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COVID-19 UPDATE: STATE AND FEDERAL ASSISTANCE FOR INDIVIDUALS AND SMALL BUSINESS OWNERS

Responding to the ongoing global Coronavirus pandemic, government, at all levels, has been taking drastic measures to help combat the spread of COVID-19 and to provide economic assistance to the individuals and businesses that have been impacted. This article highlights some of the key actions taken by state and federal government

Economic Assistance

In an effort to slow the spread of COVID-19, President Trump issued the national guidelines “15 Days to Slow the Spread” and, after briefly suggesting that businesses and people could potentially return to normal by Easter, extended the National Guidelines for at least another 30 days. Florida Governor Ron DeSantis initially resisted calls for a state-wide lockdown but has now issued an Executive Order providing for “Safer at Home” measures including the closure of all non-essential businesses, and directing that citizens remain at home except for essential services and functions. The economic fallout has been dramatic as the economy grinds to a halt. Global economic recession is now a reality, with the only question being how long will the recession last and when can the country get back to work.

While all sectors of the economy have been dramatically impacted, small businesses and individual employees have been especially hard hit. With the need to continue social distancing guidelines and business closures, the Federal Government and the State of Florida have implemented economic packages to provide emergency relief and economic stimulus for the affected businesses and the people who were employed by them.

The CARES Act: On Friday, March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law. This law provides an estimated $2 trillion in relief to individuals and businesses suffering due to COVID-19.

  • Individuals: Under the CARES Act:
    • Individuals will receive a check of up to $1,200 per person and $500 per child based upon the individuals income;
    • If you are on unemployment, the amount of time you can be on unemployment has increased by 13 weeks and the federal government will add an additional $600 per week to the unemployment pay for up to four months;
    • All federal held student loan payments, including interest, are deferred through September 30, 2020 without penalty to the borrower;
    • A Pandemic Unemployment Assistance program for gig workers and freelancers is established;
    • The time to file 2019 tax returns is extended until July 15, 2020; and
    • All health insurance plans are mandated to cover COVID-19 testing, vaccination and treatment,
  • Small Businesses: The CARES Act defines a small business as one with 500 or fewer employees. For these small businesses, the CARES Act:
    • Provides $10 billion for grants of up to $10,000 to provide emergency funds for small businesses to cover immediate operating costs;
    • Allows for the Small Business Administration to provide loans of up to $10 million per business. Any funds from that loan that are used to maintain payroll, keep workers on the books or pay for rent, mortgage and existing debt could be forgiven, provided that workers stay employed through the end of June of 2020; and
    • For businesses with existing SBA loans, $17 billion has been allocated to help pay for up to six months of payments.
    • With regards to whether a business has fewer than 500 employees, the SBA will be applying its “affiliation” rules to determine if a business is actually “controlled” by another business. If so, those businesses will be treated as a single business for the purposes of determining the number of employees. SBA’s guide on “affiliations” can be found here.
  • Larger Businesses and Targeted Businesses: In addition to small businesses, the CARES Act provides some relief to larger businesses and also to specific types of businesses. These include:
    • The “Main Street Business Lending” program which will be administered by the Department of the Treasury and Federal Reserve. This program provides:
      • $25 billion in loans or loan guarantees for passenger air carriers, aviation repair stations, and airline ticket agents;
      • $4 billion in loans or loan guarantees for cargo air carriers;
      • $17 billion in loans or loan guarantees for businesses critical to maintaining national security;
      • $454 billion (plus any unused amounts from the programs above) for loans, loan guarantees and other investments in support of the Federal Reserve’s lending facilities that support eligible businesses, states and municipalities.
    • Tax credits for businesses that keep employees on the payroll;
    • For hospitals, the CARES Act:
      • Sets up a $100 billion emergency fund to keep hospitals and employees afloat;
      • Give hospitals that treat Medicare COVID-19 patients a 20% payment increase for all services provided; and
      • Lifts the planned 2% Medicare sequestration payments cuts to providers until the end of this year.
      • Providing $1.32 billion in immediate additional funding for community health centers; and
      • Significantly expanding the availability and use of telehealth.

The Florida Small Business Emergency Bridge Loan Program: The Florida Department of Economic Opportunity administers this Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. These short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the Program. The application period for this short-term interest-free loan opened on March 17, 2020 and will continue at least through May 8, 2020. The highlights of the program are:

  • Short-term interest-free loans in an amount up to $50,000 for business owners.
  • Loans to be repaid without interest within one year.
  • Interest rates after one year go to 12%.
  • Purpose of the Program is to provide short-term liquidity to small business owners to remain open despite economic impacts of the Coronavirus pandemic.

“Families First Coronavirus Response Act” (H.R. 6201): The key features place new responsibilities on employers to assist employees who are affected when the employee or a family member is affected by Coronavirus. The Bill includes the following:

  • Applies to businesses with fewer than 500 employees.
  • Paid Family and Medical Leave for 12 weeks (the first 14 days are to be paid under sick leave provisions).
  • This leave benefit covers employees who have been working for at least 30 calendar days.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • Paid Sick Leave provisions of the Bill also require employers with fewer than 500 employees to provide full-time employees two weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19 (e.g., self-isolating, doctors’ visits, etc.).
  • Part-time employees are also covered and entitled to paid sick leave for the number of hours equal to the number of hours they work, on average, over a two-week period.
  • Employers must compensate employees for any paid sick time they take at their regular rates of pay.
  • Employers will be required to post a notice informing employees of their rights to leave.
  • As currently drafted, the Bill expressly provides that it does not preempt existing state or local paid sick leave entitlements.
  • Employers will be provided with tax credits to offset their costs in meeting the new paid leave mandates.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • The Bill provides $1 billion in emergency unemployment insurance (UI) relief to the states: $500 million for costs associated with increased administration of each state’s UI program and $500 million held in reserve to assist states with a 10 percent increase in unemployment. Besides the necessary increase in unemployment, in order to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.

Florida Department of Emergency Management – Emergency Requisition Requests: For healthcare facilities unable to get necessary supplies, including personal protective equipment, N95 Masks, and COVID-19 tests, the Florida Department of Emergency Management has created a COVID_19 Emergency Requisition Request system that allows the facilities to request necessary equipment when it is unable to obtain it anywhere else. The form for this can be found here.

Actions Taken to Slow/Stop the Spread of COVID-19

The Executive Office of the Governor: As of the date of this article, the Governor has issued numerous Executive Orders aimed at slowing or stopping the spread of COVID-19. These orders include:

  • EO #2020-51 establishing a coronavirus response protocol and directing a public health emergency;
  • EO #2020-52 declaring a state of emergency;
  • EO #2020-68 suspending bars, pubs, and nightclubs and limiting capacity at restaurants, and limiting the size of groups at public beaches;
  • EO #2020-69 allowing local government meeting to occur electronically;
  • EO #2020-70 restricting restaurants to take out food service only and suspending movie theatres, concert houses, auditoriums, playhouses, bowling alleys, arcades, gymnasiums, fitness studios and beaches in Broward and Palm Beach counties;
  • EO #2020-71 restricting on-site alcoholic sales, but allowing restaurants to sell packaged alcohol to-go and closing gyms and fitness centers;
  • EO #2020-72 prohibiting any non-emergency or elective emergency procedure or surgery;
  • EO #2020-80 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut by airplane;
  • EO #2020-82 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut regardless of how they arrive;
  • EO #2020-83 advising people over the age of 65 or with other health issues to stay at home and advising against any gathering, including work, where 10 or more people are together.
  • EO #2020-91 and 92, commonly referred to as the “Safer at Home” order, closing all non-essential businesses, and directing that citizens remain at home except for essential services and functions.

Florida State Agencies: In addition to the actions taken by the Governor, state agencies are also taking action.

  • All agencies have suspended licensing, and renewal requirements for existing licensed professionals for at least 30 days.
  • Florida Department of Emergency Management: FDEM has activated Level 1, which is a full scale Activation of State Emergency Response Teams and has mobilized the national guard. Additionally, FDEM has:
    • Established a grant program to assist Florida Counties;
    • Worked with the federal government to provide needed medical supplies, including mobile intensive care units, ventilators, hospital beds, personal Protective equipment,. N95 face masks, and other necessary medical supplies.
    • As discussed above, FDEM has established a process to allow healthcare facilities to request these needed items.
    • FDEM, in conjunction with the Agency for Healthcare Administration, have implemented emergency rules restricting who can visit nursing homes and assisted living facilities.
  • Florida Department of Highway Safety and Motor Vehicles: Driver license renewal requirements have been suspended for at least 30 days.
  • Florida Department of State: The Florida Department of State has extended the annual report filing deadline for businesses until June 30, 2020.

