2018 Florida Legislative Proposal on Limiting Opioids

The Florida Legislature will at least debate drug abuse, overdose and addiction in 2018, the "Opioid Crisis." The news broke last week with the filing of House Bill 21 (HB 21). 

Anyone that has ever browsed this blog will know that I have been banging the Opioid gong for a while. We have seen some big gains this year in the war on drug abuse, dependency, and overdose. Last May, Governor Scott declared a public health emergency. The Center for Disease Control (CDC) published Opioid Guidelines. In August, President Trump declared the Opioid crisis a "national emergency." That coincided with the inaugural Hot Seat, and our awareness that we currently have 29 such national emergencies, dating back to President Carter (1977-1981). 

The scope of risk has been studied. There was a report last spring that concluded that "prescribing patterns for Opioids have long been thought to be linked to increased risks of continued use and addiction." Those risks "rise sharply in the first few days of use." Patients who use Opioids for three days have an increased risk of still using those drugs both one year later and three years later. And, the risk increases more after five days of use, see Addiction Risks Rise after Day Three of an Opioid Prescription. See also Opioid Dependence Can Start Within Just a Few Days.

Industry has begun to respond to these studies. In September, AOL and others reported that CVS Pharmacy would limit Opioid prescription dispensing for "certain conditions" to "a seven-day supply." CVS is reportedly the first national chain to impose limits. These limits will reportedly "apply to patients who are new to pain therapy."

Back in 2013, I noted that Dying to me don't sound like all that much fun. Then I chronicled the conclusion that there was "misuse and abuse" of medications. National attention was being drawn to Opioids, and Americans were dying. A persuasive point was the CDC statistics showing that overdose death was more prevalent than automobile accident death. The information was out there, but the market was slow to get it. We know Opioids are a problem. 

In 2015, I continued to highlight that drugs were killing Americans. In What can you do in 11.2 Minutes, I tried to illustrate the rate at which Americans were passing from drugs. We keep talking about it, until perhaps I sounded last spring Like a Broken (Drug Death) Record. They are killing people, depriving children of parents, depriving parents of children, and the fact is they are affecting us all. In 2016, more Americans died of drug overdose in one year than died in the entire span of the Vietnam conflict, see Hot Seat. 

There have been efforts. Florida has a robust Prescription Drug Monitoring Program, as do other states, see E-FORCSE and KASPER Cousins with a Cause. Florida started this effort in 2009. Florida requires physicians to report the prescribing of drugs, but has no requirement that they check this database before prescribing. In 2015, I questioned If it's Worth Having, Is it worth Checking? Other states have required physicians to check first. A year ago, I noted California joining this trend in If not, What is the Point? Early this year, I noted Maine Makes Opioid Changes, and last spring, I noted the success of Ohio in PDMP and Opioids in Ohio. Checking the data, it seems, works. 

Success was being made. And now, Florida seems poised to build on the success of restricting Opioid dispensing, and the closure of all those "pill mill" doctor offices/clinics (thank you Attorney General Pam Bondi). There will be debate and discussion in 2018. The impetus of that discussion lies with the Governor, the President, and now Representative Jim Boyd of Sarasota, the sponsor of HB 21. Reportedly, Senator Lizbeth Benacquisto will file a Senate bill to parallel Representative Boyd's bill in the Senate. 

There will be discussion. It is too early to say that there will be success or progress. But there will be discussion. Certainly, there may be good reasons for not checking the Florida PDMP before prescribing these drugs; there may be good reason for sending patients home with a thirty-day supply of these potentially addicting drugs; there may be good reason to not require physicians to be regularly educated about Opioids, standards, and addiction risk. I look forward to the discussion; I am ready to hear the reasons. 

What would HB 21 do?

HB 21 would require physicians to receive two hours of Opioid education every two years. They could enjoy this training in a "distance learning format," from the comfort of their own home or office. (Lines 108 - 115). Perhaps lawyers and judges could benefit from the same education. Perhaps everyone could. 

HB 21 defines "acute pain" and differentiates it from "chronic pain" and carefully avoids the troubling, but ever present "malignant pain." (Lines 155-160). The issue of malignant pain is a distraction  in this Opioid discussion and is best avoided. If someone is suffering from cancer or other life-ending condition, then there should be no limits on their access to pain medications. Malignant pain is not part of this discussion and not part of this bill. 

HB 21 requires Florida to 

adopt rules establishing guidelines for prescribing controlled substances for acute pain, including evaluation of the patient, creation of a treatment plan, obtaining informed consent and agreement for treatment, periodic review of the treatment plan, consultation, medical record review, and compliance with controlled substance laws and regulations. (Lines 300-306)

HB 21 limits most Opioid prescriptions to a "3-day supply." There is an exception that allows physicians to exceed this, and allows up to a "7-day supply." But that exception requires the physician to document the condition and the "lack of alternative treatment options that justify deviation." In other words, prescribe 7 days worth of medication if you need to, but explain why you need to. (Lines 309-325).

HB 21 requires pharmacists to verify the identity of patients receiving such prescriptions. Those patients must present photo identification issued by "a state or the Federal Government," or the pharmacist must "verify the validity of the prescription and the identity of the patient with the prescriber. (Lines 601-605; 627-630).

HB 21 substantially rewords Section 893.055, Fla. Stat. regarding the Florida PDMP (E-FORCSE). (Line 1044). And, the law would place a new requirement on the physician 

A prescriber or dispenser or a designee of a prescriber or dispenser must consult the system to review a patient's controlled substance dispensing history before prescribing or dispensing a controlled substance.

If the PDMP is not available ("not operational"), then the prescriber would have to document the reason for not checking the PDMP and "shall not prescribe or dispense greater than a 3-day supply of a controlled substance to the patient." So, with the PDMP not operational, the "7-day" option is not available. Failure to "consult the system" would result in the issuance of a "nondisciplinary citation to any prescriber or physician who fails to consult." (Lines 1255-1273).

HB 21 requires annual reporting to Florida's elected leaders regarding the success of education programs, progress in decreasing medication obtained by fraud, improved patient care, reduced "drug diversion," and "increased coordination among partners participating in the" PDMP.

