House Bill 1743

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    Florida House of Representatives - 1999                HB 1743

        By Representatives Wiles and Cosgrove






  1                      A bill to be entitled

  2         An act relating to insurance fraud; amending s.

  3         624.418, F.S.; providing an additional ground

  4         for suspension or revocation of an insurer's

  5         certificate of authority; amending s. 626.989,

  6         F.S.; including health maintenance

  7         organizations and contracts within the

  8         jurisdiction of the Division of Insurance Fraud

  9         of the Department of Insurance; authorizing the

10         department or division to investigate

11         violations of the insurance code; providing for

12         reports of insurance fraud to the division;

13         amending s. 626.9891, F.S.; requiring insurers

14         to provide for investigation of fraudulent

15         claims; requiring insurers to adopt an

16         anti-fraud plan; providing criteria and

17         procedures; providing for amending anti-fraud

18         plans; authorizing the department to adopt

19         rules; providing for submission of information

20         electronically; creating s. 626.9892, F.S.;

21         establishing the Anti-Fraud Reward Program in

22         the department; providing for awarding rewards

23         under certain circumstances; requiring the

24         department to implement and administer the

25         program; exempting certain department actions

26         from Florida Administrative Code requirements;

27         amending s. 627.411, F.S.; providing an

28         additional consideration for the department in

29         determining reasonableness of benefits to

30         premium; creating s. 641.3915, F.S.; requiring

31         certain health maintenance organizations to

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  1         comply with insurer anti-fraud requirements;

  2         amending s. 775.15, F.S.; providing a statute

  3         of limitations for certain insurance fraud

  4         violations; amending s. 817.234, F.S.;

  5         specifying a schedule of criminal penalties for

  6         committing insurance fraud; providing

  7         definitions; providing application to health

  8         maintenance organizations and contracts;

  9         creating s. 817.2341, F.S.; specifying certain

10         activities as crimes by or affecting persons

11         engaged in the business of insurance; providing

12         criminal penalties; creating s. 817.2342, F.S.;

13         authorizing certain persons to bring civil

14         actions for certain activities; providing civil

15         penalties; providing for injunctions for

16         certain violations; creating s. 817.2343, F.S.;

17         specifying activities which constitute

18         obstruction of justice; providing penalties;

19         creating s. 817.2344, F.S.; providing

20         definitions; providing construction; amending

21         s. 817.505, F.S.; revising a penalty for

22         patient brokering; reenacting s. 455.657(3),

23         F.S., relating to kickbacks, to incorporate

24         changes; reenacting ss. 464.018(1)(d),

25         772.102(1), and 895.02(1), F.S., relating to

26         fraudulent practices, to incorporate changes to

27         ch. 817, F.S.; providing an appropriation;

28         providing an effective date.

29

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

31

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  1         Section 1.  Subsection (1) of section 624.418, Florida

  2  Statutes, is amended to read:

  3         624.418  Suspension, revocation of certificate of

  4  authority for violations and special grounds.--

  5         (1)  The department shall suspend or revoke an

  6  insurer's certificate of authority if it finds that the

  7  insurer:

  8         (a)  Is in unsound financial condition.

  9         (b)  Is using such methods and practices in the conduct

10  of its business as to render its further transaction of

11  insurance in this state hazardous or injurious to its

12  policyholders or to the public.

13         (c)  Has failed to pay any final judgment rendered

14  against it in this state within 60 days after the judgment

15  became final.

16         (d)  Has failed to comply with the requirements of ss.

17  626.989(6) and 626.9891.

18         (e)(d)  No longer meets the requirements for the

19  authority originally granted.

20         Section 2.  Subsections (1), (2), and (6) of section

21  626.989, Florida Statutes, 1998 Supplement, are amended to

22  read:

23         626.989  Division of Insurance Fraud; definition;

24  investigative, subpoena powers; protection from civil

25  liability; reports to division; division investigator's power

26  to execute warrants and make arrests.--

27         (1)  For the purposes of this section, a person commits

28  a "fraudulent insurance act" if the person knowingly and with

29  intent to defraud presents, causes to be presented, or

30  prepares with knowledge or belief that it will be presented,

31  to or by an insurer, self-insurer, self-insurance fund,

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  1  servicing corporation, purported insurer, broker, or any agent

  2  thereof, any written statement as part of, or in support of,

  3  an application for the issuance of, or the rating of, any

  4  insurance policy, or a claim for payment or other benefit

  5  pursuant to any insurance policy, which the person knows to

  6  contain materially false information concerning any fact

  7  material thereto or if the person conceals, for the purpose of

  8  misleading another, information concerning any fact material

  9  thereto. For the purposes of this section, the term "insurer"

10  also includes any health maintenance organization, and the

11  term "insurance policy" also includes a health maintenance

12  organization subscriber contract.

