Senate Bill 0490

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


    Florida Senate - 1998                                   SB 490

    By Senator Silver





    38-312-98                                          See HB 1547

  1                      A bill to be entitled

  2         An act relating to health care service

  3         programs; amending s. 440.11, F.S.;

  4         establishing exclusive liability of health

  5         maintenance organizations; providing

  6         application; amending s. 641.28, F.S.; revising

  7         award of attorney's fees in civil actions under

  8         certain circumstances; amending s. 641.315,

  9         F.S.; providing additional criteria for certain

10         provider contracts; amending s. 641.3903, F.S.;

11         specifying additional practices as unfair

12         methods of competition or unfair or deceptive

13         acts or practices; amending s. 641.3917, F.S.;

14         authorizing civil actions against health

15         maintenance organizations by certain persons

16         under certain circumstances; providing

17         requirements and procedures; providing for

18         liability for damages and attorney's fees;

19         prohibiting punitive damages under certain

20         circumstances; requiring the advance posting of

21         discovery costs; providing a legislative

22         declaration; providing an appropriation;

23         providing an effective date.

24

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

26

27         Section 1.  Subsection (4) of section 440.11, Florida

28  Statutes, is amended to read:

29         440.11  Exclusiveness of liability.--

30         (4)  Notwithstanding the provisions of s. 624.155 or s.

31  641.3917, the liability of a carrier or a health maintenance

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1  organization to an employee or to anyone entitled to bring

  2  suit in the name of the employee shall be as provided in this

  3  chapter, which shall be exclusive and in place of all other

  4  liability.

  5         Section 2.  Section 641.28, Florida Statutes, is

  6  amended to read:

  7         641.28  Civil remedy.--

  8         (1)  In any civil action brought to enforce the terms

  9  and conditions of a health maintenance organization contract:

10         (a)  If the civil action is filed before or within 60

11  days after the subscriber or enrollee has filed a grievance or

12  notice of intent to sue with the statewide provider and

13  subscriber assistance program established pursuant to s.

14  408.7056 or a notice pursuant to s. 641.3917, the prevailing

15  party is entitled to recover reasonable attorney's fees and

16  court costs.

17         (b)  If the civil action is filed pursuant to s.

18  641.3917 more than 60 days after the subscriber or enrollee

19  files a notice of intent to sue with the statewide provider

20  and subscriber assistance program established pursuant to s.

21  408.7056 or a notice pursuant to s. 641.3917, and the

22  subscriber or enrollee receives a final judgment or decree

23  against the health maintenance organization in favor of the

24  subscriber or enrollee, the court shall enter a judgment or

25  decree against the health maintenance organization in favor of

26  the subscriber or enrollee for reasonable attorney's fees and

27  court costs.

28         (2)  This section shall not be construed to authorize a

29  civil action against the department, its employees, or the

30  Insurance Commissioner or against the Agency for Health Care

31  Administration, its employees, or the director of the agency.

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1         Section 3.  Subsection (8) is added to section 641.315,

  2  Florida Statutes, to read:

  3         641.315 Provider contracts.--

  4         (8)  No contract between a health maintenance

  5  organization and a provider of health care services shall

  6  contain any provision restricting the provider's ability to

  7  communicate information to the provider's patient regarding

  8  medical care or treatment options for the patient when the

  9  provider deems knowledge of such information by the patient to

10  be in the best interest of the patient.

11         Section 4.  Paragraphs (c), (d), and (e) are added to

12  subsection (10) of section 641.3903, Florida Statutes, and

13  subsection (14) is added to that section, to read:

14         641.3903  Unfair methods of competition and unfair or

15  deceptive acts or practices defined.--The following are

16  defined as unfair methods of competition and unfair or

17  deceptive acts or practices:

18         (10)  ILLEGAL DEALINGS IN PREMIUMS; EXCESS OR REDUCED

19  CHARGES FOR HEALTH MAINTENANCE COVERAGE.--

20         (c)  Canceling or otherwise terminating any health

21  maintenance contract or coverage, or requiring execution of a

22  consent to rate endorsement, during the stated contract term

23  for the purpose of offering to issue, or issuing, a similar or

24  identical contract to the same subscriber or enrollee with the

25  same exposure at a higher premium rate or continuing an

26  existing contract with the same exposure at an increased

27  premium.

28         (d)  Issuing a nonrenewal notice on any health

29  maintenance organization contract, or requiring execution of a

30  consent to rate endorsement, for the purpose of offering to

31  issue, or issuing, a similar or identical contract to the same

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1  subscriber or enrollee at a higher premium rate or continuing

  2  an existing contract at an increased premium without meeting

  3  any applicable notice requirements.

  4         (e)  Canceling or issuing a nonrenewal notice on any

  5  health maintenance organization contract without complying

  6  with any applicable cancellation or nonrenewal provision

  7  required under the Florida Insurance Code.

  8         (14)  REFUSAL TO COVER.--In addition to other

  9  provisions of this code, the refusal to cover, or continue to

10  cover, any individual solely because of:

11         (a)  Race, color, creed, marital status, sex, or

12  national origin;

13         (b)  The residence, age, or lawful occupation of the

14  individual, unless there is a reasonable relationship between

15  the residence, age, or lawful occupation of the individual and

16  the coverage issued or to be issued; or

17         (c)  The fact that the enrollee or applicant had been

18  previously refused insurance coverage or health maintenance

19  organization coverage by any insurer or health maintenance

20  organization when such refusal to cover or continue to cover

21  for this reason occurs with such frequency as to indicate a

22  general business practice.