HB 21 is 114 pages long. It addresses a great many details and would make many changes. The foregoing is but a summary of a few. In this time of Opioid crisis, there are a few things that seem clear to those who have been following, chronicling and discussing Opioids:

1. Pain is real

2. Pain is a complex, multifaceted issue

3. People are dying and being damaged by Opioid use

4. Those Opioids are both prescription and "street" drugs

5. Prescription drugs have in some instances been seen as a "gateway" to street drug use

6. Addiction is real

7. Addiction is likewise a complex, multifaceted issue

There is no physician that wants to see a patient in pain, and no patient wants pain. But, medicine has to strive to approach pain relief in a responsible manner. There is evidence supporting that Opioids can be a danger to patients. There is ample evidence that PDMP programs have been effective in decreasing inappropriate distribution of these drugs. What HB 21 will not do is magically and instantly correct all risks and issues with Opioids. That panacea either does not exist, or has not been discovered. But, the fact that all issues cannot be completely solved does not excuse failure to try. 

There will likely be critics of these proposed legislative efforts. There will be those who will raise addiction as the primary issue, and they may ask why more is not done for those already in the grip of addiction. Certainly, there are many in that situation and in need of intervention or assistance. They are the victims perhaps of prior prescriptions and Opioid availability. But, if this legislative effort can prevent or even delay new patients from dependence on Opioids, then it is an admirable start. Drugs are killing people. Preventing dependence is important. And, that does not mean there is not a need for further efforts assisting those already dependent. 

Finally, medicine must address pain. The history of Opioid medication is troubling. The death toll is staggering, with predictions that the next decade could bring 500,000 Opioid deaths. But that does not change the fact that people experience pain. Following injury or surgery, people need to understand that pain and they will naturally look to medicine to assist them. Medicine needs to respond with treatment and care that addresses that pain in a manner that does not lead to addiction, dependency, and death. It may be that there is, in a given situation, a "lack of alternative treatment options" (Lines 309-325), but that does not mean medicine cannot seek them.

I wish this were a simple problem with some simple solution. It is not. Pain is real, Opioids have been our collective solution, and pain drugs can damage and kill people. That is an inherent conflict that confounds us. There has to be a way to solve that dilemma. And, frankly, the time has come for that national discussion. How do we deal with pain without merely substituting a different problem like debilitation, addiction or death?

Judicial Commenting

It is a recurrent theme, Judges and social media. A recent post suggested the Nancy Reagan approach ("just say no") for judges. While there certainly are some safe topics for judges to discuss, there are also some that might best be left alone. And, perhaps it is not "where" the statements appear (social media), but that they appear anywhere, or were made at all?

Last November, the San Antonio Police posted regarding the arrest of a suspect in the killing of a police officer. Seeing that announcement and photo of the suspect, County Judge James Oakley "posted to the SAPD Facebook page the comment, “Time for a tree and a rope . . ..” The comment also appeared, through the functions of Facebook apparently, on the Judge's "own Facebook page."  An important lesson about social media is that information can spread and propagate. A posting in one place can quickly appear in others. 

Once the image of that post began to appear in the media, the Judge removed the post "and issued a public apology." Eighteen complaints were filed against the judge with the Commission, in part perhaps due to the publication of the image in various media. There were multiple issues expressed, including "vigilante justice," "apparent disregard for due process," and "racial insensitivity." 

The Judge defended his (by then) deleted comment, asserting that he intended no racial or gender reference, and merely reflected "personal feelings that this senseless murder of a police officer should qualify for the death penalty." He also said that the reference to a rope was derived from a "humorous advertising campaign for Pace Picante Sauce from the 1980s." Frankly, I had forgotten that old ad until reading this story. 

The Commission cited Canon 4A(1) of the Texas Code of Judicial Conduct:

a judge “shall conduct all of the judge’s extracurricular activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.” 

It concluded that the Facebook posting "cast reasonable doubt on (Judge Oakley's) capacity to act impartially in the performance of his duties, in violation of Canon 4A(1)." It also found fault based upon a provision in the state constitution that forbids conduct that “casts public discredit upon the judiciary or administration of justice.”

The Commission concluded that a public reprimand was justified for Judge Oakley, and that he should attend the "30-hour educational training program for new judges." The Commission noted that Judge Oakley had not previously undertaken that training, despite his tenure. It appears that he had been on the bench for about two years at the time of his Facebook posting, according to Wikipedia (a seemingly respected source of information relied upon by courts, see The Internet, Evidence, and Defamation).

In addition, the Commission ordered Judge Oakley to have "four (4) hours of instruction in the area of racial sensitivity with a mentor." The opinions does not specify, but presumably that would be mentoring by another Texas judge. 

This is not the first time that a judge has experienced scrutiny over the use of Facebook. An interesting instance was discussed in Will you be my Friend. More recently, Judges and Facebook have been examined again, and the Florida Third District Court (in Herrsein v. USAA, Case no. 3D17-1421, August 23, 2017) has seemingly softened earlier prohibitions on judicial face-booking, as discussed recently in Social Media and Judges. The implication of that decision may be a wider Florida judicial participation in social media generally, and Facebook specifically. 

It should be remembered, however, that the Herrsein decision is specific to the decision the court was called upon to make. That is, whether the relationship of "friend" in the colloquialism of social media is meaningful in determination of disqualification or recusal under the Code of Judicial Conduct. Herrsein may be seen by some as not addressing whether a judge may (or should) engage on Facebook, or have "friends" on Facebook, but only addressing specifically whether a judge should or must be disqualified based upon such connections.

With the previous admonitions regarding Facebook participation, published in 2010 by the Florida Judicial Ethics Advisory Committee (JEAC), a great many Florida judges have simply avoided social media generally, and Facebook specifically. The Florida JEAC conclusions are not shared universally in other states, and thus Facebook participation by judges varies state to state. With the seeming relaxation on Florida judge's social media participation, lessons from other states may be of increasing interest.   