13         (2)  If, by its own inquiries or as a result of

14  complaints, the department or its Division of Insurance Fraud

15  has reason to believe that a person has engaged in, or is

16  engaging in, a fraudulent insurance act, an act in violation

17  of the insurance code, an act or practice that violates s.

18  626.9541, or s. 817.234, s. 817.2341, s. 817.2343, or an act

19  or practice punishable under s. 624.15, or an act or practice

20  arising from such acts or practices, it may administer oaths

21  and affirmations, request the attendance of witnesses or

22  proffering of matter, and collect evidence. The department

23  shall not compel the attendance of any person or matter in any

24  such investigation except pursuant to subsection (4).

25         (6)  Any person, other than an insurer, agent, or other

26  person licensed under the code, or an employee thereof, having

27  knowledge or who believes that a fraudulent insurance act or

28  any other act or practice which, upon conviction, constitutes

29  a felony or a misdemeanor under the code, under s. 440.105, or

30  under s. 817.234, s. 817.2341, or s. 817.2342, is being or has

31  been committed may send to the Division of Insurance Fraud a

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  1  report or information pertinent to such knowledge or belief,

  2  including the loss claimed from such act or practice, and such

  3  additional information relative thereto as the department may

  4  request. Any professional practitioner licensed or regulated

  5  by the Department of Business and Professional Regulation,

  6  except as otherwise provided by law, any medical review

  7  committee as defined in s. 766.101, any private medical review

  8  committee, and any insurer, agent, or other person licensed

  9  under the code, or an employee thereof, having knowledge or

10  who believes that a fraudulent insurance act or any other act

11  or practice which, upon conviction, constitutes a felony or a

12  misdemeanor under the code, under s. 440.105, or under s.

13  817.234 or s. 817.2341, is being or has been committed shall

14  send to the Division of Insurance Fraud a report or

15  information pertinent to such knowledge or belief, including

16  the loss claimed from such act or practice, and such

17  additional information relative thereto as the department may

18  require. The Division of Insurance Fraud shall review such

19  information or reports and select such information or reports

20  as, in its judgment, may require further investigation. It

21  shall then cause an independent examination of the facts

22  surrounding such information or report to be made to determine

23  the extent, if any, to which a fraudulent insurance act or any

24  other act or practice which, upon conviction, constitutes a

25  felony or a misdemeanor under the code, under s. 440.105, or

26  under s. 817.234 or s. 817.2341, is being committed. The

27  Division of Insurance Fraud shall report any alleged

28  violations of law which its investigations disclose to the

29  appropriate licensing agency and state attorney or other

30  prosecuting agency having jurisdiction with respect to any

31  such violation, as provided in s. 624.310. If prosecution by

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  1  the state attorney or other prosecuting agency having

  2  jurisdiction with respect to such violation is not begun

  3  within 60 days of the division's report, the state attorney or

  4  other prosecuting agency having jurisdiction with respect to

  5  such violation shall inform the division of the reasons for

  6  the lack of prosecution.

  7         Section 3.  Section 626.9891, Florida Statutes, is

  8  amended to read:

  9         (Substantial rewording of section.  See

10         s. 626.9891, F.S., for present text.)

11         626.9891  Insurer anti-fraud plans and investigative

12  units.--

13         (1)  Each authorized insurer that had $10 million or

14  more in direct premiums written during the previous calendar

15  year shall:

16         (a)  Establish and maintain a unit or division within

17  the company to investigate possible fraudulent claims by

18  insureds or by persons making claims for services or repairs

19  against policies held by insureds; or

20         (b)  Contract with others to investigate possible

21  fraudulent claims for services or repairs against policies

22  held by insureds.

23

24  For purposes of this section, the term "unit or division"

25  includes the assignment of fraud investigation to employees

26  whose principal responsibilities are the investigation and

27  disposition of claims.  If an insurer creates a distinct unit

28  or division, hires additional employees, or contracts with

29  another entity to fulfill the requirements of this section,

30  the additional cost incurred must be included as an

31  administrative expense for ratemaking purposes.