Centers for Medicare and Medicaid Services (“CMS”): CMS, in conjunction with Florida Medicaid, has also taken steps to stop the spread of COVID-19 and provide additional access to care to patients that have or may have COVID-19. These steps include:

  • Confirmation that Florida Medicaid will cover all medically necessary services related to testing and treatment of COVID-19;
  • Waiving prior authorization for medically necessary services and supplies for Florida Medicaid patients;
  • Removing limits on prescription refills and allowing for 90-day supplies of medications for Florida Medicaid patients;
  • Waiving co-pays for all services for Florida Medicaid patients; and
  • Waiving Medicare Telehealth Reimbursement Restrictions.

Schools and Universities: School districts and universities across the state are making significant changes to ensure the safety of their students, staff, and the community at large. These include:

  • Extending spring break until March 30, 2020 (with the exception of Collier, Duval, Sumter, and Union counties);
  • Implementing distance learning for all K-12 students from March 30 through at least April 15th;
  • Cancelling required student assessments and adjusting graduation and grade promotion requirements accordingly;
  • Cancelling school grades;
  • Establishing programs to provide technology and internet access to low-income K-12 students to access distance learning;
  • Colleges and universities are directed to use virtual or remote learning for the remainder of the spring semester and all other activities and gatherings have been cancelled or postponed; and
  • Colleges and universities have cancelled May 2020 commencement ceremonies and are considering extending the spring semester through June of 2020.

County and other Local Government Actions: Counties and other local governments are also taking action to stem the tide of COVID-19. These actions include:

  • Orange and Osceola County have ordered all theme parks to close and imposed curfews;
  • Miami-Dade County has ordered parks and public beaches to close;
  • Many other counties have also closed or limited beach access;
  • Lake County has issued emergency orders requesting that residents over 65 shelter in place and requesting that employers with residents over the age of 65 to allow working from home.
  • The Florida Keys have closed to visitors; and
  • Some counties and cities have also closed boat ramps and restricted access to boating and boat gatherings.

Stay Up To Date

Additionally, both the state and federal governments are providing numerous online resources to keep people informed of COVID-19 and how to protect themselves. These sites include:

Conclusion

COVID-19 is an unprecedented challenge for everyone. If you have concerns as to how to access the resources described in this article, please consider contacting an attorney at Smith & Associates to discuss your rights under these new laws and regulation.

COVID-19 – Economic Stimulus Packages for Employers

During the ongoing national economic and health care crisis caused by the global coronavirus pandemic, Smith & Associates, will remain open and available to assist our clients with their legal needs. We have received numerous inquiries about the recently enacted state and federal programs that are now available to address the economic dislocation caused by the pandemic. The good news is that there are federal and state programs that can provide immediate financial assistance in these stressful times. Since there is always much confusion when dealing with applications and the required supplemental documents that need to be gathered, we are here to assist you by explaining the programs available and the best options for you. Below is a brief description of some of the available financial assistance program.

Paycheck Protection Program (PPP) Loans

The Paycheck Protection Program is part of the federal economic stimulus bill known as the CARES Act. This program is intended to provide eligible small businesses with eight weeks of cash-flow assistance through a 100% federally guaranteed loan from the U.S. Small Business Administration. Provided the funds are used to maintain employee payroll and other business expenses as detailed below, the loan amount will be forgiven for those expenses incurred in the eight weeks following the approval of the loan. In other words, a small business owner who meets the requirements will receive a cash infusion with no required repayment if they meet the conditions set forth in the Act.

Who is eligible?

Small businesses with 500 employees or fewer and other eligible entities (includes corporations, partnerships, sole proprietors, independent contractors, self-employed individuals, 501(c)(3) and 501(c)(19) organizations) will be able to apply for funding in the form of an SBA loan to offset harm to the business caused by the coronavirus crisis between February 15, 2020 and June 30, 2020. This program would be retroactive to February 15, 2020, in order to help bring workers who may have already been laid off back onto payrolls.

How much may I borrow?

Up to 2.5 times your monthly payroll costs as reflected in your most recent tax return (up to a maximum amount of $10 Million), which includes salaries, wages, tips, payments for sick and medical leave, insurance premiums, and state and local taxes assessed on the compensation of employees. Eligible payroll costs do not include compensation of individual employees for amounts exceeding $100,000 annually (this would be pro-rated for the relevant period). Any loan payments will be deferred for periods of six months and in some cases a maximum deferral of up to a year. No collateral or personal guarantees are required for loans. You do not have to provide financial qualifications for the loan. Neither the government nor lenders will charge small businesses any fees.

What can I use the loan for?

Payroll costs; mortgage, rent and utility costs; interest on debt obligations incurred prior to February 15, 2020.

Can my loan be forgiven?

You will not be required to pay back the portion of the loan used for the above expenses paid within the eight-week period after the loan closing date. HOWEVER, if the business does not retain or re-hire employees at the same level as the previous 12-month period, the loan amount forgiven will be reduced in proportion to any reduction in employees and/or reduction in pay of any employee beyond 25%. Businesses that rehire workers previously laid off by June 30, 2020 will not be penalized for having reduced payroll at the beginning of the period.

Forgiven expenses include:

  1. Up to eight weeks of payroll expenses in the form of wages, salaries, commissions, tips, health insurance costs, and retirement benefits.
  2. Mortgage payments on the business property.
  3. Rent payments for the business property.
  4. Utility payments.

What happens after the forgiveness period?

Any loan amounts not forgiven are carried forward as an ongoing loan with max terms of 10 years, at a maximum interest rate of 4% (the amount will be determined by the SBA lender at the time of the loan). Principal and interest will continue to be deferred for a total of six months with the potential to defer for up to a year after disbursement of the loan. The clock does not start again. (Be on the lookout for the Main Street Business Lending Program soon to be announced by the Federal Reserve as a complement to the PPP.)

SBA Economic Injury Disaster Loans & Emergency Economic Injury Grants

These grants provide an emergency advance of up to $10,000 to small businesses and private non-profits harmed by COVID-19 within three days of applying for an SBA Economic Injury Disaster Loan (EIDL). To access the advance, you first apply for an EIDL and then request the advance. The advance does not need to be repaid under any circumstance, even if you are not approved for the loan, and may be used to keep employees on payroll, to pay for sick leave, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, and rent or mortgage payments.

Who is eligible?

Small businesses with 500 or fewer employees including sole proprietorships, with or without employees; independent contractors; cooperatives and employee owned businesses; and tribal small businesses. Small business concerns and small agricultural cooperatives that meet the applicable size standard for SBA are also eligible, as well as most private non-profits of any size.

What are the loan terms if I’m approved?

A maximum low interest loan of $2 Million, determined by SBA; up to a 30-year term and amortization (determined by the SBA on a case-by-case basis) and no payments for the first 6-12 months. Within 72 hours of submitting a complete application, you can receive a grant of $10,000 if you have been in business since January 31, 2020. This does not have to be paid back, even if the loan is not approved. The deadline to apply is December 18, 2020.

If I get an EIDL and/or an Emergency Economic Injury Grant, can I get a PPP loan?

Whether you’ve already received an EIDL unrelated to COVID-19 or you receive a COVID-19 related EIDL and/or Emergency Grant between January 31, 2020 and June 30, 2020, you may also apply for a PPP loan. If you ultimately receive a PPP loan or refinance an EIDL into a PPP loan, any advance amount received under the Emergency Economic Injury Grant Program would be subtracted from the amount forgiven in the PPP. However, you cannot use your EIDL for the same purpose as your PPP loan. For example, if you use your EIDL to cover payroll for certain workers in April, you cannot use PPP for payroll for those same workers in April, although you could use it for payroll in March or for different workers in April.

Florida Small Business Emergency Bridge Loan Program

These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.

Who is eligible?
Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020 and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.

How much may I borrow?

Up to $50,000 per eligible small business. Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.

What are the loan terms?
One year and loans will be interest-free for the loan term (one year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full.

When should I apply?

Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.

Families First Coronavirus Response Act (FFCRA)

This Act imposes new requirements on small business employers to provide employees with paid sick leave for COVID-19 related illnesses and expanded family and medical leave with 2/3 pay for specified reasons related to COVID-19.

Who is a covered employer?

Covered Employers include certain public employers, and private employers with fewer than 500 employees.