Some contend that Judge Oakley's comments and reprimand are not a social media issue however. They remind us that it is the nature of his comment, and not the platform that are noteworthy. Consider that many online publishers offer readers an opportunity to comment on news stories. Such a comment could as easily be spread and publicized. We can likely agree that the judge's comments have been no less troublesome if posted in response to the arrest announcement on a local news site?

There is sound logic in concluding that the comment venue (social media versus news site) is less relevant than the comment content. That said, it is possibly harder to identify the comment-maker on a news site, while social media is clearly tied to the person making the statement. A recent case in New York illustrates the challenges of discovering the identity of those who post comments or reviews online. 

There are therefore multiple issues for consideration. Perhaps the critical issue however, is the content of communications. Judges should focus on remaining impartial, and avoiding statements demonstrating bias, or partiality. Following the language of the Code, avoiding comments that could "cast reasonable doubt on the judge’s capacity to act impartially." Perhaps the focus on this content, aside from any distracting analysis of platform or social media, can help us focus on the meaning of the words, and their potential for damage and discredit?

The Sleuthing Judge

In Florida, Judges are governed by the Code of Judicial Conduct. This specifically applies to the Florida Judges of Compensation Claims, not because we are part of the judicial branch (we are not), but because the very statute that establishes this agency says so.  See Section 440.442, Fla. Stat. 

The Code is a broad set of prohibitions on activity, and inspirational ideals for judges. The underlying principle of the Code is that

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law.

In addition to defining what activities are permissible, debatable, and inappropriate, the Code provides guidance on the issue of disqualification. That is, when a judge should not preside over a case. In Florida, this is in Canon 3E:

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.

There are then various examples of specific instances in which disqualification is appropriate. These are examples, the Code is clear that disqualification is appropriate in those instances, but is "not limited to" those listed instances. 

Recently, the Tennessee Supreme Court interpreted a similar provision from the Tennessee Code of Judicial Conduct in Holsclaw v. Ivy Nursing Home Inc., No E2016-02178-SC-T10B-CV.

There, a party requested the trial judge to "recuse" from the case. The defendant filed a "motion for recusal of the trial court judge," which was denied. As an aside, anytime a party in Florida workers' compensation seeks relief, a motion is the appropriate vehicle. See Rule 60Q6.115(1), F.A.C. Periodically, an attorney will ask the "what do I do next" question regarding some conflict. It is surprising that so often they do not realize the "next step" most often to seek relief from the trial judge and the vehicle for that is a "motion."

The FLJCC is not a court, see In Re Rules of Workers' Compensation Procedure, 891 So.2d 474 (2004). Therefore, the Judges are not governed by the Rules of Judicial Administration generally. One exception is the disqualification topic, upon which the Rules of Procedure for Workers' Compensation Adjudications have specifically incorporated Fla. R. Jud. Admin. 2.330. See Rule 60Q6.126(1). That rule sets forth procedure for seeking disqualification of a trial judge. Thus, the Code provides for the "when" and "why" of disqualification, and the Rules of Judicial Administration provide the "how."

In Holsclaw, the trial judge denied disqualification. The Tennessee Court of Appeals reversed that decision and ordered the trial judge removed from the case. The Tennessee Supreme Court granted review, and reversed the appellate court, reinstating the trial judge's authority to hear the case. One Justice of the Supreme Court dissented from that decision. It is worthy to note, therefore, that multiple appellate jurists concluded that disqualification was appropriate in this case. Two appellate court judges and one Supreme Court justice concluded that would be the better course.

The plaintiff in Holsclaw alleged the defendant fired her in retaliation. The Supreme Court noted that two trial judges "recused or removed themselves," before the case was assigned to Judge Stanley. This language is somewhat important. Judges "recuse" themselves, and can be "disqualified" by others. When a party seeks to remove a judge from a case, the appropriate motion is a "motion for disqualification," not a "motion for recusal." A technical point to be sure, but worthy of understanding nonetheless. 

Eventually there was a motion filed for plaintiff to be evaluated by a rehabilitation counselor. If the plaintiff had agreed to this request, it would likely have proceeded without a motion. Motions are tools that indicate a dispute exists which requires the intervention of the judge. Usually, when a motion has been filed, one can presume there is a disagreement. 

The plaintiff's opposition was essentially that other evaluations had already been conducted, and that the requested examination would essentially be irrelevant in light of a prior concession that she suffered "a vocational disability." Of note, at least some of the previous evaluations were in a workers' compensation case that was also ongoing between the plaintiff and defendant. That is also not uncommon, for an employee to have both workers' compensation litigation and civil litigation ongoing at the same time. And, the facts and issues sometimes become intertwined. 

Judge Stanley told the parties she was inclined to grant the motion for evaluation. She noted her experience was primarily with "vocational disability experts," and expressed a lack of familiarity with "rehab counselors." She questioned the parties: "Are these dudes even qualified to testify as experts?" And in furtherance of that curiosity, she "called the director of the department at the University of Tennessee" and that professor 

kind of filled me in on what the program, the certification is, what these guys do and don’t do, you know, enough for me to at least conclude that this is the type of certification for a person that I might let testify as an expert.

Specifically not ruling on whether the rehab counselor could be an expert witness, the judge indicated she would order the evaluation. Of note, neither party made any objection after the judge described this phone call to the university. 

Thereafter, the defendant moved to disqualify Judge Stanley, alleging that the trial court “did not constrain itself to consideration of the facts presented by the parties,” “conducted an independent investigation,” and “acquired knowledge from an extra-judicial source.” From this, the defendant argued that the "the trial judge had personal knowledge of disputed evidentiary facts concerning the proceeding.” The judge denied the disqualification motion. 

The Tennessee Appellate Court concluded "the trial judge engaged in an independent investigation that allowed the judge to gain personal knowledge of disputed facts." It concluded that this investigation gave “an appearance of impropriety" and warranted disqualification. A concurring judge stressed that the record did not support "that the trial judge is biased or prejudiced," but that the judges "inquiry" call "could reasonably create the appearance of impropriety.” Notably, one Court of Appeals judge dissented, and would have held the denial of disqualification was appropriate. 

