Senate Bill 1432c1

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    Florida Senate - 1998                           CS for SB 1432

    By the Committee on Banking and Insurance and Senator
    Brown-Waite




    311-1854-98

  1                      A bill to be entitled

  2         An act relating to the delivery of health care

  3         services; creating s. 624.1291, F.S.; providing

  4         an exemption from the Insurance Code for

  5         certain health care services; creating s.

  6         624.1292, F.S.; providing an exemption from the

  7         Insurance Code for certain contracts with

  8         self-funded ERISA plans; creating part IV of

  9         ch. 641, F.S., the

10         "Provider-Sponsored-Organization Act";

11         providing legislative findings and purposes

12         with respect to certain federal requirements

13         for authorizing provider-sponsored

14         organizations in this state to provide health

15         care coverage to Medicare beneficiaries under

16         the Medicare Choice plan; providing

17         definitions; prohibiting a provider-sponsored

18         organization from transacting insurance

19         business other than the offering of Medicare

20         Choice plans; providing applicability of parts

21         I and III of ch. 641, F.S., to

22         provider-sponsored organizations; providing

23         exceptions; amending s. 641.227, F.S.;

24         providing for deposits into the Rehabilitation

25         Administrative Expense Fund by a

26         provider-sponsored organization; providing for

27         reimbursements; amending s. 641.316, F.S.,

28         relating to fiscal intermediary services;

29         providing for an exemption from s. 455.654,

30         F.S., to provider-sponsored organizations,

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    Florida Senate - 1998                           CS for SB 1432
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  1         relating to financial arrangements; providing

  2         an effective date.

  3

  4  Be It Enacted by the Legislature of the State of Florida:

  5

  6         Section 1.  Section 624.1291, Florida Statutes, is

  7  created to read:

  8         624.1291  Certain health care services; exemption from

  9  code.--Any person who enters into a contract or agreement with

10  an authorized insurer, or with a health maintenance

11  organization or provider sponsored organization that has

12  obtained a certificate of authority pursuant to chapter 641,

13  to provide health care services to persons insured under a

14  health insurance policy, health maintenance organization

15  contract, or provider-sponsored-organization contract shall

16  not be deemed to be an insurer and shall not be subject to the

17  provisions of this code, regardless of any risk assumed under

18  the contract or agreement, provided that:

19         (1)  The authorized insurer, health maintenance

20  organization, or provider-sponsored organization remains

21  contractually liable to the insured to the full extent

22  provided in the policy or contract with the insured;

23         (2)  The person does not receive any premium payment or

24  per-capita fee from the insured other than fees for services

25  not covered under the insured's policy or contract, such as

26  deductible amounts, co-payments, or charges in excess of

27  policy or contract limits which are otherwise allowed to be

28  collected; and

29         (3)  Any person who is an administrator as defined in

30  s. 626.88 must meet the requirements of part VII of chapter

31  626, and any person who is performing fiscal intermediary

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    Florida Senate - 1998                           CS for SB 1432
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  1  services as defined in s. 641.316 must meet the requirements

  2  of that section.

  3         Section 2.  Section 624.1292, Florida Statutes, is

  4  created to read:

  5         624.1292  Contracts with self-funded ERISA plans;

  6  exemption from code.--An insurer, a health maintenance

  7  organization, provider-sponsored organization, hospital,

  8  licensed health care provider, or any group or combination of

  9  such persons or entities shall not be deemed to be an insurer

10  and shall not be subject to the provisions of this code with

11  respect to contracts or agreements with an employer that has

12  established a self-funded employee-benefit plan under the

13  Employee Retirement Income Security Act (ERISA), 29 U.S.C. ss.

14  1001-1461, under which:

15         (1)  The employer retains the ultimate obligation to

16  provide health benefits to covered employees or the financial

17  risk relating thereto; and

18         (2)  The insurer, health maintenance organization,

19  provider-sponsored organization, hospital, or licensed health

20  care provider does not receive any premium payment or

21  per-capita fee from the covered employees other than fees for

22  services not covered by the plan, such as deductible amounts,

23  co-payments, or charges in excess of plan limits that are

24  otherwise allowed to be collected.

25         Section 3.  Part IV of chapter 641, Florida Statutes,

26  consisting of sections 641.801, 641.802, 641.803, 641.804,

27  641.805, and 641.806, Florida Statutes, is created to read:

28         641.801  Short title.--This part may be cited as the

29  "Provider-Sponsored-Organization Act."