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  1         (2)(a)  Each authorized insurer, writing direct

  2  insurance, shall adopt an anti-fraud plan, which shall be

  3  filed with the department prior to July 1, 2000.

  4         (b)  Any insurer that previously filed an anti-fraud

  5  plan with the department shall amend the plan to comply with

  6  the requirements of subsection (3) and shall file all plan

  7  amendments with the department prior to July 1, 2000.

  8         (c)  Any insurer that files an application for a

  9  certificate of authority with the department prior to July 1,

10  2000, shall, if the certificate is not issued as of that date,

11  comply with the requirements of this section within 90 days

12  after the issuance of a certificate of authority.

13         (d)  Any insurer that files an application for a

14  certificate of authority with the department on or after July

15  1, 2000, shall comply with the requirements of this section

16  when the application is filed.

17         (3)  Each insurer's anti-fraud plan shall include:

18         (a)  A description of the unit or division established,

19  or a copy of the contract and related documents, as required

20  under subsection (1), if applicable.

21         (b)  A description of the insurer's policies and

22  procedures that facilitate the detection and investigation of

23  possible fraudulent insurance acts, including specific policy

24  provisions and investigative procedures intended to combat

25  complex instances of fraud with respect to each of the

26  following coverages:  health, property, life, casualty, and

27  workers' compensation and employer's liability.

28         (c)  A description of the insurer's procedures for the

29  mandatory reporting of possible fraudulent insurance acts to

30  the department.

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  1         (d)  A description of the insurer's procedures for

  2  auditing workers' compensation insureds to verify covered

  3  employees and to ensure proper classification, loss experience

  4  reporting, and premium collection practices.

  5         (e)  A description of the insurer's anti-fraud

  6  education and training program, by line of business, for

  7  anti-fraud designated personnel.

  8         (f)  A description or chart that includes the

  9  organizational arrangement of the insurer's anti-fraud

10  personnel and the education, training, and claims adjusting,

11  law enforcement, or other investigative experience of such

12  personnel responsible for the investigation of possible

13  fraudulent insurance acts.

14         (4)  The department may recommend changes or amendments

15  to an insurer's anti-fraud plan which implement generally

16  recognized law enforcement or claims adjusting practices.

17         (5)  Every authorized insurer shall describe through

18  its anti-fraud plan required in subsection (3) the resources

19  allocated to identify and combat fraud.

20         (6)  An insurer that amends an anti-fraud plan shall

21  file the amended plan with the department within 30 days after

22  such amendment.

23         (7)  The department may adopt rules necessary to

24  implement the provisions of this section and may require that

25  material submitted be on a form prescribed by the department.

26  The department may require that material submitted be in an

27  electronic format compatible with the department's electronic

28  data system.

29         Section 4.  Section 626.9892, Florida Statutes, is

30  created to read:

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  1         626.9892  Anti-Fraud Reward Program; reporting of

  2  insurance fraud.--

  3         (1)  The Anti-Fraud Reward Program is hereby

  4  established within the department, to be funded from the

  5  Insurance Commissioner's Regulatory Trust Fund.

  6         (2)  The department may, at its discretion, pay rewards

  7  of up to $25,000 to persons responsible for providing

  8  information leading to the arrest and conviction of persons

  9  committing complex or organized crimes investigated by the

10  Division of Insurance Fraud, arising from violations of the

11  insurance code, s. 440.105, or s. 817.234.

12         (3)  Only a single reward amount may be awarded,

13  regardless of the number of persons arrested and convicted in

14  connection with the Division of Insurance Fraud's

15  investigation and regardless of how many persons submit claims

16  for the reward.  The reward may be distributed to more than

17  one person in amounts determined by the department.

18         (4)  The department shall establish procedures to

19  implement and administer the Anti-Fraud Reward Program.

20  Applications for rewards authorized by this section must be

21  made pursuant to the procedures established by the department.

22         (5)  All procedures, determinations, and other actions

23  of the department pursuant to this section are exempt from the

24  provisions of chapter 120.

25         Section 5.  Paragraph (e) is added to subsection (2) of

26  section 627.411, Florida Statutes, to read:

27         627.411  Grounds for disapproval.--

28         (2)  In determining whether the benefits are reasonable

29  in relation to the premium charged, the department, in

30  accordance with reasonable actuarial techniques, shall

31  consider:

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  1         (e)  All other relevant factors which impact upon the

  2  frequency or severity of claims or upon expenses.