The Tennessee Supreme Court noted from the Code that 

[a] judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,

Notably, this the same standard is in the Florida Code. This, according to the Supreme Court would require recusal or disqualification 

in any proceeding in which “a person of ordinary prudence in the judge’s position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge’s impartiality.

The Supreme Court stressed that this "objective" test is used "because the appearance of bias is just as injurious to the integrity of the courts as actual bias.” 

The Court focused on the "personal knowledge" allegation in support of disqualification, noting that the Court had not previously defined the meaning of "personal knowledge." It elected to adopt a definition enunciated by the Minnesota Supreme Court that “personal knowledge” is 

'knowledge that arises out of a judge’s private, individual connection to particular facts' and not including information that a judge learns 'in the course of her general judicial capacity or as a result of her day-to-day life as a citizen'

Accepting the Minnesota definition, and finding this prohibition a "narrow" one, the Court noted the test is whether “a person of ordinary prudence would have a reasonable basis for questioning [her] impartiality.” Applying that test, the Court concluded that Judge Stanley had no personal connection to the case, and that the "merits of the case (were not) affected at all by the judge’s conduct." It therefore concluded that the trial judge need not be disqualified. 

The Court also considered whether the trial judge's call was "improper ex parte communication or independent investigation" under a second Canon. As the Florida Code does, the Tennessee Code precludes a judge from initiating, permitting, or considering ex parte communications. That is communications "to the judge," but "outside the presence of the parties or their lawyers, concerning a pending or impending matter.” This Canon also says a judge shall "refrain from conducting an independent investigation into the facts of a matter."

The Court concluded that the call to the University was an ex parte communication on a "pending matter." It examined the Code's "exceptions to the prohibition against ex parte communication" and found none apply. The Court also held "that this communication between the trial judge and Dr. Mulkey qualifies as an independent investigation." However, the Court concluded that its conclusion of both ex parte communication and independent investigation did "not end our inquiry."

Essentially, the Court held that beyond a finding of violating the Canons, the Court "must determine whether the trial judge’s impartiality might reasonably be questioned" by “a person of ordinary prudence." The Court noted that 

At all times in the proceedings, the trial judge was open, honest, and forthright about her communication with Dr. Mulkey. At no point did the trial judge discuss the Defendant’s expert specifically with Dr. Mulkey. She did not investigate the Defendant’s proposed expert. She merely ascertained what the CRC program at the University of Tennessee entailed so that she could understand what type of certification

The Court concluded that the judge improperly communicated, ex parte, and improperly investigated, but since she was open and straightforward about that, and limited her investigation, then no "person of ordinary prudence" would "reasonably question" her impartiality. 

Justice Page dissented. He "perceive(d) an appearance of impropriety." Justice Page stressed that “the preservation of the public’s confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." And, thus, it appears that Justice Page questions the trial judge's impartiality. 

Either the majority concluded that Justice Page's perception was not "reasonable" or that he is not of "ordinary prudence" in reaching their conclusion that recusal or disqualification was not required. Seemingly, the majority's conclusions might reach similar conclusions regarding the two appellate court judges who concluded that disqualification was appropriate. 

Holsclaw provides some important lessons on disqualification. Primary among them is that interpretation of the Code is based in part on perceptions. This motion was considered by multiple appellate judges and there was not unanimous consensus. Second, despite violating the Code with both improper ex parte communications and investigation, the Tennessee Supreme Court does not view disqualification as required. In fact, the Court seemingly concludes that violating the Code is not necessarily inappropriate. 

Finally, the time required for a case to thus proceed through the appellate process is apparent. When I speak publicly, I am often asked why the legal system takes so long with decisions. Motions are made in trial proceedings, and decisions are made. Appeal on an issue such as this can occur before trial even occurs, and can take months for an appellate court to decide. If a higher court, as here, intervenes, that can mean months more. And, the end result of Holsclaw is that the case now returns to the trial judge for further proceedings. The trial now picks up where it left off for consideration of the disqualification motion by the judge, the appellate court, and the Supreme Court. 

It is therefore likely in the best interests of all parties that trial judges not engage in ex parte communication and not perform independent investigations regarding a case. Although the Tennessee Supreme Court concluded that both were excusable in Holsclaw, an appellate court in another state might not agree. And, it is possible that in some future case a trial judge's supreme court might not even grant review of such a decision. It is probably better advice that judges follow the Code as it is written, and thus avoid the appearance of impropriety, the motion for disqualification, and the delays of appellate review.

Fraud on Everyone

A reader recently emailed me a link to a news story about fraud. It came without explanation or context, just a link. Perhaps it was inspired by an August Post on "Real" Fraud. But, that story was on my mind when a second fraud story hit the daily headlines. 

The first story from USA Today is Payroll Services Firm Owner Defrauded Small Businesses of $15.8M. Andrea Rudd of Powell, Tennessee plead guilty to tax evasion and both wire and mail fraud. She "took money from small businesses to cover payroll taxes and workers’ compensation insurance that she instead pocketed." The damage to the small business owners is obvious. Their taxes were not paid and they did not have the workers' compensation coverage that they believed they did. 

What may be less obvious to the casual observer is the impact on people who did not personally do business with Ms. Rudd. The people that worked for those defrauded businesses were likely not covered by workers' compensation. For working Americans, workers' compensation is a safety net. Some are critical of the volume of benefits provided, the procedural requirements, and more. But, workers' compensation is there for a huge population of American workers. When insurance premiums are not paid, however, coverage is likely not provided. Ms. Rudd seemingly defrauded more than the small businesses. 

If one of those "small business'" employees had been hurt on the job, they would likely have required medical care. That care would be provided, despite the potential that no one would pay for it monetarily. As I have written, when someone is hurt, the truth is that Someone has to Pay. But that may mean an employer, workers' compensation or health insurance paying monetarily for the treatment, or an employee going without care and paying with lost productivity, lost function, and pain.

Ms. Rudd "was sentenced to serve eight years in federal prison and ordered to pay more than $15 million in restitution."

More recently, Erin and Lean Finan, plead guilty to "mail fraud and money laundering" in a case involving Amazon, reported by Fox News. This suburban couple created false identities, ordered electronics, complained about their quality and received "replacements at no charge." They then sold the replacements to a middleman, who in turn sold them at a mark up to a "New York outfit." Presumably that outfit then resold the goods. 