What are qualified reasons for leave?

There are six qualifying reasons for an employee to take leave:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in section 1 or self-quarantine as described in section 2;
  5. The employee is caring for his or her child whose school or place of care is closed or unavailable due to COVID -19-related reasons; and
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

What is the duration of leave and the rate of pay?
An employer must provide up to two weeks of paid sick leave to qualified employees, paid at:

  • 100% of their regular rate of pay (up to $511 per day and $5,110 total) if the leave is for any of reasons 1 through 3 above; or
  • 2/3 of their regular rate of pay (up to $200 daily and $2,000 total) if the leave is for reasons 2 or 6 above.

Additionally, if the employee is taking leave due to reason 5, they are entitled to up to 12 weeks of paid leave at 2/3 their hourly rate (up to $200 daily and $12,000 total). If the employee has been employed for at least 30 days, the employee may be entitled to an additional 10 weeks of 2/3 pay if it is being taken for reason 5.
For part-time employees, the regular rate of pay is calculated based on the normal hours that the employee would have been expected to work during that weekly time period.

For example, workers can take time off if they’re isolated because of “a broad range of governmental orders,” including stay-at-home orders or mandates that “otherwise restrict” their mobility. However, they’ll only qualify if the order is what prevents them from working. A worker can’t take leave if they can telework or if they wouldn’t have work even without the isolation order, such as if they work for a coffee shop that has shuttered because of low business. Additionally, workers can use leave intermittently by agreement with employers and that employers can make workers take accrued vacation days or other paid time off at the same time they take leave to care for a child.

What Employees qualify for Family Medical Leave due to COVID-19 related reasons?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers.

What if my business cannot afford to make these payments?

The long-term leave portion of the law includes a provision exempting businesses with fewer than 50 workers for whom granting leave would jeopardize business viability.

The regulation lays out three circumstances that qualify an employer for this exemption. Under the rule, these small business employers will not have to provide leave if doing so would raise expenses above revenue such that the employer would “cease operating at a minimal capacity”; the absence would “pose a substantial risk” to the employer’s financial health or operations because of the requesting worker’s skills, knowledge or duties; or the employer can’t find enough workers to perform the work of the employee requesting an absence. Such employers are not exempt from the two-week sick time requirement unless the worker is requesting time off to care for a child whose school has closed, however.

Are there any benefits for the employer?

While the FFCRA imposes significant financial obligations on small businesses as described above, it also ensures that those financial obligations are 100% refundable. Employers who provide the leave and pay described above are entitled to 100% reimbursement. This reimbursement includes the employer’s share of the Medicare tax imposed on those wages and its cost of maintaining health insurance coverage for the employee during the leave period. To ensure that businesses already struggling due to the COVID-19 pandemic receive this reimbursement quickly, the IRS has set up a two-pronged process for reimbursement.

The first prong allows employers to deduct from their Federal payroll taxes the amounts they spent complying with the employee sick leave portion of the FFCRA. Thus, employers will immediately receive reimbursement up to the amount of their payroll taxes. The second prong allows the employer to submit forms for reimbursement of costs above the amounts covered by the payroll tax withholding, and even allows for advanced reimbursement for anticipated overages. The IRS is promising a fast turn-around time on these refunds (two weeks), to help ensure that employers are getting these refunds quickly.
Can I require that the employee provide documentation of the COVID related illness such as a doctor’s order?
Yes, and in order for the employer to get the credit discussed above, they must maintain sufficient documentation to show the employee’s leave was for one of the qualifying reasons.

Conclusion

In conclusion, there are programs available to help you during this unprecedented time. We are here to assist in finding the right program for you. Call or email us, we will help!

Employer’s Guide to the new FFCRA Paid Sick Leave Requirements

Updated April 2, 2020 with information from the Department of Labor’s new rule.

With the flurry of new legislation in response to the COVID-19 pandemic, many companies are concerned about what benefits they have to provide their employees regarding paid sick leave, especially related to COVID-19, and what, if any, programs are available to help them bear the costs of these new employee benefits.

In short, while employers are obligated to grant employees paid sick time in accordance with these new laws, the employer will receive immediate reimbursement in the form of a credit against any Federal withholding tax amounts due to the IRS and an additional cash refund if the credit is insufficient to offset the paid leave granted to employees.

Employee Rights and Benefits

The Families First Coronavirus Response Act (“FFCRA”) granted broad, new paid sick leave rights to employees of qualified employers – namely any private business with fewer than 500 employees. These new provisions, at least currently, are limited in time and only apply from April 1, 2020 through December 31, 2020.

Importantly, the FFCRA established six qualifying reasons for an employee to take leave. These reasons are:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provide to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in section 1 or self-quarantine as described in section 2;
  5. The employee is caring for his or her child whose school or place of care is closed or unavailable due to COVID -19-related reasons; and
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

Further, the FFCRA provides that an employer must provide up to two weeks of paid sick leave to qualified employees, paid at:

  • 100% of their regular rate of pay (up to $511 per day and $5,110 total) if the leave is for any of reasons 1 through 3 above; or
  • 2/3 of their regular rate of pay (up to $200 daily and $2,000 total) if the leave is for reasons 2 or 6 above.

Additionally, if the employee is taking leave due to reason 5, they are entitled to up to 12 weeks of paid leave at 2/3 their hourly rate (up to $200 daily and $12,000 total). If the employee has been employed for at least 30 days, the employee may be entitled to an additional 10 weeks of 2/3 pay if it is being taken for reason 5.

For part-time employees, the regular rate of pay is calculated based on the normal hours that the employee would have been expected to work during that weekly time period.

As with the FMLA, the employee must provide notice and that notice must only be given within a reasonable time given the circumstances. However, given the reasons for leave, reasonable notice could very well be shortly before or even shortly after the leave begins.

Additionally, documentation as to the reason for the leave is required. This documentation must include a signed statement by the employee containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. Additionally, this documentation must include whatever additional information is necessary to show that the employee is lacking leave for a qualified reason. For example, if the employee is taking leave due to a government quarantine, the name of the government entity that ordered the quarantine is required in the documentation. An employee requesting paid sick leave due to a doctor-imposed quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. An employee requesting paid sick leave to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

The Department of Labor (“DOL”), in a temporary rule issued April 1, 2020, has also clarified that employers are not required to pay this sick leave if there is no work for the employee. The DOL provided the following example:

For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

Additionally, the temporary rule provides that if an employee subject to an isolation order is able to telework, that employee is not eligible for the paid sick leave benefits of the FFCRA.

Finally, the employer must post in a conspicuous place notice of these FFCRA requirements. The Department of Labor poster containing these rights is available here.

Employer Benefits, and Potential Exemptions

While the FFCRA imposes significant financial obligations on small businesses as described above, it also ensures that those financial obligations are 100% refundable. Following the passage of the FFCRA, the IRS issued guidance to businesses as to how to obtain refunds. This guidance was adopted into law with the passage of the CARES Act.

Importantly, the FFCRA provides that employers who provide the leave and pay described above are entitled to 100% reimbursement. This reimbursement includes the employer’s share of the Medicare tax imposed on those wages and its cost of maintaining health insurance coverage for the employee during the leave period. To ensure that businesses already struggling due to the COVID-19 pandemic receive this reimbursement quickly, the IRS has set up a two-pronged process for reimbursement.

The first prong allows employers to deduct from their Federal payroll taxes the amounts they spent complying with the employee sick leave portion of the FFCRA. Thus, employers will immediately receive reimbursement up to the amount of their payroll taxes.

To the extent the reimbursement exceeds the payroll taxes, the IRS has created a second prong that allows the employer to submit forms for reimbursement of costs above the amounts covered by the payroll tax withholding, and even allows for advanced reimbursement for anticipated overages. The IRS is working on drafts of these forms and they are expected to be final in the very near future. Further, the IRS is promising a fast turn-around time on these refunds (two weeks), to help ensure that employers are getting these refunds quickly.

As mentioned above, the IRS is requiring that employers who claim this credit maintain sufficient documentation to show that the employee’s leave was for one of the qualifying reasons.

Finally, if the company has less than 50 employees, it may be eligible for an exemption to the requirement that the employer cover leave for reason number 5. To qualify, the employer must believe that providing said leave would “jeopardize the viability of the business as an ongoing concern.” The DOL’s temporary rule sets forth the criteria for determining if a business qualifies for this exemption:

  1. Such leave would cause the small business employer’s expenses and financial obligations to exceed available business revenue and cause the small business employer to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small business employer because of their specialized skills, knowledge of the business, or responsibilities; or
  3. The small business employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small business employer to operate at a minimal capacity.