  3         Section 6.  Section 641.3915, Florida Statutes, is

  4  created to read:

  5         641.3915  Health maintenance organization anti-fraud

  6  plans and investigative units.--Each authorized health

  7  maintenance organization and applicant for a certificate of

  8  authority shall comply with the provisions of s. 626.9891 as

  9  though such organization or applicant were an authorized

10  insurer.

11         Section 7.  Paragraph (h) of subsection (2) of section

12  775.15, Florida Statutes, 1998 Supplement, is amended to read:

13         775.15  Time limitations.--

14         (2)  Except as otherwise provided in this section,

15  prosecutions for other offenses are subject to the following

16  periods of limitation:

17         (h)  A prosecution for a felony violation of s.

18  440.105, s. 817.234, s. 817.2341, or s. 817.2343 must be

19  commenced within 5 years after the violation is committed.

20         Section 8.  Subsections (1), (2), (3), (4), and (10) of

21  section 817.234, Florida Statutes, 1998 Supplement, are

22  amended, and subsections (11) and (12) are added to said

23  section, to read:

24         817.234  False and fraudulent insurance claims.--

25         (1)(a)  Any person who, with the intent to injure,

26  defraud, or deceive any insurer:

27         1.  Presents or causes to be presented any written or

28  oral statement as part of, or in support of, a claim for

29  payment or other benefit pursuant to an insurance policy,

30  knowing that such statement contains any false, incomplete, or

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  1  misleading information concerning any fact or thing material

  2  to such claim;

  3         2.  Prepares or makes any written or oral statement

  4  that is intended to be presented to any insurer in connection

  5  with, or in support of, any claim for payment or other benefit

  6  pursuant to an insurance policy, knowing that such statement

  7  contains any false, incomplete, or misleading information

  8  concerning any fact or thing material to such claim; or

  9         3.  Knowingly presents, causes to be presented, or

10  prepares or makes with knowledge or belief that it will be

11  presented to any insurer, purported insurer, servicing

12  corporation, insurance broker, or insurance agent, or any

13  employee or agent thereof, any false, incomplete, or

14  misleading information or written or oral statement as part

15  of, or in support of, an application for the issuance of, or

16  the rating of, any insurance policy, or who conceals

17  information concerning any fact material to such application,

18

19  commits insurance fraud a felony of the third degree,

20  punishable as provided in subsection (11) s. 775.082, s.

21  775.083, or s. 775.084.

22         (b)  All claims and application forms shall contain a

23  statement that is approved by the Department of Insurance that

24  clearly states in substance the following: "Any person who

25  knowingly and with intent to injure, defraud, or deceive any

26  insurer files a statement of claim or an application

27  containing any false, incomplete, or misleading information is

28  guilty of a felony of the third degree."  This paragraph shall

29  not apply to reinsurance contracts, reinsurance agreements, or

30  reinsurance claims transactions. The changes in this paragraph

31  relating to applications shall take effect on March 1, 1996.

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  1         (2)  Any physician licensed under chapter 458,

  2  osteopathic physician licensed under chapter 459, chiropractic

  3  physician licensed under chapter 460, or other practitioner

  4  licensed under the laws of this state who knowingly and

  5  willfully assists, conspires with, or urges any insured party

  6  to fraudulently violate any of the provisions of this section

  7  or part XI of chapter 627, or any person who, due to such

  8  assistance, conspiracy, or urging by said physician,

  9  osteopathic physician, chiropractic physician, or

10  practitioner, knowingly and willfully benefits from the

11  proceeds derived from the use of such fraud, commits insurance

12  fraud is guilty of a felony of the third degree, punishable as

13  provided in subsection (11) s. 775.082, s. 775.083, or s.

14  775.084. In the event that a physician, osteopathic physician,

15  chiropractic physician, or practitioner is adjudicated guilty

16  of a violation of this section, the Board of Medicine as set

17  forth in chapter 458, the Board of Osteopathic Medicine as set

18  forth in chapter 459, the Board of Chiropractic Medicine as

19  set forth in chapter 460, or other appropriate licensing

20  authority shall hold an administrative hearing to consider the

21  imposition of administrative sanctions as provided by law

22  against said physician, osteopathic physician, chiropractic

23  physician, or practitioner.