The Finans "were ordered to repay Amazon $1.2 million, and they face up to 20 years in prison." They have not been sentenced yet, but may well go to jail. 

Just as Ms. Rudd's crimes are actually against more than the "small businesses," the Finan's crimes are against more than Amazon. One of the prosecutors noted that "Consumer fraud is absorbed by all of us through higher retail prices." That makes sense. When people steal someone's identity and open credit accounts, their gains are someone else's loss. Those losses are not absorbed, but are passed on to the rest of us as higher costs. For that reason, identity theft is a crime that most states (not Kansas) prosecute. 

Both the Finans and Ms. Rudd will be ordered to pay restitution. Restitution is a criminal law concept that reclaims monetary damages. Of course, Amazon could have sued the Finans, just as those "small businesses" could have sued Ms. Rudd. But, the criminal justice system provides restitution as a mechanism for recouping such damages in the course of a criminal prosecution. The criminal court orders the repayment of damages. And, both of these cases illustrate that those damages can be extensive. 

The headlines catch restitution stories. A suburban couple ordered to pay $1.2 million, or a local business owner ordered to pay $15 million grab attention. And, that is what headlines are all about, grabbing attention. But, after these restitution orders, and their headlines, do the wrongdoers really have a likelihood of paying those millions of dollars. 

USA Today quotes the U.S. Census Bureau saying that the average U.S. household income in 2014 was $73,298 or $65,751. USA Today does not explain which of these two quoted figures is accurate, or why two numbers are quoted. According to The Indianapolis Star, you would need $46,016 "to have enough money for needs and wants" there. It cautions, however, that the "median income for the city is $42,076." So, the Finans would presumably need $46,016 and yet perhaps they could earn the average, $65,671, leaving a surplus of $19,735. 

And, if they paid all of that surplus toward the $1.2 million in Amazon restitution, the entire debt would be paid in just under 61 years (without any interest of course). When the debt is thus paid, Erin (38) and Leah(37) will be 99 and 98 years old respectively. If Ms. Rudd paid at that $19,735 rate annually, her $15 million in restitution could be paid in only 760 years. By which time, of course, Ms. Rudd (38) will have been dead for several centuries. And, these projections conjecture that these felons will begin making these restitution payments immediately, while they serve prison sentences (to which Ms. Rudd has been sentenced already, and to which the Finans may be). 

These hypothesis are also based on the criminals being able to earn average incomes, and devoting significant portions toward paying restitution. Some would question if either of these are realistic. According to the Center for Economic Policy Research, "An extensive body of research has established that a felony conviction or time in prison makes individuals significantly less employable." And, human nature may suggest that the odds of a felon making such payments over the course of decades is unlikely. 

So, while the restitution figures and facts are good for headlines, are these restitution orders effective? Some will no doubt suggest that they empower the seizure and sale of a person's existing assets. Perhaps the sale of a home, cars, etc. will bring significant funds to contribute to the restitution total, and decrease the balance. But that is not necessarily the case. Assets sometimes do not bring expected value. And, sometimes defendants later ask the courts to reduce restitution, as reportedly a defendant recently did in North Carolina, after the asset sale brought less than expected. 

In the end, the only real recovery may in fact be what is owned by the defendant(s), and what that property can be sold for in its depreciated condition. And, the rest of the loss may just have to be made up for by the rest of us in higher prices for products and services? Maybe when we say Someone has to Pay, that essentially means us.

Attorneys Fees in Florida Increased in 2016-17

On April 20, 2016, the Florida First District Court of Appeal rendered a decision in Miles v. City of Edgewater Police Dept.,190 So.3d 171 (Fla. 1st DCA 2016). Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016). Each found elements of the Florida workers' compensation statute regarding claimant attorney fees unconstitutional.

Each year, the Florida Office of Judges of Compensation Claims issues an annual report, pursuant to statutory mandate, Section 440.45. That report is in the drafting stages this month, and figures remain subject to audit and revision. However, the statistics indicate that litigation volume increased in 2016-17, as did claimant attorney fees. 

Claimant attorney fees in Florida can be paid by the injured worker (on settlements and ex parte stipulated fees) or by the employer/carrier (ordered or stipulated), pursuant to Section 440.34(1) or (7). There are three general fee order types: settlement, stipulated, awarded.

Litigation volumes are measured in Florida with two metrics, the overall petition for benefits filing rate and the "new case" filing rate. A "new case" may be created by filing a petition on case for the first time. A "new case" can also be created with a Request for Assignment of Case Number or "RACN," in cases that do not, at that time, require a petition. This might be to facilitate the filing of a motion regarding discovery, or the filing of a settlement, or a variety of other reasons. In either instance, any volume of "subsequent petitions" could be filed in any case. Therefore, petition volume includes litigation on cases filed in previous years, and instances of multiple petitions filed in a single case; petition volume will always be higher than new case volume. 

In 2015-16, the Petition filing volume increased 12.1%, a significant change. That trend, increase, continued in 2016-17, but at a somewhat slower rate of 5%. The total petition filing in 2016-17 was 70,363. Of note, the increasing filing rates are beginning to affect availability and convenience of state mediation in Florida. The recent landfall of Hurricane Irma and the extended office closures and appointment cancellations associated with it will exacerbate that affect in the near term, potentially affecting availability throughout most of 2017-18. 

New Case volume has historically changed similarly to changes in petition filing. However, the New Case rates of change have tended to demonstrate less elasticity, to have generally changed more subtly. That is evidenced in 2016-17 with New Cases increasing, but very slightly to 31,304. The increase is .4%. 

In 2016-17, the number of cases in which settlement attorney fees were approved decreased slightly (1%), and the total dollar value of those settlements also decreased slightly, about $3 million. The attorney fees paid by injured workers regarding those settlements increased by about $4.5 million. Attorney fees on settlements may be impacted by the District Court's analysis in Miles. 