30         641.802  Declaration of legislative findings and

31  purposes.--

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    Florida Senate - 1998                           CS for SB 1432
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  1         (1)  The Legislature finds that a major restructuring

  2  of health care has taken place which has changed the way in

  3  which health care services are paid for and delivered and that

  4  today the emphasis is on providing cost-conscious health care

  5  services through managed care. The Legislature recognizes that

  6  alternative methods for the delivery of health care are needed

  7  to promote competition and increase patients' choices.

  8         (2)  The Legislature finds that the United States

  9  Congress has enacted legislation that allows

10  provider-sponsored organizations to provide coordinated-care

11  plans to Medicare enrollees through the Medicare Choice

12  program. The federal legislation requires any organization

13  that offers a Medicare Choice plan to be organized and

14  licensed under state law as a risk-bearing entity eligible to

15  offer health-benefit coverage in the state in which it offers

16  a Medicare Choice plan.

17         (3)  The Legislature finds that these plans, when

18  properly operated, emphasize cost and quality controls while

19  ensuring that the provider has control over medical decisions.

20         (4)  The Legislature declares that it is the policy of

21  this state:

22         (a)  To eliminate legal barriers to the organization,

23  promotion, and expansion of provider-sponsored organizations

24  that offer Medicare Choice plans in order to encourage the

25  development of valuable options for the Medicare beneficiaries

26  of this state.

27         (b)  To recognize that comprehensive provider-sponsored

28  organizations are exempt from the insurance laws of this state

29  except in the manner and to the extent set forth in this part.

30         641.803  Definitions.--As used in this part, the term:

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    Florida Senate - 1998                           CS for SB 1432
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  1         (1)  "Affiliation" means a relationship between

  2  providers in which, through contract, ownership, or otherwise:

  3         (a)  One provider directly or indirectly controls, is

  4  controlled by, or is under common control with the other;

  5         (b)  Both providers are part of a controlled group of

  6  corporations under s. 1563 of the Internal Revenue Code of

  7  1986;

  8         (c)  Each provider is a participant in a lawful

  9  combination under which each provider shares substantial

10  financial risk in connection with the organization's

11  operations; or

12         (d)  Both providers are part of an affiliated service

13  group under s. 414 of the Internal Revenue Code of 1986.

14         (2)  "Comprehensive health care services" means

15  services, medical equipment, and supplies required under the

16  Medicare Choice program.

17         (3)  "Copayment" means a specific dollar amount that

18  the subscriber must pay upon receipt of covered health care

19  services as required or authorized under the Medicare Choice

20  program.

21         (4)  "Provider-sponsored contract" means any contract

22  entered into by a provider-sponsored organization that serves

23  Medicare Choice beneficiaries.

24         (5)  "Provider-sponsored organization" means any

25  organization authorized under this part which:

26         (a)  Is established, organized, and operated by a

27  health care provider or group of affiliated health care

28  providers;

29         (b)  Provides a substantial proportion of the health

30  care items and services specified in the Medicare Choice

31  contract, as defined by the Secretary of the United States

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    Florida Senate - 1998                           CS for SB 1432
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  1  Department of Health and Human Services, directly through the

  2  provider or affiliated group of providers; and

  3         (c)  Shares, with respect to its affiliated providers,

  4  directly or indirectly, substantial financial risk in the

  5  provision of such items and services and has at least a

  6  majority financial interest in the entity.

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  8  As used in this subsection, the term "substantial proportion"

  9  has the meaning ascribed by the Secretary of the United States

10  Department of Health and Human Services after having taken

11  into account the need for such an organization to assume

12  responsibility for providing significantly more than the

13  majority of the items and services under the Medicare Choice

14  contract through its own affiliated providers and the

15  remainder of the items and services under such contract

16  through providers with which the organization has an agreement

17  to provide such items and services. Consideration will also be

18  given to the need for the organization to provide a limited

19  proportion of the items and services under the contract

20  through entities that are neither affiliated with nor have an

21  agreement with the organization.

22         (6)  "Subscriber" means a Medicare Choice enrollee who

23  is eligible for coverage as a Medicare beneficiary.

24         (7)  "Surplus" means total assets in excess of total

25  liabilities as determined by the federal rules on solvency

26  standards established by the Secretary of the United States

27  Department of Health and Human Services pursuant to s. 1856(a)

28  of the Balanced Budget of 1997, for provider-sponsored

29  organizations that offer the Medicare Choice plan.