24         (3)  Any attorney who knowingly and willfully assists,

25  conspires with, or urges any claimant to fraudulently violate

26  any of the provisions of this section or part XI of chapter

27  627, or any person who, due to such assistance, conspiracy, or

28  urging on such attorney's part, knowingly and willfully

29  benefits from the proceeds derived from the use of such fraud,

30  commits insurance fraud a felony of the third degree,

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  1  punishable as provided in subsection (11) s. 775.082, s.

  2  775.083, or s. 775.084.

  3         (4)  Any No person or governmental unit licensed under

  4  chapter 395 to maintain or operate a hospital, and any no

  5  administrator or employee of any such hospital, who shall

  6  knowingly and willfully allows allow the use of the facilities

  7  of said hospital by an insured party in a scheme or conspiracy

  8  to fraudulently violate any of the provisions of this section

  9  or part XI of chapter 627.  Any hospital administrator or

10  employee who violates this subsection commits insurance fraud

11  a felony of the third degree, punishable as provided in

12  subsection (11) s. 775.082, s. 775.083, or s. 775.084.  Any

13  adjudication of guilt for a violation of this subsection, or

14  the use of business practices demonstrating a pattern

15  indicating that the spirit of the law set forth in this

16  section or part XI of chapter 627 is not being followed, shall

17  be grounds for suspension or revocation of the license to

18  operate the hospital or the imposition of an administrative

19  penalty of up to $5,000 by the licensing agency, as set forth

20  in chapter 395.

21         (10)  As used in this section, the term "insurer" means

22  any insurer, health maintenance organization, self-insurer,

23  self-insurance fund, or other similar entity or person

24  regulated under chapter 440 or by the Department of Insurance

25  under the Florida Insurance Code, and the term "insurance

26  policy" includes a health maintenance organization subscriber

27  contract.

28         (11)  If the value of any property involved in a

29  violation of this section:

30

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  1         (a)  Is less than $20,000, the offender commits a

  2  felony of the third degree, punishable as provided in s.

  3  775.082, s. 775.083, or s. 775.084.

  4         (b)  Is $20,000 or more, but less than $100,000, the

  5  offender commits a felony of the second degree, punishable as

  6  provided in s. 775.082, s. 775.083, or s. 775.084.

  7         (c)  Is $100,000 or more, the offender commits a felony

  8  of the first degree, punishable as provided in s. 775.082, s.

  9  775.083, or s. 775.084.

10         (12)  As used in this section:

11         (a)  "Property" means property as defined in s.

12  812.012.

13         (b)  "Value" means value as defined in s. 812.012.

14         Section 9.  Section 817.2341, Florida Statutes, is

15  created to read:

16         817.2341  Crimes by or affecting persons engaged in the

17  business of insurance.--

18         (1)(a)  Any person engaged in the business of insurance

19  who knowingly, with the intent to deceive, makes any false

20  material statement or report or willfully and materially

21  overvalues any land, property, or security, in connection with

22  any financial reports or documents presented to any insurance

23  regulatory official or agency or an agent or examiner

24  appointed by such official or agency to examine the affairs of

25  such person, commits insurance fraud, as follows:

26         1.  As to any false material statement or report or

27  willful and material overvaluation of any land, property, or

28  security which is less than $20,000, a felony of the third

29  degree, punishable as provided in s. 775.082, s. 775.083, or

30  s. 775.084.

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  1         2.  As to any false material statement or report or

  2  willful and material overvaluation of any land, property, or

  3  security which is $20,000 or more, but less than $100,000, a

  4  felony of the second degree, punishable as provided in s.

  5  775.082, s. 775.083, or s. 775.084.

  6         3.  As to any false material statement or report or

  7  willful and material overvaluation of any land, property, or

  8  security which is $100,000 or more, a felony of the first

  9  degree, punishable as provided in s. 775.082, s. 775.083, or

10  s. 775.084.

11         (b)  If the actions described in paragraph (a)

12  jeopardized the safety and soundness of an insurer or was a

13  significant cause of such insurer being placed in

14  conservation, rehabilitation, or liquidation by an appropriate

15  court, the offense is a felony of the first degree, punishable

16  as provided in s. 775.082, s. 775.083, or s. 775.084.