Attorneys fees outside of the "settlement" setting, litigation attorney fees, can be either "statutory" or hourly. The availability of hourly fees expanded in scope and depth following the Court's decision in Castellanos.  Litigation claimant attorney fees increased about $44 million in 2016-17. 

At a recent seminar, I was asked if some portion of that may be non-recurring. That seems probable. The Castellanos opinion decided an additional volume of pending appellate challenges (called the "companion cases"). Therefore, some volume of cases had fee issues resolved after Castellanos, and had been in the system awaiting decision or stipulation. It is therefore a corollary that the fee amounts reported in 2015-16 (and perhaps before) were suppressed by the withholding of fee agreements pending the Court's decision. 

That is, there was certainly a volume of fees not awarded or paid in 2015-16 as those cases were being challenged ("companion cases"). And, it is likely that some attorneys who were entitled to fees based on litigation undertaken were not seeking determination of fee amounts in 2015-16 (and perhaps before), in anticipation of the Court changing the paradigm. That withholding would have constrained 2015-16 fees approved, and the following resolution of those fees would have increased 2016-17 fees approves. 

In 2016-17 the volume of "statutory fees," those calculated with the formula set forth in Section 440.34(1) decreased about $5 million ($5,028,656, or by about 31%. Hourly attorney fees increased by about $49 million ($49,487,622, or about 191%. The aggregate of decreasing statutory fees and increasing hourly fees results in the overall increase of about $44 million, above. An immediate question I hear is "how were there any hourly fees prior to Castellanos. 

It is noteworthy that there was a limited exception in place throughout this history. Since 2003 there was a limited opportunity for hourly attorney fees. Section 440.34(7). This allowed an hourly fee one time during any case. But, the fee was limited to a maximum of ten hours, at a maximum rate of $150 per hour, and was available solely for claims that involved only medical issues. 

But, there were other hourly fees since 2003 as well. In 2003, the Legislature eliminated hourly fees. However, thereafter hourly fees were nonetheless awarded (trial) and approved (stipulation) regarding litigation on cases with a date of accident before that July 1, 2003 statute change. For several years, there were both statutory fees (post 2003 cases) and hourly fees (pre 2003 cases). In 2008, the Florida Supreme Court insinuated "reasonable" into the statute, and concluded the 2003 statute allowed hourly fees. This was referred to as the Murray decision. Thereafter, hourly fees were available on all workers' compensation cases, with no relevance afforded the July 1, 2003 date.

In 2009, the Legislature amended Section 440.34 and eliminated hourly attorney fees. As with most statutory enactments, that change did not affect cases prior to the amendment. Therefore, a new distinction was drawn between cases with accident dates prior to July 1, 2009 and those with accident dates after. Cases with accident dates before July 1, 2009 could include hourly attorney fees following Murray, while those after could not. Following that change, various challenges were litigated, culminating in the Castellanos decision that again insinuated "reasonable" and hourly attorney fees into Florida workers' compensation. Thus, since April 2016 hourly fees have been appropriate in all cases, without the constraints in 440.34(7), regardless of the date of accident. 

With the change to a broader hourly fee paradigm (440.34(1)) in 2016, the hourly rate has also demonstrated upward change. In 2015-16, the overall effective hourly rate was about $185.87. In 2016-17, the overall effective hourly rate was $259.05. Those figures were calculated by dividing the overall total of reported hourly attorney fees each year by the overall total of reported attorney hours. This is an "average" calculation, which ignores the methodologies of "median" or "mode" upon which some place certain statistical importance. 

What is known and what is not bears reiterating. What is known is that claimant attorney fees in Florida increased in 2016-17. The average hourly rate awarded or approved also increased. What is not known is what portion of that increase can be attributed to "pent up" cases that were awaiting the Supreme Court's decision, and whether the increase therefore represents a significant trend or merely documents the result of the Castellanos decision. Further answers on what is not known may become more clear as future data is collected and analyzed. 

Proving Reasonable Fees in Florida

An interesting, but brief decision came from the Florida First District Court of Appeal in July. The Court addressed attorney fees in Clancy Co. v. Smith, Case No. 1D16-4881. This is not a workers' compensation case, but it is instructive nonetheless. 

In this circuit court case, the trial judge was asked to assess attorney's fees in a discovery dispute. Unfortunately, discovery disputes sometimes occur in litigation. In this instance, a party found itself frustrated with discovery and filed a motion for protective order and had to respond to a motion to compel discovery. The details of that dispute were not discussed by the appellate court. 

However, this combination of motions is not uncommon. One party is seeking particular documents or testimony. Not getting the responses that it wants, or believes it is entitled to, that party moves to compel production. They are essentially asking the judge to order a response or a more complete response. The party from which the documents or testimony has been sought feels aggrieved or pressured, and files a protective order, essentially asking the judge to make the opposing party stop seeking the discovery. 

An important point from Smith is that motions are the appropriate manner to seek relief. That is true in the Circuit court setting, and in Florida workers' compensation. When a party wants the judge to take action, the party asks by filing a motion. Rule 60Q6.115(1) says "Any request for an order or for other relief shall be by motion and shall have a title describing the relief requested." This is a very broad statement, "any request," and it is definite, "shall be by motion." When a party is in doubt as to what to do next in litigation, when it feels that a decision from the judge is needed, it seems a fair bet that a motion may be a good step to consider.

In Smith, however, the appellate issue is attorney fees. The trial judge concluded that Clancy and Co. "were entitled to an award of attorneys’ fees and costs" because it had to filed the "motion for protective order" and defend the "motion to compel discovery." That decision of fee entitlement was affirmed by the appellate court. To some, that in itself may be a lesson worth considering. When disputes over discovery escalate to the point that they require judicial intervention, the potential exists for attorney fee liability. 

In Smith, the circuit court awarded fees, and the appellate court found that decision appropriate. But the Court reversed the circuit judge regarding the amount of those fees. The Court conclude that "it was error" to award attorney fees "without making findings concerning the reasonableness" of the fees. The Court said that there should have been findings (conclusions reached by the trial court) regarding the "reasonableness." The Court held that "an order awarding fees without making specific findings about the hourly rate and the number of hours reasonably expended was fundamentally flawed." Citations omitted. 