23         Section 5.  Section 641.3917, Florida Statutes, is

24  amended to read:

25         641.3917  Civil liability.--The provisions of this part

26  are cumulative to rights under the general civil and common

27  law, and no action of the department shall abrogate such

28  rights to damage or other relief in any court.

29         (1)  Any person to whom a duty is owed may bring a

30  civil action against a health maintenance organization when

31  such person suffers damages as a result of:

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1         (a)  A violation of s. 641.3903(5)(a), (b), (c)1.-7.,

  2  (10), or (12) by the health maintenance organization; or

  3         (b)  The health maintenance organization's failure to

  4  provide a covered service when in good faith the health

  5  maintenance organization should have provided such service had

  6  it acted fairly and honestly toward its subscriber or enrollee

  7  and with due regard for the subscriber's interests and, in the

  8  independent medical judgment of a contract treating physician

  9  or other physician authorized by the health maintenance

10  organization, the service is medically necessary.

11

12  However, a person pursuing a remedy under this section need

13  not prove that such act was committed or performed with such

14  frequency as to indicate a general business practice.

15         (2)(a)  As a condition precedent to bringing an action

16  under this section, the department and the health maintenance

17  organization must have been given 60 days' written notice of

18  the violation.  If the department returns a notice for lack of

19  specificity, the 60-day time period shall not begin until a

20  proper notice is filed.

21         (b)  The notice shall be on a form provided by the

22  department and shall state with specificity the following

23  information and such other information as the department may

24  require:

25         1.  The provision of law, including the specific

26  language of the law, which the health maintenance organization

27  has allegedly violated.

28         2.  The facts and circumstances giving rise to the

29  violation.

30         3.  The name of any individual involved in the

31  violation.

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1         4.  Any reference to specific contract language that is

  2  relevant to the violation.

  3         5.  A statement that the notice is given in order to

  4  perfect the right to pursue the civil remedy authorized by

  5  this section.

  6         (c)  Within 20 days after receipt of the notice, the

  7  department may return any notice that does not provide the

  8  specific information required by this section, and the

  9  department shall indicate the specific deficiencies contained

10  in the notice.  A determination by the department to return a

11  notice for lack of specificity is exempt from the requirements

12  of chapter 120.

13         (d)  No action shall lie under this section if, within

14  60 days after filing notice, the damages are paid or the

15  circumstances giving rise to the violation are corrected.

16         (e)  The health maintenance organization that is the

17  recipient of a notice filed pursuant to this section shall

18  report to the department on the disposition of the alleged

19  violation.

20         (f)  The applicable statute of limitations for an

21  action under this section shall be tolled for a period of 65

22  days by the mailing of the notice required by this subsection

23  or the mailing of a subsequent notice required by this

24  subsection.

25         (3)  Upon adverse adjudication at trial or upon appeal,

26  the health maintenance organization shall be liable for

27  damages, together with court costs and reasonable attorney's

28  fees, incurred by the plaintiff.

29         (4)  Punitive damages shall not be awarded under this

30  section unless the acts giving rise to the violation occur

31  with such frequency as to indicate a general business practice

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1  and are either willful, wanton, and malicious or are in

  2  reckless disregard for the rights of any subscriber or

  3  enrollee.  Any person who pursues a claim under this

  4  subsection shall post, in advance, the costs of discovery.

  5  Such costs shall be awarded to the health maintenance

  6  organization if no punitive damages are awarded to the

  7  plaintiff.

  8         (5)  This section shall not be construed to authorize a

  9  class action suit against a health maintenance organization or

10  a civil action against the department, its employees, or the

11  Insurance Commissioner, or against the Agency for Health Care

12  Administration, its employees, or the director of the agency

13  or to create a cause of action when a health maintenance

14  organization or a prepaid health plan refuses to provide

15  service on the grounds that the charge for a service was

16  unreasonably high, unless otherwise provided in paragraph

17  (1)(b).

18         (6)(a)  The civil remedy specified in this section does

19  not preempt any other remedy or cause of action provided for

20  pursuant to any other law or pursuant to the common law of

21  this state.  Any person may obtain a judgment under either the

22  common law remedy of bad faith or the remedy provided in this

23  section, but is not entitled to a judgment under both

24  remedies.  This section does not create a common law cause of

25  action.  The damages recoverable under this section include

26  damages that are a reasonably foreseeable result of a

27  specified violation of this section by the health maintenance

28  organization and may include an award or judgment in an amount

29  that exceeds contract limits.

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






    Florida Senate - 1998                                   SB 490
    38-312-98                                          See HB 1547




  1         (b)  This section does not create a cause of action for

  2  medical malpractice.  Such action shall be subject to the

  3  provisions of chapter 766.

  4         (c)  This section shall not apply to the provision of

  5  medical care, treatment, or attendance pursuant to chapter

  6  440.

  7         Section 6.  The Legislature finds that the provisions

  8  of this bill will fulfill an important state interest.

  9         Section 7.  There are hereby appropriated three

10  positions and $112,000 from the Insurance Commissioner's

11  Regulatory Trust Fund to the Department of Insurance for the

12  purposes of carrying out the provisions of this act.

13         Section 8.  This act shall take effect July 1, 1998.

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15            *****************************************

16                       LEGISLATIVE SUMMARY

17
      Establishes exclusive liability for health maintenance
18    organizations.  Clarifies award of attorney's fees in
      civil actions against health maintenance organizations
19    and prepaid health plans.  Prohibits provider contracts
      from restricting a provider from communicating
20    information to a patient.  Specifies additional
      activities as unfair methods of competition and unfair or
21    deceptive acts or practices.  Provides procedures and
      requirements for bringing civil actions against health
22    maintenance organizations. See bill for details.

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