If a company believes it qualifies for this exemption, it must keep documentation and records that support its reasoning. However, that documentation should not be submitted to DOL.

Conclusion

If you need any assistance in implementing the new FFCRA sick leave provisions, obtaining the refund, or determining if you qualify for the exemption, you should contact an attorney at Smith & Associates to discuss your rights and options.

New Law Allows Pharmacists to Diagnose and Treat Certain Medical Conditions

On March 11, 2020, Governor Ron DeSantis signed HB 389 into law. This law allows qualified pharmacists the ability to treat chronic illnesses and to test, diagnose, and treat certain minor, non-chronic illnesses.

Treatment of Chronic Illnesses

This new law creates Florida Statute § 465.1865 entitled “Collaborative Pharmacy Practice for Chronic Health Conditions.” This section sets forth the requirements for a pharmacist to treat certain chronic health conditions. Importantly, these chronic health conditions are limited to:

  • Arthritis;
  • Asthma;
  • Chronic obstructive pulmonary diseases;
  • Type 2 Diabetes;
  • Human immunodeficiency virus or acquired immune deficiency syndrome;
  • Obesity; and
  • Other chronic conditions that the Board of Pharmacy may allow by future rule making.

Fla. Stat. § 465.1865(1).

To be able to treat these chronic conditions, a pharmacist must enter into a “Collaborative Pharmacy Practice Agreement” with the patient’s licensed physician. This agreement must include:

  • The name of the patient(s) for whom a pharmacist may provide services;
  • The chronic health condition(s) to be managed;
  • The specific drugs to be managed;
  • The circumstances under which the pharmacist may order and evaluate laboratory or clinical tests;
  • The conditions upon which the pharmacist must notify the physician;
  • The beginning and end dates of the treatment; and
  • A statement that the agreement can be terminated at any time by either the pharmacist or the physician.

Fla. Stat. § 465.1865(3)(a).

Additionally, before a pharmacist can treat these chronic conditions, the pharmacists must be certified by the Board of Pharmacy. To obtain this certification, the pharmacists must:

  • Have an active pharmacy license;
  • Have a Doctor of Pharmacy or have completed five years as a licensed pharmacist;
  • Complete a 20-hour course on Collaborative Treatment of Chronic Health Conditions that is approved by the Board of Pharmacy;
  • Maintain at least $250,000 of professional liability insurance; and
  • Have an established system for keeping patient records.

Fla. Stat. § 465.1865(2).

As this law was recently passed, rulemaking has not yet begun. However, as the Board of Pharmacy promulgates rules on collaborative treatment of chronic illnesses, we will provide update with any new developments.

Treatment of Non-Chronic Health Conditions

Additionally, the new law created Florida Statute § 465.1895, which allows for the testing and treatment of minor, non-chronic health conditions by a pharmacist. Minor, non-chronic health conditions include:

  • Influenza;
  • Streptococcus;
  • Lice;
  • Certain skin conditions; and
  • Minor, uncomplicated infections.

Fla. Stat. § 465.1895(1)(a).

Much like the treatment of chronic conditions, a pharmacist who wishes to treat non-chronic, minor illnesses must do so under the supervision of a physician and pursuant to written protocol between the pharmacist and the physician. This protocol must contain:

  • The categories of patients the pharmacist s authorized to treat;
  • The physician’s instruction for obtaining relevant patient medical history;
  • The physician’s instructions for the treatment of the condition based on the patients age, symptoms, and test results; and
  • A process and schedule for the physician to review the pharmacist’s actions and for the pharmacist to notify the physician of his or her actions.

Fla. Stat. § 465.1895(5).

As rule making progresses, new requirements may be added to this list.

Finally, any pharmacist who wishes to treat minor, non-chronic health conditions must be certified by the Board of Pharmacy to do so. To obtain this certification, the pharmacist must, among other things:

  • Hold an active license to practice pharmacy in Florida;
  • Take a 20-hour board approved education course on assessing and treating minor, non-chronic health conditions;
  • Maintain at least $250,000 of liability coverage;
  • Upon request, furnish patient health care records to a health care practitioner designated by the patient; and
  • Maintain patient records for five years.

Fla. Stat. § 465.1895(2).

Conclusion

This new law takes effect on July 1, 2020. Right now, the Board of Pharmacy is in the beginning stages of developing rules to implement this new law. As these rules progress, we will provide any important updates.

If you are a pharmacist who would like to take advantage of this new law and have questions about how to obtain licensing, you should contact an attorney at Smith & Associates to discuss your options.

Autonomous Practice and Nurse Practitioners: What the New Florida Law Holds in Store

On March 11, 2020, only hours after it was passed by the Florida Legislature, Governor Ron DeSantis signed HB 607 into law. Importantly, this new law allows “advanced practice registered nurses” to be licensed for autonomous practice. Once this law takes effect on July 1, 2020, qualified nurse practitioners will be able to get licensed for autonomous practice and be able to set up their own practices without the need for physician supervision. However, with this new opportunity, new issues arise for nurse practitioners who want to set up their own shop. This article discusses the requirements to be licensed for autonomous practice and some issues that nurse practitioners may face if they want to set out on their own.

Requirements to Be Licensed for Autonomous Practice

HB 607 creates Section 464.0123, Florida Statutes, entitled “Autonomous Practice by an Advanced Practice Registered Nurse.” This new law sets forth the requirements for an advanced practice registered nurse to be licensed to practice autonomously. Specifically, this new law requires that an applicant for autonomous practice:

  • Hold an active, unencumbered license to practice advanced nursing;
  • Not have any disciplinary action within the past five years;
  • Completed 3,000 hours of clinical practice (including clinical instruction hours) within the past five years; and
  • Completed three graduate level semester hours in differential diagnosis and three graduate level semester hours in pharmacology within the past five years.

Fla. Stat. § 464.0123 (1).

The statute also provides that the Board of Nursing may add additional requirements through the rulemaking process. While the rulemaking process has not yet begun, any nurse practitioner looking to start an autonomous practice should keep abreast of this process.
Additionally, the new law requires that autonomous nurse practitioners must demonstrate the financial responsibility to pay any malpractice claims that may arise. This can be accomplished by either of the following methods:

  • Maintaining professional liability coverage in an amount not less than $100,000 per claim, with a minimum annual aggregate of not less than $300,000; or
  • Maintaining an unexpired, irrevocable letter of credit in an amount of not less than $100,000 per claim, with a minimum annual aggregate availability of credit of not less than $300,000.

Fla. Stat. § 464.0123(2)(a).

Practice Requirements

The new law also sets forth the practice requirements for autonomous nurse practitioners. Specifically, the new law allows for autonomous practice nurse practitioners to:

  • Engage in autonomous primary care practice, including family medicine, general pediatrics, and general internal medicine;
  • For certified nurse midwives, engage in autonomous practice for the following:
    • Perform superficial minor surgical procedures;
    • Manage the patient during labor and delivery to include amniotomy, episiotomy, and repair;
    • Order, initiate, and perform appropriate anesthetic procedures.
    • Perform postpartum examinations;
    • Order appropriate medications;
    • Provide family-planning services and well-woman care; and
    • Manage the medical care of the normal obstetrical patient and the initial care of a newborn patient.
  • Perform general functions of an advanced practice registered nurse;
  • For patients that require the services of a health care facility, they can:
    • Admit and discharge patients; and
    • Manage the care of the patient in the facility.
  • Provide a signature, certification, stamp, verification, affidavit, or endorsement that is otherwise required to be provided by a physician, with the notable exception that they cannot provide medical marijuana certifications.

Fla. Stat. § 464.0123(3)(a).

Additionally, the new law requires that certified nurse midwifes must have a written transfer agreement with a hospital and a written referral agreement with a licensed physician. Fla. Stat. § 464.0123(3)(b). Finally, the law prohibits autonomous nurse practitioners from performing any surgical procedure other than a subcutaneous procedure. Fla. Stat. § 464.0123(3)(c).

Issues with Autonomous Practice

Nurse practitioners looking to establish their own practice will now face many of the same issues that physicians face. The first issue is existing employment agreements. Many nurse practitioners were forced to sign employment agreements either with their physician practice group or hospital when they began their employment. Many of these employment agreements contain restrictive covenants, governing when and where employees can work after terminating their current job (e.g., they may prevent the nurse practitioner from working at any competitive practice within 20 miles of the current practice for three years). Additionally, these employee agreements may also contain prohibitions on soliciting patients or employees. Any nurse practitioner seeking to establish an autonomous practice needs to first understand what restrictions are contained in any current employment agreement and the validity of those restrictions.