The Court reminded that fee awards must "be supported by evidence detailing the nature and extent of the services performed and by expert testimony regarding the reasonableness of the fee." To allow a trial judge to make such findings (to reach such conclusions) the party that seeks fees "should submit time sheets and detailed billing statements to establish the amount of work performed and the time to perform each task." It is this evidence that allows the trial judge to reach those conclusions as to reasonableness. 

What is the relevance of this decision to workers' compensation disputes? The analysis of fees in workers' compensation may be similar.

In 2016, the Florida First District Court of Appeal rendered a decision in Miles v. City of Edgewater Police Dept.,190 So.3d 171 (Fla. 1st DCA 2016). Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016). These decisions provided interpretation regarding attorney fees in Florida workers' compensation, and both included "reasonable." 

In Miles, the Court concluded that an injured worker could "agree to pay her attorney with her own (or someone else's) funds, subject to a JCC's finding that the fee is reasonable." Miles at 184.(Emphasis added). In Castellanos, the Court concluded that "a reasonable attorney's fee has always been the linchpin to the constitutionality of the workers' compensation law." Castellanos at 435 (Emphasis added). And, that the case be "remanded to the JCC for entry of a reasonable attorney fee." Castellanos at 449 (Emphasis added). 

In the context of fees, "reasonable" may be a polestar for Florida attorneys. And, as such, there may be guidance in Smith regarding methodology or facts that can be provided to a trial judge, upon which such conclusions of "reasonable" might be based.

Legislating or Adjudicating

Who should make the law?

On April 20, 2016, the Florida First District Court of Appeal rendered a decision in Miles v. City of Edgewater Police Dept.,190 So.3d 171 (Fla. 1st DCA 2016). Eight days later, the Florida Supreme Court rendered Castellanos v. Next Door Company, 192 So.3d 431 (2016). 

Each concludes some aspect of constraint on Florida attorney's fees is unconstitutional. These decisions have generated a great deal of discussion in Florida, and beyond. As I attend various conferences and speak on various topics, questions seem to persistently gravitate back to these two. The third 2016 constitutional case in Florida, Westphal v. City of St Petersburg, 194 So.3d 311 (Fla. 2016), has seemingly generated far fewer questions or discussions. A recurring theme of the fee cases has become defining "reasonable."

I am participating on a panel discussion in October in Dallas. Somehow, the planners concluded that Texas (Ryan Brannan), Mississippi (Beth Aldridge), Virginia (Wesley Marshall) and Florida (yours truly), all pictured below, would make an interesting combination to discuss various current workers' compensation issues. I am humbled to be in that number, sitting among icons of the workers' compensation world. 

In preparation, our moderator, Texas Commissioner Ryan Brannan, sent us an outline of possible topics. One of them is essentially, "those Florida constitutional cases." So, perhaps I am being viewed as a "designated hitter," on workers' compensation constitutional complications? I look forward to Dallas in about two weeks (October 12-13). As I recently thought about these cases, I wrote a post on waiver of rights, which raises some (perhaps) intriguing questions about state law. And, there is an interesting issue of separation of powers that bears discussion today as well. 

Separation of Powers is an American constitutional construct with an intention of delineating how government will work. The framers of the U.S. Constitution get a great deal of credit, but remember they did their drafting in 1787. By then the thirteen colonies had each adopted a constitution following the Declaration of Independence in 1776. Not that the framer's work is not monumental, it is. But, they had a great many resourced to draw upon by then. 

This historical progression enabled significant state power and autonomy. So, the Articles of Confederation that followed independence enabled a weak national government. Before the U.S. Constitution could be finished, those independent states had issues and ideas that required compromise and accommodation. The U.S. Constitution is therefore a document replete with both borrowed ideas and compromise. 

One of its great concepts is the Separation of Powers. It is a hallmark of the U.S. Constitution, but not a compromise. The New York Times noted "the doctrine of separation of powers was accepted without question. Yet it was not written into the Constitution." Instead, the establishment of three constitutional branches created Separation of Powers, without being so named in the document. Of course, the concept itself was not new. It has deep roots in various forms. 

Charles Montesquieu had composed The Spirit of Laws in 1750. In it, he had described forms of government. And, "he asserted that, in the state that most effectively promotes liberty, these three powers must be confided to different individuals or bodies, acting independently." From his academics, the three branches were conceived, studied, adopted by states, and then ingrained in the U.S. Constitution. Undoubtedly, that document itself became a model as states thereafter joined the union, with each likewise drafting and ratifying a constitution, generally with three branches.

The idea is simple enough. The power in America is in its people. The people delegate power to the government. The government is one of limited, specific powers. The people, through the Constitution define what powers and authority each branch have. And for clarity, the tenth amendment was added to assure we remember that government is limited. The powers not stated are retained by the states or the people, in the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

The relationship of the three branches with the people are also somewhat different. With reasonable consistency, governors (executive) and representatives/senators (legislative) are generally elected. Who is eligible to serve in each may be defined by a constitution or statute. Sometimes there is no qualification stated. Recently I posted on the curiosity of Kansas allowing identity theft. And, more  recently the curiosity of qualification for Kansas governor was again in the news as third teenager announced candidacy for Kansas governor. 

Constitutions in each state likewise delineate how judges are selected. Some states elect judges, others appoint judges, and still others cannot be so readily categorized because they use various methods depending upon the type of judge. In Florida, all appellate judges are appointed. Trial judges are elected, but when vacancies occur the Governor may appoint a replacement. For judicial appointments, the Governor's discretion is constrained by a requirement her/his appointment come from a list of candidates nominated by an independent commission. Therefore, Florida might be characterized accurately as a "mixed" state regarding judicial officials. 

With this foundation in separation of powers, the Court's decision in Castellanos has some asking: which branch should make the law? There is a perception among some that the Court's Castellanos decision makes law, legislates. The decision returns Florida workers’ compensation attorney fee analysis to the realm of “reasonableness,” by its conclusion that Section 440.34 is unconstitutional. At least in the attorney fee context, the Court concluded that statutes that afford no basis for exception are unconstitutional. Whether that analysis would hold in other contexts is less clear. 

