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State Challenged Over Move To Drop Children's Cardiac Standards

Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.
Florida Department of Health
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

Attorneys representing four children with serious heart conditions have challenged a move by the Florida Department of Health to repeal cardiac-care standards related to a program that provides specialized services to children.

The Department of Health has pursued the repeal despite strong opposition from pediatric cardiologists associated with the Children's Medical Services program. Some of those doctors have warned that lowering the program's cardiac standards could have dire consequences.

"To date, no pediatric cardiovascular professional, no hospital, and none of the team of experts in pediatric cardiology comprising the Cardiac Technical Advisory Panel (all appointed by the surgeon general of Florida) have announced support for the department's proposed repeal," said the administrative challenge, filed Thursday.

Karen Putnal an attorney with the Moyle Law Firm and one of the authors of the petition, said that while the case was brought on behalf of the four children, it has the support of doctors and hospitals that are subject to complying with the regulations.

"The pediatric cardiologists absolutely support the case," Putnal said. "The regulated parties themselves support the regulations. It's compelling."

But the Department of Health contends that it has no choice about the repeal because the Florida law on which the current standards are based was abolished in 2001.

"The department supports high standards for patient care, especially for Florida's children," spokeswoman Tiffany Cowie wrote in an email. "It is clear the Department of Health does not have the statutory authority to regulate the operations of pediatric cardiac facilities. The department remains committed to working with all parties involved to ensure hospitals providing pediatric cardiac care strive to provide high quality care to Florida's children."

Similarly, Jennifer Tschetter, the department's chief operating officer, has maintained that the department is simply following the Legislature's intent.

The case challenges a proposed rule that includes the repeal. In part, the petition says the department has failed to properly cite authority in state law for the repeal, alleging an" invalid exercise of delegated legislative authority." Filed in the state Division of Administrative Hearings, the case is expected to be heard by Judge John Van Laningham, according to documents on the division's website.

"The Children's Medical Services Act was adopted in 1987 for the purpose of ensuring access to high quality medical services for children with chronic illness or disabilities, regardless of the child's financial circumstances," part of the petition said. "As an integral part of the program, the Children's Medical Services Act authorizes and requires the department to establish criteria and standards for the approval of CMS health care service providers, including pediatric cardiac services providers participating in the CMS program."

The standards include criteria such as the minimum numbers of physicians and procedures by hospitals that perform pediatric cardiology surgery.

Hospitals can choose to meet the Children's Medical Services standards of care --- but they haven't been required by law to do so since 2001. Eight of the 10 pediatric cardiac facilities in Florida are approved Children's Medical Services providers, while the other two are relatively new and working toward reaching those standards.

A hearing on the rule challenge will likely be held within 30 to 45 days, Putnal said.

Meanwhile, the state Senate Health Policy Committee last week approved a bill (SB 378) that would create a council to advise the Department of Health about the "delivery of cardiac services to children."

The measure, sponsored by committee Chairman Aaron Bean, R-Fernandina Beach, would require the newly created council to advise the state surgeon general on performance measures for whether facilities may be designated as a "Pediatric and Congenital Cardiovascular Center of Excellence." The council would include representatives from the eight pediatric cardiology centers affiliated with Children's Medical Services, along with two at-large physicians and a community physician not affiliated with those facilities.