Next, nurse practitioners should decide the type of business entity that should be formed. As licensed professionals, nurse practitioners, in addition to the normal business entity options, will have the ability to form Professional Associations or Professional Limited Liability Corporations in Florida. What business entity a nurse practitioner should choose is very fact intensive and depends on an individual’s circumstances. However, in any event, it is strongly recommended that any nurse practitioner seeking to start their own practice consult with competent legal and tax professionals to establish the business entity.

In conjunction with the above, nurse practitioners may want to form their own practice groups with multiple nurse practitioners. If this is the case, in addition to the business entity formation documents, agreements between the owners of the practice group need to be created. These agreements can be complex but are very necessary. Owners of these practice groups, much like owners of physician practice groups, need to consider numerous issues to ensure that the practice group can continue to function through changes that naturally occur over time. For example, what if an owner wants to retire? What if one wants to quit and set up a new practice group across the street? What if an owner passes away? Further, when practice groups are formed, additional licensure in the form of a health care clinic license from the Agency for Health Care Administration may be required. These and many more questions need to be addressed at the outset to minimize future uncertainty.

In addition, much like physician practice groups, nurse practitioners will need to adopt their own employee agreements, employment handbooks, and employee policies and procedures.

Finally, and probably most importantly, autonomous nurse practitioners need to be able to bill private and government insurance. This includes getting a Medicare/Medicaid provider number and reviewing insurance contracts and Medicare/Medicaid provider agreements.
Nurse practitioners seeking to start their own autonomous practice should seek out legal counsel to assist at each of these steps.

Conclusion

Courthouses are filled with lawsuits from physicians who wanted to start their own practice but failed to properly plan for issues that a competent attorney could have warned them would arise. As nurse practitioners begin to start their own practices, they will face the same issues and should take the same precautions that physician practices do to protect themselves and the future of their practice.
Smith & Associates has extensive experience representing physicians and physician practice groups. If you are a nurse practitioner seeking to take advantage of this new law and start your own autonomous practice, you should contact an attorney at Smith & Associates to discuss your rights and options.

Coronavirus Impacts on Employers and Employees: Overview of Federal, State and Local Mitigation and Assistance Programs

The Coronavirus pandemic poses unprecedented challenges for employers and employees as more stringent measures and restrictions are imposed almost daily by federal, state and local officials seeking to control the spread of the virus. The possibility of large geographic areas being ordered to “Shelter in Place” and not leave their homes is taking hold as cities and states continue to evaluate their options.

As of the date of this article, all public schools in Florida have been closed, most likely for the reminder of the school year; restaurants have been ordered to operate only at 50% of seating capacity; bars and nightclubs have been ordered to close for at least the next 30 days; Disney and Universal Studios, as well as other tourist attractions, have been closed until at least the end of the March, and likely beyond; the cruise industry has effectively shut down; and now the prospect of closing down Florida’s beaches seems to be on the horizon. Aside from the drastic government measures, the fear among the populace is palpable as many people now practicing social distancing by refusing to eat out at restaurants and limiting all but essential shopping and commercial activities. The impact on Florida’s business is already devastating on the state’s tourism and hospitality industries. As this crisis grows, business owners and employers are evaluating options and strategies to try to save their businesses. Employees are facing lay-offs with unemployment projected to reach the highest level since the Great Depression. Given the devastating consequences and economic dislocation, employers and employees alike should consider available assistance and mitigation programs available. A few possible options are:

The Florida Small Business Emergency Bridge Loan Program: The Florida Department of Economic Opportunity will administer the Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the Program. The application period for this short-term interest-free loan opened on March 17, 2020 and will continue at least through May 8, 2020. The highlights of the program are:

  • Short-term interest-free loans in an amount up to $50,000 for business owners.
  • Loans to be repaid without interest within one year.
  • Interest rates after one year go to 12%.
  • Purpose of the Program is to provide short-term liquidity to small business owners to remain open despite economic impacts of the Coronavirus pandemic.

“Families First Coronavirus Response Act” (H.R. 6201): This emergency federal legislation passed the House overwhelmingly with bipartisan support and is expected to pass the Senate today. The key features place new responsibilities on employers to assist employees who are affected when the employee or a family member is affected by Coronavirus. The Bill includes the following:

  • Applies to businesses with fewer than 500 employees.
  • Paid Family and Medical Leave for 12 weeks (the first 14 days are to be paid under sick leave provisions).
  • This leave benefit covers employees who have been working for at least 30 calendar days.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • Paid Sick Leave provisions of the Bill also require employers with fewer than 500 employees to provide full-time employees two weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19 (e.g., self-isolating, doctors’ visits, etc.).
    Part-time employees are also covered and entitled to paid sick leave for the number of hours equal to the number of hours they work, on average, over a two-week period.
  • Employers must compensate employees for any paid sick time they take at their regular rates of pay.
  • Employers will be required to post a notice informing employees of their rights to leave.
  • As currently drafted, the Bill expressly provides that it does not preempt existing state or local paid sick leave entitlements.
  • Employers will be provided with tax credits to offset their costs in meeting the new paid leave mandates.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • The Bill provides $1 billion in emergency unemployment insurance (UI) relief to the states: $500 million for costs associated with increased administration of each state’s UI program and $500 million held in reserve to assist states with a 10 percent increase in unemployment. Besides demonstrating an increase in unemployment, in order to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.

Additional Federal Legislation Under Consideration: Additional legislation will be adopted to provide relief to employees who are dislocated by the impacts of the pandemic. As of this writing, the proposal is likely to include a cash payment directly to every American worker in an amount of $1,000.00. The overall price tag of this Bill is projected to be in excess of $1 Trillion. Details of the program will be posted in subsequent updates to this article.

Conclusion:

There is absolutely no question that Coronavirus will pose new challenges for both Employers and Employees. In assessing their business strategy for meeting new obligations, and navigating the process to seek assistance, both employers and employees should consider consulting with qualified legal counsel. If you have questions about any of the issues contained herein, you should contact an attorney at Smith & Associates to discuss your rights.

Medical Marijuana and Hemp in Florida: A Hazy Landscape

In 1996 California passed the first “Compassionate Use” law in the nation legalizing marijuana use for medicinal purposes. Multiple states followed suit into the 2000s. In 2016, Florida voters overwhelmingly adopted the Florida Medical Marijuana Legalization Initiative, also known as Amendment 2, into the Florida Constitution. Since that time, Florida’s implementation of this constitutional amendment has led to numerous lawsuits, especially over the constitutionality of the caps on the number of providers and the requirement that providers be “vertically integrated.” Despite the legislative and regulatory obstacles to implementation, Florida is among the fastest growing Medical Marijuana markets in the country. This article details the history of the medical marijuana statutes and rules as they relate to licensing, the lawsuits that arose from them, and where licensing of medical marijuana providers stands now. It also explores Florida’s new statutes and rules related to legalization of the hemp industry and the growing market for CBD products. Finally, this article tries to gaze into the crystal ball to see where this is all heading.

Early History: 2014 Amendment 2 and Compassionate Use

The 2016 passage of Amendment 2 was not the first attempt to allow medical marijuana in Florida. In 2014, the first attempt to amend the constitution to allow for the use of medical marijuana was presented to the voters of Florida. The original Amendment 2 was substantially similar to the Amendment 2 that eventually passed two years later. As discussed in more detail below, with regards to the 2016 Amendment 2, the original Amendment 2 sought to allow patients with “debilitating medical conditions,” as defined by the amendment, to receive “certifications” from physicians to allow them to use and possess medical marijuana. Importantly, the original amendment set forth the first definition of Medical Marijuana Treatment Centers (“MMTC”), which was later adopted by the 2016 Amendment 2. The amendment provided that MMTCs are defined as:

“an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers and is registered by the Department.”

This broad definition in the 2016 Amendment 2 will become critical for later legal challenges. While the 2014 Amendment 2 garnered 57.6% of the vote, it did not reach the required supermajority of 60% of the vote to pass.

