mutual insurance holding company which has $1 billion or more in total annual sales in Florida; and Medicaid providers;
  • Approves risked-based licensure inspections for nurse registries, home medical equipment providers, and health care clinics, whereby AHCA has flexibility to inspect high-performing providers less frequently than poor performers.
  • Authorizes AHCA to issue a provisional license to all providers/facilities;
  • Amends requirements for the approval of comprehensive emergency management plans for newly-licensed facilities;
  • Permits AHCA to collect legal fees incurred for Medicaid cases if AHCA prevails;
  • Clarifies AHCA’s authority to conduct retrospective reviews of Medicaid hospital claims and recover overpayments;
  • Revises background screening regulations for health care provider staff, and allows a person who is currently employed or contracted with a health care facility, who was previously qualified pursuant to background screening, to apply for an exemption if the law changed to add a disqualifying offense that was not a disqualifying offense before the person’s last screening. 
  • Aligns the state Medicaid anti-kickback law with the federal anti-kickback law by specifying that the Medicaid anti-kickback prohibitions in the Medicaid statute do not apply to any discount, payment, waiver of payment, or payment practice not prohibited under the federal anti-kickback law;
  • Requires AHCA to re-procure contracts with Medicaid managed care plans every 6 years, instead of every 5 years, beginning with the contract procurement process initiated during the 2023 calendar year; and
  • Repeals multi-phasic health testing center licensure.

Assisted Living Facilities

CS/CS/HB 767 amends various statutes related to the regulation of an assisted living facility (ALF). 

  • Permits the use of certain physical restraints in ALFs, in accordance with AHCA rules.
  • Allows ALFs to admit residents that require 24-hour nursing care, residents that are receiving hospice services, or residents who are bedridden, if certain conditions are met. 
  • Requires each resident to have a medical examination performed no longer than 60 days prior to or up to 30 days after admission to the ALF.
  • Clarifies that an ALF may submit a comprehensive emergency management plan up to 30 days after receiving a license.
  • Amends several provisions applicable to the ALF administrator core training requirements and examination.

Consultant Pharmacist License

Allows individuals licensed as consultant pharmacists to provide medication management services in a health care facility within the framework of a written collaborative practice agreement between the pharmacist and a health care facility medical director or a physician. A consultant pharmacist may only provide medication management services, conduct patient assessments, and order and evaluate laboratory or clinical testing for patients of the physician with whom the consultant pharmacist has a written collaborative practice agreement. A health care facility can be an ASC, hospital, substance abuse treatment center, inpatient hospice, or a nursing home.

Substance Abuse Services

CS/CS/SB 1120 –The Florida’s Patient Brokering Act (the PBA), Section 817.505, Florida Statutes, was revised in 2019 so that exception (3)(a) would only apply to arrangements that are “expressly authorized” by the anti-kickback law, rather than prohibited thereby.  CS/CS/SB 1120, which became effective on July 1, 2020, returns the PBA to its pre-2019 language so that the PBA now applies to any discount, payment, waiver of payment, or payment practice not prohibited by the federal anti-kickback law or its regulations.

For more information or if you have questions about the health care legal updates, please contact Marisa Rodriguez Wilson at marisa.wilson@polsinelli.com.