CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
                                   .
                                   .
 1                                 .
                                   .
 2                                 .
                                   .
 3                                 .
                                   .
 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative Cosgrove offered the following:

12

13         Amendment (with title amendment) 

14         On page 1,

15  remove from the bill:  everthing after the enacting clause

16

17  and insert in lieu thereof:

18         Section 1.  Subsections (1), (9), and (19), paragraph

19  (h) of subsection (12), and paragraph (b) of subsection (15)

20  of section 409.910, Florida Statutes, are amended to read:

21         409.910  Responsibility for payments on behalf of

22  Medicaid-eligible persons when other parties are liable.--

23         (1)(a)  It is the intent of the Legislature that

24  Medicaid be the payor of last resort for medically necessary

25  goods and services furnished to Medicaid recipients. All other

26  sources of payment for medical care are primary to medical

27  assistance provided by Medicaid. If benefits of a liable third

28  party are available, it is the intent of the Legislature that

29  Medicaid be repaid in full and prior to any other person,

30  program, or entity. Medicaid is to be repaid in full from, and

31  to the extent of, any third-party benefits, regardless of

                                  1

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  whether a recipient is made whole or other creditors paid.

 2  Principles of common law and equity as to assignment, lien,

 3  and subrogation, comparative negligence, assumption of risk,

 4  and all other affirmative defenses normally available to a

 5  liable third party, are to be abrogated to the extent

 6  necessary to ensure full recovery by Medicaid from third-party

 7  resources; such principles shall apply to a recipient's right

 8  to recovery against any third party, but shall not act to

 9  reduce the recovery of the agency pursuant to this section.

10  Comparative negligence and assumption of the risk defenses

11  normally available to a liable third party against a Medicaid

12  recipient do not apply in any action by the agency to recover

13  the costs of the treatment of disease or injury caused by the

14  use of cigarettes. Recovery against a cigarette manufacturer

15  is permitted only when the department proves each element of

16  an existing common law or statutory cause of action, and

17  nothing in this section is intended to alter or limit the

18  elements that must be proven by the department in order to

19  prevail on any such cause of action. The concept of joint and

20  several liability applies to any recovery on the part of the

21  agency. It is intended that if the resources of a liable third

22  party become available at any time, the public treasury should

23  not bear the burden of medical assistance to the extent of

24  such resources. Common-law theories of recovery shall be

25  liberally construed to accomplish this intent.

26         (b)  As used in this section, the term:

27         1.  "Cigar" means any roll for smoking which is not

28  intended for direct inhalation into the respiratory system of

29  the person smoking such tobacco product.

30         2.  "Cigarette" means any roll for smoking, except one

31  in which the tobacco is fully naturally fermented, without

                                  2

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  regard to the kind of tobacco or other substances used in the

 2  inner roll or the nature or composition of the material in

 3  which the roll is wrapped, which is made wholly or in part of

 4  tobacco irrespective of size or shape and whether the tobacco

 5  is flavored, adulterated, or mixed with any other ingredient,

 6  but the term does not include tobacco products.

 7         3.  "Cigarette manufacturer" means any person or

 8  corporation that manufactures, sells, or wholesales

 9  cigarettes. The term does not include growers of natural leaf

10  tobacco or independent retailers.

11         4.  "Independent retailers" means any person or

12  corporation engaged in the business of selling cigarettes or

13  any other product to ultimate consumers.

14         5.  "Tobacco products" means loose tobacco suitable for

15  smoking, snuff, snuff flour, cavendish, plug and twist

16  tobacco, fine cuts and other chewing tobaccos, shorts, refuse

17  scraps, clippings, cuttings, and sweepings of tobacco, and

18  other kinds and forms of tobacco prepared in such manner as to

19  be suitable for chewing. The term includes cigars but does not

20  include cigarettes.

21         (9)  If In the event that medical assistance has been

22  provided by Medicaid to more than one recipient for treatment

23  of disease or injury caused by the use of cigarettes, and the

24  agency elects to seek recovery from liable third parties due

25  to actions by the third parties or circumstances which involve

26  common issues of fact or law, the agency may bring an action

27  to recover sums paid to all such recipients in one proceeding.

28  In any action brought under this subsection, the admissibility

29  of evidence is governed by the Florida Evidence Code shall be

30  liberally construed regarding the issues of causation and of

31  aggregate damages. The issue of causation or aggregate and

                                  3

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  damages in any such action may be proven by use of aggregate

 2  statistical analysis as long as such analysis takes into

 3  account pre-existing conditions and other contributing causes

 4  of disease or injury not directly related to cigarettes.

 5         (a)  In any action under this subsection to recover

 6  costs of treatment of disease or injury caused by the use of

 7  cigarettes wherein the number of recipients for which medical

 8  assistance has been provided by Medicaid is so large as to

 9  cause it to be impracticable to join or identify each claim,

10  the agency shall not be required to so identify the individual

11  recipients for which payment has been made, but rather can

12  proceed to seek recovery based upon payments made on behalf of

13  an entire class of recipients. Notwithstanding the foregoing

14  sentence, a court shall permit a cigarette manufacturer to

15  conduct reasonable sample discovery, in light of the claims or

16  defenses asserted, concerning recipients whose injuries are

17  claimed to result from the use of cigarettes.