However, Florida lawmakers apparently sensed the shifting political wind with nearly 60% of the electorate supporting the legal use of marijuana for medicinal purposes. A conservative Republican legislature began taking steps to, in what many viewed as an effort to avoid another constitutional amendment broadly legalizing medical marijuana, allow for limited use of medical marijuana. The first of these steps was the “Compassionate Medical Cannabis Act.” This act allowed for physicians to prescribe certain “qualified patients” low-THC (less than .8% THC) marijuana. Importantly, this act set up “dispensing organizations.” These dispensing organizations were defined by statute as “an organization approved by the department to cultivate, process, and dispense low-THC cannabis” § 381.986, Fla. Stat. (2014) (emphasis added). This definition of dispensing organizations required that the organization be “vertically integrated,” meaning that a single organization needed to do all the steps – from growing to selling to consumers – of the medical marijuana process. An organization could not, for example, simply grow marijuana or just sell marijuana. It had to do everything.

Additionally, the Compassionate Medical Cannabis Act required that dispensing organizations be limited to five in the entire state and that they meet the following requirements:

  • Possesses a valid certificate of registration issued by the Department of Agriculture and Consumer Services for the cultivation of more than 400,000 plants;
  • Be operated by a nurseryman; and
  • Must have been operating as a registered nursery in Florida for at least 30 continuous years.

§ 381.986(5)(b), Fla. Stat. (2014).

Dispensing Organization Rulemaking and Legal Challenges

Pursuant to the Compassionate Medical Cannabis Act, the Department of Health (“DOH”) began drafting rules to implement the statute. In August and September of 2014, DOH published proposed rules that purported to implement the act. Importantly, these proposed rules:

  • Established a “lottery” system to determine which applicant would be selected for licensure as a dispensing organization per region;
  • Imposed a $150,000 application fee on the selected applicants; and
  • Set forth application criteria to determine which applicants were qualified to be placed in the “lottery” for a chance to be licensed.

These proposed rules were almost immediately challenged. Costa Farms, LLC, Plants of Ruskin, Inc., the Florida Medical Cannabis Association, and Tornello Landscape Corp. a/k/a 3 Boys Farm Company all filed a challenge to these proposed rules. These cases were consolidated and heard by the Florida Division of Administrative Hearings (“DOAH”).

In his Final Order, Administrative Law Judge W. David Watkins, invalidated these proposed rules. As to the lottery system, he held that it violated due process, Florida’s licensure laws, and “contravenes a basic expectation of law for reasoned agency decision-making.” Costa Farms, et al. v. DOH, DOAH Case No. 14-4296RP (DOAH 2014). As to the other challenged requirements, he found that they either violated the enabling statute or that DOH exceeded its statutory authority.

Given the failure of the first proposed rules, for its next attempt at rulemaking, DOH set up a “negotiated” rulemaking process and invited potential applicants to be a part of the new rulemaking process. Importantly, the new proposed rule 64-4.002(2) sets forth seven statutory criteria that an applicant must demonstrate to become a dispensing organization:

  • The technical and technological ability to cultivate and produce low-THC cannabis;
  • The ability to secure the premises, resources, and personnel necessary to operate as a dispensing organization;
  • The ability to maintain accountability of all raw materials, finished products, and any byproducts to prevent diversion or unlawful access to or possession of these substances;
  • An infrastructure reasonably located to dispense low-THC cannabis to registered patients statewide or regionally as determined by the department;
  • The financial ability to maintain operations for the duration of the two-year approval cycle;
  • That all owners and managers have been fingerprinted and have successfully passed a level 2 background screening pursuant to section 435.04, Florida Statutes; and
  • The employment of a medical director who is a physician licensed under chapter 458 or chapter 459, Florida Statutes, to supervise the dispensing organization’s activities.

Despite being subject to administrative challenges, these new rules were eventually upheld as valid. See Baywood Nurseries Co, Inc. v. DOH, DOAH Case No. 15-1694RP (DOAH 2015).

While the new administrative rules were upheld as valid, litigation over the implementation of the Compassionate Use Act would continue. With the new rules in place, and only limited “slots” available to fill for the coveted licenses, the unsuccessful applicants for “dispensing organization” licenses began challenging DOH’s selection of the five successful applicants. Ultimately, the unsuccessful applicants asserted their rights under the Administrative Procedures Act, and challenged the license decisions of DOH, arguing that the scoring was flawed, and the decisions to award were factually and legally incorrect.

Amendment 2 Passes

While these administrative challenges to DOH’s selection of dispensing organizations were taking place, Amendment 2 was back on the ballot in 2016 and passed by an overwhelming majority of the voters. Importantly, the amendment adopted the use of the broadly defined Medical Marijuana Treatment Centers, unlimited in number by the Constitutional Amendment, as opposed to the limit of only five “dispensing organizations.” The Constitutional Amendment further empowered DOH to create regulations regarding the licensing of MMTCs. See Art. X, § 29(b) and (d), Fla. Const. Importantly, a MMTC is defined in the Constitutional Amendment to be:

…an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their caregivers and is registered by the Department.

Art. X, § 29(b)(5), Fla. Const. (emphasis added).

Thus, a MMTC is not just a business that treats patients using medical marijuana, it is any business that is anywhere on the medical marijuana supply chain from growing, to transporting, to selling, to even providing educational materials. However, unlike dispensing organizations that were required by statute to be “vertically integrated,” Amendment 2 provided that a MMTC could perform any one of those steps in the medical marijuana process – that is, instead of providing that a MMTC was an entity that “cultivates, possesses, processes… transfers, transports, sells, distributes, dispenses, and administers marijuana,” the Constitution, as the supreme law of land, provided that a MMTC includes any entity that “cultivates, possesses, processes… transfers, transports, sells, distributes, dispenses, or administers marijuana.”

Following the passage of Amendment 2, in June of 2017, the Florida Legislature passed amendments to the original Compassionate Use Act contained in § 381.986, Florida Statutes as enabling legislation purporting to codify the new constitutional amendment. Importantly, this new legislation:

  • Converted existing low-THC and medical cannabis dispensing organization licenses into MMTC licenses;
  • Provided for an addition 10 MMTC licenses;
  • Required that an MMTC shall cultivate, process, transport, and dispense marijuana (i.e., required that MMTCs be “vertically integrated”); and
  • Required that DOH create a procedure for issuing MMTC licenses.

§ 381.986, Fla. Stat. (2017).

With regards to the 10 new MMTC licenses, the amendments to the statute limited these additional licenses only to organizations that had applied for a dispensing organization license under the original statute and were either 1) denied the license and had a pending administrative challenge or 2) within one point of the highest final ranking in the particular region. § 381.986(a), Fla. Stat. (2017). Despite the adoption of the Amendment 2 and the new amendments to statute, DOH did not immediately adopt any rules regarding the registering of new MMTCs.

Almost immediately, litigation ensued.

Florigrown, LLC v. Florida Department of Health

Florigrown, LLC is a Tampa, Florida-based medical marijuana business. On January 17, 2017, days after Amendment 2 became effective and before DOH promulgated any rules regarding the licensing of MMTCs, Florigrown applied to DOH to become a MMTC. This application was denied. After the June 2017 legislative changes, Florigrown filed suit, challenging the constitutionality of the “vertical integration” requirement (i.e., the requirement that a MMTC must provide all aspects of the supply chain from growing to dispensing) and the limitation on the number of new licenses.

On August 2, 2018, Judge Charles Dodson issued an order that found that these requirements were unconstitutional as they violated the plain language of Amendment 2. However, Judge Dodson denied Florigrown’s request for a preliminary injunction, finding that DOH’s rulemaking process was still ongoing and that he would allow more time for that process to finish.

However, two months after that order, Judge Dodson found that DOH had made “no significant changes in [its] regulations or [its] action on the application of Florigrown. In other words, the court order was ignored by [DOH].” Based on this finding, Judge Dodson granted Florigrown’s temporary injunction:

(1) immediately enjoining the Department of Health from registering or licensing any MMTC pursuant to the unconstitutional legislative scheme set forth in Section 381.986, Florida Statutes, (2) requiring the Department by 5:00 PM Friday, October 19, 2018 to commence registering MMTCs in accordance with the plain language of the Medical Marijuana Amendment, and (3) requiring the Department to register Florigrown as an MMTC by 5:00 PM Friday, October 19, 2018, unless the Department can clearly demonstrate that such registration would result in unsafe use of medical marijuana by qualifying patients.

DOH appealed this injunction. On appeal, Florida’s First District Court of Appeal agreed that the new legislation was unconstitutional and that DOH should be prohibited from enforcing those unconstitutional provisions. Specifically, the Court found that:

Section 381.986(8)(e) thus creates a vertically integrated business model which amends the constitutional definition of MMTC by requiring an entity to undertake several of the activities described in the amendment before the Department can license it. Under the statute, an entity must conform to a more restricted definition than is provided in the amendment; therefore, all MMTCs under the statute would qualify as MMTCs under the constitutional amendment, but the reverse is not true.