30         641.804  Applicability of other laws.--Except as

31  provided in this part, provider-sponsored organizations shall

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    Florida Senate - 1998                           CS for SB 1432
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  1  be governed by this part and are exempt from all other

  2  provisions of the Florida Insurance Code.

  3         641.805  Insurance business not authorized.--Neither

  4  the Florida Insurance Code nor this part authorize any

  5  provider-sponsored organization to transact any insurance

  6  business other than to offer Medicare Choice plans pursuant to

  7  s. 1855 of the Balanced Budget Act of 1997.

  8         641.806  Applicability of parts I and III;

  9  exceptions.--The provisions of parts I and III of this chapter

10  apply to provider-sponsored organizations to the same extent

11  that such sections apply to health maintenance organizations,

12  except that:

13         (1)  The definitions used in this part control to the

14  extent of any conflict with the definitions used in s. 641.19.

15         (2)  The certificate of authority, application for

16  certificate, and all other forms issued or prescribed by the

17  department pursuant to this part shall refer to a

18  "provider-sponsored organization" rather than a "health

19  maintenance organization."

20         (3)  Such provisions do not apply to the extent of any

21  conflict with ss. 1855 and 1856 of the Balanced Budget Act of

22  1997 and rules and regulations adopted by the Secretary of the

23  United States Department of Health and Human Services

24  including, but not limited to, requirements related to

25  surplus, net worth, assets, liabilities, investments,

26  provider-sponsored-organization contracts, payment of

27  benefits, and procedures for grievances and appeals.

28         (4)  Such provisions do not apply to the extent of any

29  waiver granted by the Secretary of the United States

30  Department of Health and Human Services under s. 1856(a)(2) of

31  the Balanced Budget Act of 1997.

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    Florida Senate - 1998                           CS for SB 1432
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  1         (5)  Such provisions do not apply to the extent that

  2  they are unrelated to, or inconsistent with, the limited

  3  authority of provider-sponsored organizations to offer only

  4  Medicare Choice plans.

  5         (6)  Section 641.228, related to the Florida Health

  6  Maintenance Organization Consumer Assistance Plan, does not

  7  apply.

  8         Section 4.  Section 641.227, Florida Statutes, is

  9  amended to read:

10         641.227  Rehabilitation Administrative Expense Fund.--

11         (1)  The department may shall not issue or permit to

12  exist a certificate of authority to operate a health

13  maintenance organization or provider-sponsored organization in

14  this state unless the organization has deposited with the

15  department $10,000 in cash for use in the Rehabilitation

16  Administrative Expense Fund as established in subsection (2).

17         (2)  The department shall maintain all deposits

18  received under this section and all income from such deposits

19  in trust in an account titled "Rehabilitation Administrative

20  Expense Fund."  The fund shall be administered by the

21  department and shall be used for the purpose of payment of the

22  administrative expenses of the department during any

23  rehabilitation of a health maintenance organization or

24  provider-sponsored organization, when rehabilitation is

25  ordered by a court of competent jurisdiction.

26         (3)  Upon successful rehabilitation of a health

27  maintenance organization or provider-sponsored organization,

28  the organization shall reimburse the fund for the amount of

29  expenses incurred by the department during the court-ordered

30  rehabilitation period.

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    Florida Senate - 1998                           CS for SB 1432
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  1         (4)  If a court of competent jurisdiction orders

  2  liquidation of a health maintenance organization or

  3  provider-sponsored organization, the fund shall be reimbursed

  4  for expenses incurred by the department as provided for in

  5  chapter 631.

  6         (5)  Each deposit made under this section shall be

  7  allowed as an asset for purposes of determination of the

  8  financial condition of the health maintenance organization or

  9  provider-sponsored organization.  The deposit shall be

10  refunded to the organization only when the organization both

11  ceases operation as a health maintenance organization or

12  provider-sponsored organization and no longer holds a

13  subsisting certificate of authority.

14         Section 5.  Paragraph (b) of subsection (2) and

15  subsection (5) of section 641.316, Florida Statutes, are

16  amended to read:

17         641.316  Fiscal intermediary services.--

18         (1)  It is the intent of the Legislature, through the

19  adoption of this section, to ensure the financial soundness of

20  fiscal intermediary services organizations established to

21  develop, manage, and administer the business affairs of health

22  care professional providers such as medical doctors, doctors

23  of osteopathy, doctors of chiropractic, doctors of podiatric

24  medicine, doctors of dentistry, or other health professionals

25  regulated by the Department of Health.