18         (b)  In any action brought pursuant to this subsection

19  to recover costs of treatment of disease or injury caused by

20  the use of cigarettes wherein a third party is liable due to

21  its manufacture, sale, or distribution of a product, the

22  agency shall be allowed to proceed under a market share

23  theory, provided that the products involved are substantially

24  interchangeable among brands, and that substantially similar

25  factual or legal issues would be involved in seeking recovery

26  against each liable third party individually. Each

27  manufacturer found liable under this subsection is responsible

28  for paying only that portion of the damages that is

29  commensurate with its share of the market; however, if any

30  share of the market is not recoverable or collectible, such

31  portion must be allocated pro rata to each of the financially

                                  4

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  responsible manufacturers.

 2         (12)  The department may, as a matter of right, in

 3  order to enforce its rights under this section, institute,

 4  intervene in, or join any legal or administrative proceeding

 5  in its own name in one or more of the following capacities:

 6  individually, as subrogee of the recipient, as assignee of the

 7  recipient, or as lienholder of the collateral.

 8         (h)  Except as otherwise provided in this section,

 9  actions to enforce the rights of the department under this

10  section shall be commenced within 5 years after the date a

11  cause of action accrues, with the period running from the

12  later of the date of discovery by the department of a case

13  filed by a recipient or his or her legal representative, or of

14  discovery of any judgment, award, or settlement contemplated

15  in this section, or of the provision of medical assistance to

16  a recipient. Each item of expense provided by the agency shall

17  be considered to constitute a separate cause of action for

18  purposes of this subsection. The defense of statute of repose

19  shall not apply to any action brought under this section by

20  the agency. Nothing in this paragraph affects or prevents a

21  proceeding to enforce a lien during the existence of the lien

22  as set forth in subparagraph (6)(d)9 (6)(c)9.

23         (15)  The department is authorized to enter into

24  agreements to enforce or collect medical support and other

25  third-party benefits.

26         (b)  If an agreement to enforce or collect third-party

27  benefits is entered into by the department with any person

28  other than those described in paragraph (a), including any

29  attorney retained by the department who is not an employee or

30  agent of any person named in paragraph (a), then the

31  department may pay such person a percentage of the amount

                                  5

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  actually collected and reimbursed to the department as a

 2  result of the efforts of the person, to the extent of medical

 3  assistance paid by Medicaid. In no case shall the percentage

 4  exceed a maximum established by the department, which shall

 5  not exceed the lesser of a percentage determined to be

 6  commercially reasonable or 30 percent of the amount actually

 7  collected and reimbursed to the department as a result of the

 8  efforts of the person under contract. However, in any action

 9  under this subsection to recover costs of treatment of disease

10  or injury caused by the use of cigarettes, the court pursuant

11  to Rule 4-1.5, Rules Regulating The Florida Bar, shall provide

12  a thorough and rigorous review of the appropriateness of the

13  amount of attorney's fees for state-retained counsel. The

14  court shall also consider existing case law and

15  reasonableness, fairness, and equity to the taxpayers and

16  shall ensure that any fee award is not excessive and does not

17  constitute a windfall to state-retained counsel. After such

18  thorough and rigorous review, if the court determines that the

19  attorney's fees are in compliance with Rule 4-1.5, Rules

20  Regulating The Florida Bar, and that the fees are reasonable,

21  fair, and equitable to taxpayers and are not excessive or

22  unjust, the court shall authorize attorney's fees for

23  state-retained counsel. In any such contract concerning

24  cigarette litigation, the Attorney General shall be the

25  managing attorney.

26         (19)  In cases of suspected criminal violations or

27  fraudulent activity, on the part of any person including a

28  liable third party, the department may bring is authorized to

29  take any civil action permitted at law or equity to recover

30  the greatest possible amount, including without limitation,

31  treble damages under s. 772.104 s. 772.73. In any action in

                                  6

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663




                                                   HOUSE AMENDMENT

                                                  Bill No. HB 3077

    Amendment No.     (for drafter's use only)





 1  which the recipient has no right to intervene, or does not

 2  exercise his or her right to intervene, any amounts recovered

 3  under this subsection shall be the property of the agency, and

 4  the recipient shall have no right or interest in such

 5  recovery.

 6         Section 2.  The 1994 amendments, enacted by chapter

 7  94-251, Laws of Florida, effectuate the purpose of the 1990

 8  Medicaid Third-Party Liability Act, are remedial in nature,

 9  and shall be retroactively applied to payments made by the

10  state beginning October 3, 1990, in accordance with the

11  effective date of the 1990 Medicaid Third-Party Liability Act,

12  as set forth in chapter 90-295, Laws of Florida.

13         Section 3.  This act shall take effect upon becoming a

14  law.

15

16

17  ================ T I T L E   A M E N D M E N T ===============

18  And the title is amended as follows:

19         On page 1,lines 2 through 9

20  remove from the title of the bill:  all of said lines

21

22  and insert in lieu thereof:

23         An act relating to Medicaid third-party

24         liability; amending s. 409.910, F.S.;

25         clarifying legislative intent as to certain

26         amendments enacted by ch. 94-251, Laws of

27         Florida; providing definitions; providing for

28         judicial review of certain fees; recognizing

29         the remedial intent of ch. 94-251, Laws of

30         Florida; providing an effective date.

31

                                  7

    File original & 9 copies    03/06/98
    hmo0008                     08:16 am         03077-0003-062663