We thus find the statutory language directly conflicts with the constitutional amendment, and appellee has demonstrated a substantial likelihood of success in procuring a judgment declaring section 381.986(8)(e) unconstitutional.

Florida Dep’t of Health v. Florigrown, LLC, 44 Fla. L. Weekly D1744 (Fla. 1st DCA July 9, 2019), review granted, SC19-1464, 2019 WL 5208142 (Fla. Oct. 16, 2019) (emphasis added).

Further, the appeal court certified the following question as one of great public importance to the Florida Supreme Court:

Whether the plaintiffs have demonstrated a substantial likelihood of success on the merits of their claims that the statutory requirements of vertical integration and caps on the number of medical marijuana treatment center licenses as set forth in section 381.986(8), Florida Statutes, are in direct conflict with article X, section 29, of the Florida Constitution?

Florida Dep’t of Health v. Florigrown, LLC, 44 Fla. L. Weekly D2182 (Fla. 1st DCA Aug. 27, 2019).

On October 16, 2019, the Florida Supreme Court accepted jurisdiction of this case and oral argument is set for April 22, 2020.

DOH’s Issuance of MMTC Licenses

While the Florigrown lawsuit challenging the constitutionality of the MMTC statute was pending, DOH was still moving forward with issuing MMTC licenses pursuant to the revised statute and rules that Judge Dodson had found to be unconstitutional. Thus, in addition to awarding the existing dispensing organizations with MMTC licenses, numerous entities that were currently challenging their entitlement to dispensing organization licenses settled their cases with DOH in exchange for MMTC licenses.

The process of litigation and settlement was convoluted and DOH’s response to the mounting legal challenges was chaotic. DOH implemented Emergency Rules to create criteria for determining which challengers would now be eligible, per the amended statute, for MMTC licenses. The key issue was the “One Point Condition” contained in the new statute that allowed an award of an MMTC license to an organization that applied for a dispensing organization license and was “within one point of the highest final ranking in the particular region.” § 381.986(a), Fla. Stat. (2017). The legal conundrum created by the “one point rule” was made clear by Administrative Law Judge John Van Laningham who stated:

The One Point Condition operates retroactively in that it establishes a previously nonexistent basis for licensure that depends upon pre-enactment events. This is analogous to the legislative creation of a new cause of action, involving as it does the imposition of a new duty (to issue licenses) on the Department and the bestowal of a new right (to become licensed) on former applicants based on their past actions.

Nature’s Way Nursery of Miami, Inc. v. DOH, DOAH Case No. 17-5801RE (DOAH 2018).

Nature’s Way challenged these emergency rules, claiming that it was entitled to a MMTC license pursuant to statue as it was within one point of the entity awarded a dispensing organization license, but the new emergency rules would fail to award it a MMTC license.

This challenge led to an in-depth review of DOH’s prior scoring of the dispensing organization license applications. While an entire article could be written on the numerous problems with DOH’s Emergency Rule and original scoring of applicants, ALJ Van Laningham aptly described the problem as a “colossal blunder that turned the scoring process into a dumpster fire.” Id. (emphasis added). Accordingly, he invalidated the emergency rules and found that the scoring methodology used to rank dispensing organization applications was not valid either.

Following this, Nature’s Way and DOH entered into a settlement agreement wherein Nature’s Way would be issued a MMTC license. With this, other challengers appeared and, based on ALJ Van Laningham’s order, DOH quickly settled with them as well, granting eight new MMTC licenses to Spring Oaks Greenhouses, Inc., Redland Nursery, Inc., Dewar Nurseries, Inc, Tree King-Tree Farm, Inc., Perkins Nursery, Inc., Bill’s Nursery, Inc., DeLeon’s Bromeliads, Inc., and Hart’s Plant Nursery Inc., all under one joint settlement agreement.

The hard-fought battle for these MMTC licenses may well be worth the effort, as shortly after receiving MMTC licenses, many entities put them up for sale, including one that was reportedly sold for $53 million.

While the constitutional challenge is still ongoing, DOH has now issued 22 MMTC licenses. If Florigrown’s lawsuit is successful at the Florida Supreme Court, expect those numbers to increase significantly.

Hemp/CBD Statutes and Rules

In 2018, the Federal Hemp Farming Act was signed into law. This act removed hemp (which is defined a cannabis with less than 0.3% THC – compare this to the 0.8% THC content allowed under Florida’s Compassionate Use statute) from the schedule 1 controlled substances list. Further, it enabled states to enact “plans” to regulate the cultivation and sale of hemp. Hemp and CBD are contained in numerous types of products ranging from oils, vapes, pills, skin products, drinks, all the way to “gummy bear” candies.

Moreover, the statutes and rulemaking process for allowing hemp and CBD in Florida appears to be running much more smoothly. The statute and rulemaking process, from the beginning, has been a much more cooperative process, as opposed to the confrontational process that medical marijuana has been. While some disputes and issues have emerged, at this point, the hemp and CBD process has stood in stark contrast to the medical marijuana approval process.

With the passage of the Federal Hemp Farming Act, the Florida Legislature issued wide-sweeping statutes regarding hemp and hemp extracts (“CBD”). In 2019, Florida’s Governor signed into law Senate Bill 1020. This law, codified at Section 581.217, Florida Statutes, sets forth the general guidelines for hemp cultivation and the distribution and sale of hemp extracts. Importantly, these guidelines empower Florida’s Department of Agriculture to implement rules in these areas. These new rules, located at 5K-4.034, Florida Administrative Code, took effect January 1, 2020.

The biggest change is that anyone who cultivates hemp or manufactures or sells CBD for human or animal consumption must be licensed. Guidance from the Department of Agriculture states that this licensing requirement applies to everyone in the distribution and retail chain – including manufactures, middlemen, and the individual stores that sell CBD products.

Further, the statute requires that CBD may only be sold in Florida if it has a certificate of analysis prepared by an independent testing laboratory proving:

      The hemp extract is the product of a batch tested by the independent testing laboratory;
      The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent on a dry-weight basis pursuant to the testing of a random sample of the batch; and
      The batch does not contain contaminants unsafe for human consumption.

Fla. Stat. § 581.217(7)(a).

The statute also mandates labeling requirements that include:

  • A scannable barcode or quick response code linked to the certificate of analysis of the hemp extract by an independent testing laboratory;
  • The batch number;
  • The internet address of a website where batch information may be obtained;
  • The expiration date;
  • The number of milligrams of hemp extract; and
  • A statement that the product contains a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.

Fla. Stat. § 581.217(7)(a).

The Florida Department of Agriculture has already started sending out enforcement teams to inspect cultivation and retail establishments for compliance with these new laws and regulations.

While the federal government does issue hemp growing licenses, states like Florida can submit hemp production plans to the USDA and, once approved, become the sole licensing authority in that state. Florida has chosen this option. Florida has submitted plans for seed, cultivation, food safety and animal feed. Unfortunately, the cultivation plan had was not approved by the USDA. While the other plans have been approved, cultivation is still at issue.

Due to concerns raised by the USDA, on March 6, 2020, Florida published new proposed rules on hemp cultivation, located at Rule 5B-57.014, F.A.C., that Florida believes will bring its cultivation plan into compliance with USDA rules. These rules include numerous changes, including a requirement that state agents collect a representative sample at least 15 days prior to harvest for sampling to ensure that the THC content does not exceed the regulatory maximum. Assuming there are no challenges to these rules, 21 days after publication, they will be adopted and become effective 20 days after that. After these rules become effective, they will need to be approved by the USDA. Assuming this process goes smoothly, cultivation licenses should start becoming available by the middle or end of summer 2020.

Looking into the Crystal Ball

So, what does the future hold for marijuana and hemp-related industries in Florida? One sure bet is that the industry will be highly regulated. Regardless of the Florida Supreme Court’s ultimate decision in the Florigrown case, Florida’s Legislature and DOH seem intent on making the process as difficult and limited as possible. Even assuming caps on the number of licenses and the vertical integration requirements are stricken down as unconstitutional, it is unlikely that Florida lawmakers will allow a MMTC free-for-all.