26         (2)(a)  The term "fiduciary" or "fiscal intermediary

27  services" means reimbursements received or collected on behalf

28  of health care professionals for services rendered, patient

29  and provider accounting, financial reporting and auditing,

30  receipts and collections management, compensation and

31  reimbursement disbursement services, or other related

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    Florida Senate - 1998                           CS for SB 1432
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  1  fiduciary services pursuant to health care professional

  2  contracts with health maintenance organizations.

  3         (b)  The term "fiscal intermediary services

  4  organization" means a person or entity that which performs

  5  fiduciary or fiscal intermediary services to health care

  6  professionals who contract with health maintenance

  7  organizations or provider-sponsored organizations other than a

  8  fiscal intermediary services organization owned, operated, or

  9  controlled by a hospital licensed under chapter 395, an

10  insurer licensed under chapter 624, a third-party

11  administrator licensed under chapter 626, a prepaid limited

12  health organization licensed under chapter 636, a health

13  maintenance organization licensed under this chapter, a

14  provider-sponsored organization licensed under this chapter,

15  or physician group practices as defined in s. 455.236(3)(f).

16         (3)  A fiscal intermediary services organization which

17  is operated for the purpose of acquiring and administering

18  provider contracts with managed care plans for professional

19  health care services, including, but not limited to, medical,

20  surgical, chiropractic, dental, and podiatric care, and which

21  performs fiduciary or fiscal intermediary services shall be

22  required to secure and maintain a fidelity bond in the minimum

23  amount of $10 million. This requirement shall apply to all

24  persons or entities engaged in the business of providing

25  fiduciary or fiscal intermediary services to any contracted

26  provider or provider panel. The fidelity bond shall provide

27  coverage against misappropriation of funds by the fiscal

28  intermediary or its officers, agents, or employees; must be

29  posted with the department for the benefit of managed care

30  plans, subscribers, and providers; and must be on a form

31  approved by the department. The fidelity bond must be

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    Florida Senate - 1998                           CS for SB 1432
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  1  maintained and remain unimpaired as long as the fiscal

  2  intermediary services organization continues in business in

  3  this state and until the termination of its registration.

  4         (4)  A fiscal intermediary services organization may

  5  not collect from the subscriber any payment other than the

  6  copayment or deductible specified in the subscriber agreement.

  7         (5)  Any fiscal intermediary services organization,

  8  other than a fiscal intermediary services organization owned,

  9  operated, or controlled by a hospital licensed under chapter

10  395, an insurer licensed under chapter 624, a third-party

11  administrator licensed under chapter 626, a prepaid limited

12  health organization licensed under chapter 636, a health

13  maintenance organization licensed under this chapter, a

14  provider-sponsored organization licensed under this chapter,

15  or physician group practices as defined in s. 455.236(3)(f),

16  must register with the department and meet the requirements of

17  this section. In order to register as a fiscal intermediary

18  services organization, the organization must comply with ss.

19  641.21(1)(c) and (d) and 641.22(6). Should the department

20  determine that the fiscal intermediary services organization

21  does not meet the requirements of this section, the

22  registration shall be denied. In the event that the registrant

23  fails to maintain compliance with the provisions of this

24  section, the department may revoke or suspend the

25  registration. In lieu of revocation or suspension of the

26  registration, the department may levy an administrative

27  penalty in accordance with s. 641.25.

28         (6)  The department shall promulgate rules necessary to

29  implement the provisions of this section.

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    Florida Senate - 1998                           CS for SB 1432
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  1         Section 6.  A provider-sponsored organization is exempt

  2  from section 455.654, Florida Statutes, for the provision of

  3  health care services to enrollees of a Medicare Choice plan.

  4         Section 7.  This act shall take effect October 1, 1998.

  5

  6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  7                         Senate Bill 1432

  8

  9  The committee substitute provides the following changes:

10  1.   Revises the exemption from the Insurance Code for persons
         providing health care services under a contract with an
11       insurer, HMO, or PSO ("downstream risk" providers);

12  2.   Revises the exemption from the Insurance Code for certain
         persons who contract with an employer that has
13       established a self-funded plan under ERISA;

14  3.   Creates a new part IV of chapter 641,F.S., for the
         regulation and licensure of provider-sponsored
15       organizations; and

16  4.   Replaces the bill's specific requirements for PSOs with
         general applicability of parts I and III of chapter
17       641,F.S., subject to specified exceptions.

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