But "reasonableness" could be in the eye of the beholder (as, Plato assured us, is beauty). The Court decided that in determining reasonableness, there should be some standard. In fact, a critical finding of the Court, in dismissing Justice Polston's dissenting opinion, was that a more traditional "as applied" constitutionality decision "would be both unworkable and without any standards." The Court thus appears concerned with standards, and follows through in its holding by providing standards. 

In Castellanos, the Court returned Florida's workers' compensation system's fees to the Court's 1968 legislation. See Lee Eng'g & Constr. Co. v. Fellows, 209 So.2d 454, 456 (Fla.1968). There, without public discourse or debate, the Florida Supreme Court legislated the standards of attorney fee “reasonableness.” Lee Engineering relied upon the Court's earlier analysis in Florida Silica Sand Co. v. Parker, 118 So.2d 2 (Fla. 1960) and provisions of the Rules Regulating the Florida Bar, Castellanos at 439. 

The Court created standards, made law. Some contend that doing so, the Court abandoned the judicial role delineated for it in the Constitution. 

One perspective is that these standards are good; that the Court adoption of them leads to predictability and consistency. This perspective identifies the value of standards, stare decisis in the larger context, and argues that the Court was the only body in a position to create such standards. This perspective points out that there are many cases in which a court has found, and suggested need for legislative action, only to be answered by legislative silence. Thus, without this judicial legislation, the potential for decisions made without standards is too real, leaving the Court no alternative to action. 

Others argue that the appropriateness of both having standards, and of these particular standards, is proven by the Florida legislature later adopting those Lee standards in 1977, Section 440.34. They argue that any criticism of the Court's legislating these 1968 factors is moot in light of that subsequent legislative endorsement. A potential flaw in this endorsement analysis, distinct from the analysis of whether the Court should have legislated factors in the first place, is that some might argue that equal weight be given to the legislature's later decision to remove those factors in 2003. Thus, if deference to the Court comes from adoption, then as strongly comes criticism from the removal. 

As an aside, the adoption proponents might also have to explain the somewhat similar adoption of workers' compensation procedural rules by the Court. The Court, perhaps similarly, legislated procedural rules. The legislature accepted that by passing legislation that said the Court had such authority. The legislature later revoked that delegation. And, the Court later concluded that it never did have the authority to make such rules applicable to an executive branch agency. See, Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 494 (Fla. 2004), see also Separation of Powers - An Interesting Analysis. Though it took decades, the Court recognized Separation of Powers in Florida workers' compensation. 

There is also a school of thought that finds Separation of Powers more absolute. Some argue that the Court has no authority to decide what factors or standards might be appropriate for a determination of "reasonable." They argue that in establishing standards or factors, the Court is legislating, a power that the people have specifically delegated to their elected representatives; a power that the people have not delegated to appointed judges. They argue that court cases should address specific cases, within their own contexts, and that public policy and making law should be left to the legislative branch. 

Thus, there is a difference of opinion. Some believe that the Court legislated appropriately in establishing the standards initially in 1968, and that it has legislated appropriately again in Castellanos. Others contend that the Court acted outside the scope of its powers in legislating, and believe that eventually the Court will acknowledge that as it did decades after in Amendments. Notably, the Amendments decision is predicated on the very Separation of Powers analysis discussed above.

There are multiple perspectives on the constitutional authority issue. One argument is that the regulation of attorneys is certainly within the sole purview of the Florida Supreme Court. The courts have so held, see Pace v. Miami Dade School Bd., 868 So.2d 1286 (Fla. 1st DCA 2004); Art. V. section 15, Fla. Const. Thus, in adopting the Rules Regulating the Florida Bar, the Court would seemingly be within the powers delegated to it by the people of Florida. In that regard, perhaps few would contend that the Court legislated at all, but in the context of reasonable fees it merely regulated. 

Another perspective might be that the Rules Regulating the Florida Bar are regulations detailing what the Court thinks are "reasonable" fees; that this broad regulation defines what behavior is subject to attorney discipline and what is not. But, perhaps that "reasonable" for discipline (in a quasi criminal law context) is distinct from what might otherwise be labelled "reasonable" in a strictly civil law context. In other words, that which is sufficient to avoid Court discipline might be seen as a different analysis than what is appropriate under a remedial statutory benefit "scheme" (a word that has been used repeatedly by courts to describe workers' compensation).

So, should "reasonable" it be up to the legislature or the courts? Which should determine what "factors" are appropriate to consider in determining whether a fee is or is not reasonable? In the 2017 legislative session, some versions of House Bill 7085 (e.g. line 567, et seq.) included "factors" for a judge to consider in determining a "reasonable fee." Those legislative factors do not match the Lee Engineering factors. Thus legislative determination of factors in this setting might be construed differently than the 1977 legislative adoption of the Court's Lee or Rules Regulating the Florida Bar analyses.

Would legislatively adopted "reasonableness" factors or standards be appropriate in light of the Court's exclusive constitutional authority to regulate attorneys? Is the determination of appropriate "reasonableness" standards the exclusive purview of the Court? Alternatively, is a "reasonableness" standard establishment, at least in the narrow scope of a remedial statutory program like workers' compensation, within the legislative mandate and authority, similarly to the appropriate enactment of workers' compensation procedural rules?

In this context, of which branch should determine the standards or "factors" for reasonableness, does the nature of the branches influence perspective? Does the fact that legislators are elected by the very people governed provide any support for legislative exclusivity in establishing standards? Or, is the appointed judiciary as appropriate in exercising such legislative, or regulatory, function in this regard based upon its inexorable ties to the practice of law and regulation of lawyers?

From the perspective of the academic, these are fascinating questions. But, from the perspective of the marketplace, the employees, employers, and attorneys of Florida, these Separation of Powers questions are perhaps a bit closer to home. Any attorney, subject potentially to either discipline (by The Florida Bar or Supreme Court) or scrutiny (under any statutory standard) would likely prefer to understand at the outset what standards control the determination of "reasonable." 

I look forward to discussing these points and more at the Texas Workers' Compensation Conference in about two weeks.