While no one can predict what a Court will do, Judge Dodson and Florida’s First District Court of Appeal set forth detailed, well-reasoned positions as to why the statute was unconstitutional. It is likely the Florida Supreme Court will agree. If this happens, the Florida Legislature will need to consider a new regulatory scheme to handle the licensing of MMTCs. Whether the Legislature will allow for the issuance of a MMTC license to any entity that meets a certain set of minimum criteria (unlikely) or set up an new regime that requires DOH to determine the need for new MMTC licenses in a particular area for a particular time period and only issue the “needed” number of license (much more likely), new requirements are likely to be forthcoming.

Regardless of the new rules, one thing that has been consistent throughout this process is that incumbents and entities challenging the current regime have been given a statutory leg-up over their competitors. Any entity thinking about entering the Florida Medical Marijuana market should seriously consider attempting to get in now, even if the current system would prohibit them from getting a MMTC license. As the recent past has shown, even entities that were denied a dispensing organization license but challenged the denial were given MMTC licenses. Challenging the current MMTC licensure system may end up being a good foot in the door for whatever the Florida Legislature comes up with next.

Additionally, recreational marijuana is on Florida’s horizon. While a proposed constitutional amendment for recreational marijuana did not garner enough signatures in time to appear on the 2020 ballot, by 2022 the amendment is expected to have enough votes to appear. That is, of course, unless the Legislature listens to the will of the people and makes it legal before then. In any case, the question of recreational marijuana in Florida is a question of when – not if.

Like medical marijuana, it is expected that incumbent providers will have a regulatory leg-up on recreational marijuana licensing when it finally occurs. Entities that wait for the legal dust to settle on all these issues may end up being too late.
Meanwhile, hemp cultivation licenses are on the horizon. Entities looking to apply for these licensed can review the proposed rules and began preparing to submit applications once they become effective and approved by the USDA. Anyone looking to get in on this process, should start working on their applications now, if they haven’t already.

Conclusion

Florida’s Medical Marijuana statutes are currently up in the air. If the Florida Supreme Court upholds the unconstitutionality of the existing statutes, all new licensing statutes and regulations will be coming. Further, even non-THC hemp and CBD products are coming under increasing regulations. In addition, when recreational marijuana becomes legal in Florida, new statutes and regulations will be added for that.

If you are a business entity thinking of breaking into Florida’s massive medical marijuana market, now may be your time to act. As history has shown, Florida’s Legislature has tipped the scales in favor of incumbents and that is not likely to change. Getting in now, while medical marijuana is in its infancy, may be your only chance (though thorough consideration of its illegality under federal law should be considered as well).

If you have questions about establishing a Medical Marijuana Treatment Center in Florida, please contact an attorney at Smith & Associates for a free consultation.

Have You Been Contacted by the BSA? Don’t Wait to Contact an Attorney.

In past articles, we have discussed what to do if you have been contacted by the Business Software Alliance (“BSA”) regarding potentially unlicensed software. See Driving Your Computer without a License: Beware the Wrath of the BSA and Software Audit Demand from the BSA.

This article, however, will focus on the importance of getting an attorney involved early in the process. Recently, a potential client contacted the firm who was in the middle of negotiations with the BSA over alleged unlicensed software. By the time we were contacted, the company had already conducted an audit, without any limitations, and provided the results to the BSA. The company had subsequently received a settlement offer from the BSA and was looking for legal advice regarding the offer.

While it is smart to seek out legal representation, by this point almost all the leverage the company had to negotiate was gone. The company had given the BSA everything they had asked for and provided the BSA with evidence, evidence the company itself created, of the infringing software.

Had the company sought legal representation as soon as it received the first demand from the BSA, it would have had significantly more leverage to negotiate and would have likely not sent the BSA evidence that incriminated itself.

The BSA conducts fishing expeditions. The BSA takes some evidence of infringing software (e.g., a former employee reports a company to the BSA for having unlicensed copies of Microsoft Office) and attempts to use that information to “fish” for other potentially unlicensed software belonging to any of their member companies, which include Adobe, ANSYS, Apple, Autodesk, Bentley Systems, CA Technologies, CNC/Mastercam, DataStax, Dell, IBM, Intuit, Microsoft, Minitab, Oracle, salesforce.com, SAS, Siemens PLM, Splunk, Symantec, The MathWorks, Trend Micro, Trimble and Workday.

Essentially, the BSA will request that an audit of all software belonging to any of its member companies be conducted and a report furnished to it, despite only having information to support infringement of one product belonging to only one member company. If a company blindly follows this request, it could be turning over evidence to the BSA that the BSA will turn around and use against it for significant monetary damages (up to $150,000 per infringing work).

Involving an attorney early in the process will help ensure that any audit is limited only to the software for which the BSA has credible evidence of infringement and that any incriminating evidence is not disclosed to the BSA.

By doing this, the company can limit its exposure and keep significant leverage in negotiating any settlement. Once the cat is out of the bag, however, it is too late and the BSA will hold all the cards.

If you have received a demand letter from the BSA, you should contact an attorney at Smith & Associates to discuss your rights.

HIPAA Violations – What are Your Remedies?

Health care providers have a duty under both federal and Florida law to protect your medical information. But what happens when they don’t?

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) provides a way for people who have had their private medical records unlawfully disclosed by a covered health care provider. Complaints can be filed here: https://ocrportal.hhs.gov/ocr/smartscreen/main.jsf. Once a complaint is received, the Office of Civil Rights will review the HIPAA claim and attempt to resolve it with the provider. If the HIPAA claim is proven, the provider may even be assessed a civil money penalty.

Unfortunately, any penalties collected stay with the government – the person who was damaged by the breach does not recover anything at all. What can you do if you have been monetarily damaged by this breach?

Florida Courts have held that a patient has a right to privacy in their medical records. If a health care provider fails to adequately take steps to protect them, they have breached a duty owed to the patient and the patient can recover damages See e.g. Florida Dept. of Corr. V. Abril, 969 So. 2d 201, 206 (Fla. 2007) (“[T]his Court has consistently and rigorously enforced the rights of patients to confidentiality in their medical records. In view of these multiple sources of a duty of confidentiality and privacy,” a health care facility has a duty to maintain their confidentiality.).

Thus, if you have suffered damages due to a breach of your private medical records, you may be entitled to damages.

If you have had your private, confidential medical records disclosed by a health care provider, you should contact an attorney at Smith & Associates to discuss your rights and remedies.

Do You Manufacture or Sell CBD Products? New Rules Could Affect You.

CBD is one of the fastest growing markets in the United States and is expected to be a $20 billion dollar industry within the next few years. Despite the size and growth of this industry, until recently the manufacturing of hemp and the sale of CBD (a hemp extract) were largely unregulated in Florida.

In 2019, however, Florida’s Governor signed into law Senate Bill 1020. This law, codified at Section 581.217, Florida Statutes, sets forth the general guidelines for Hemp Cultivation and the Distribution and Sale of Hemp Extracts (“CBD”). Importantly, these guidelines empower Florida’s Department of Agriculture to implement rules in these areas. These new rules, located at 5K-4.034, Florida Administrative Code, took effect January 1, 2020.

The biggest change is that anyone who cultivates hemp or manufactures or sells CBD for human or animal consumption must be licensed. Guidance from the Department of Agriculture state that this licensing requirement applies to everyone in the distribution and retail chain – including manufactures, middlemen, and the individual stores that sell CBD products.

Further, the statute requires that CBD may only be sold in Florida if it has a certificate of analysis prepared by an independent testing laboratory proving:

  1. The hemp extract is the product of a batch tested by the independent testing laboratory;
  2. The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent on a dry-weight basis pursuant to the testing of a random sample of the batch; and
  3. The batch does not contain contaminants unsafe for human consumption.

Fla. Stat. § 581.217(7)(a).

The statute also mandates labeling requirements that include:

  1. A scannable barcode or quick response code linked to the certificate of analysis of the hemp extract by an independent testing laboratory;
  2. The batch number;
  3. The Internet address of a website where batch information may be obtained;
  4. The expiration date;
  5. The number of milligrams of hemp extract; and
  6. A statement that the product contains a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.

Fla. Stat. § 581.217(7)(a).

The Florida Department of Agriculture has already started sending out enforcement teams to inspect cultivation and retail establishments for compliance with these new laws and regulations.

While the rules related to penalties (Rule 5K-4.035, Florida Administrative Code) have not yet been adopted, it appears that, once they are, penalties for violations can range from orders prohibiting the sale of CBD to fines up to $10,000.00 (or both).

If you have been cited by the Department of Agriculture or if you are concerned as to how these new statues and rules may affect your Hemp or CBD business, you should contact an attorney at Smith & Associates to help evaluate your rights.