17         (2)(a)  Whoever acts as or is an officer, director,

18  agent, or employee of any person engaged in the business of

19  insurance or is engaged in the business of insurance or is

20  involved, other than as an insured or beneficiary under a

21  policy of insurance, in a transaction relating to the conduct

22  of affairs of such a business and knowingly obtains or uses,

23  as defined in s. 812.012, or endeavors to obtain or use, the

24  property of another with intent to temporarily or permanently

25  deprive such person of any moneys, funds, premiums, credits,

26  or other property of such person, or appropriate such property

27  to his or her own use or to the use of any other person not

28  entitled to the use of such property, commits a fraudulent

29  insurance act which, if the value of the property obtained or

30  used:

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  1         1.  Is less than $20,000, is a felony of the third

  2  degree, punishable as provided in s. 775.082, s. 775.083, or

  3  s. 775.084;

  4         2.  Is $20,000 or more, but less than $100,000, is a

  5  felony of the second degree, punishable as provided in s.

  6  775.082, s. 775.083, or s. 775.084; or

  7         3.  Is $100,000 or more, is a felony of the first

  8  degree, punishable as provided in s. 775.082, s. 775.083, or

  9  s. 775.084.

10         (b)  If the actions or transactions described in

11  paragraph (a) jeopardized the safety and soundness of an

12  insurer or was a significant cause of such insurer being

13  placed in conservation, rehabilitation, or liquidation by an

14  appropriate court, the offense is a felony of the first

15  degree, punishable as provided in s. 775.082, s. 775.083, or

16  s. 775.084.

17         (3)(a)  Any person engaged in the business of insurance

18  or involved, other than as an insured or beneficiary under a

19  policy of insurance, in a transaction relating to the conduct

20  of affairs of such a business, including any officer,

21  employee, or agent of such person engaged in the business of

22  insurance, who knowingly makes any false entry of material

23  fact in any book, report, or statement of such person engaged

24  in the business of insurance with intent to deceive any

25  person, including, but not limited to, any insurance

26  regulatory official or agency or any agent or examiner

27  appointed by such official or agency to examine the affairs of

28  such person, about the financial condition or solvency of such

29  business commits:

30         1.  If the amount of any false entry of material fact

31  in any book, report, or statement is less than $20,000, a

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  1  felony of the third degree, punishable as provided in s.

  2  775.082, s. 775.083, or s. 775.084.

  3         2.  If the amount of any false entry of material fact

  4  in any book, report, or statement is $20,000 or more, but less

  5  than $100,000, a felony of the second degree, punishable as

  6  provided in s. 775.082, s. 775.083, or s. 775.084.

  7         3.  If the amount of any false entry of material fact

  8  in any book, report, or statement is $100,000 or more, a

  9  felony of the first degree, punishable as provided in s.

10  775.082, s. 775.083, or s. 775.084.

11         (b)  If any actions or transactions described in

12  paragraph (a) jeopardized the safety and soundness of an

13  insurer or was a significant cause of such insurer being

14  placed in conservation, rehabilitation, or liquidation by an

15  appropriate court, the offense is a felony of the first

16  degree, punishable as provided in s. 775.082, s. 775.083, or

17  s. 775.084.

18         (4)  Whoever, by threats of force or by any threatening

19  letter or communication, corruptly influences, obstructs, or

20  impedes or endeavors to corruptly influence, obstruct, or

21  impede the due and proper administration of the law, under

22  which any proceeding involving the business of insurance

23  before any insurance regulatory official or agency or any

24  agent or examiner appointed by such official or agency to

25  examine the affairs of a person engaged in the business of

26  insurance, shall be fined as provided in s. 817.2342 and

27  commits a felony of the second degree, punishable as provided

28  in s. 775.082, s. 775.083, or s. 775.084.

29         Section 10.  Section 817.2342, Florida Statutes, is

30  created to read:

31

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  1         817.2342  Civil penalties and injunctions for

  2  violations.--

  3         (1)  The Attorney General, a state attorney, or the

  4  Department of Insurance may bring a civil action in the

  5  appropriate circuit court against any person who engages in

  6  conduct constituting an offense under s. 817.2341 and, upon

  7  proof of such conduct by a preponderance of the evidence, such

  8  person shall be subject to a civil penalty of not more than

  9  $50,000 for each violation or the amount of compensation which

10  the person received or offered for the prohibited conduct,

11  whichever amount is greater.  If the offense has contributed

12  to the decision of a court of appropriate jurisdiction to

13  issue an order directing the conservation, rehabilitation, or

14  liquidation of an insurer, such penalty shall be remitted to

15  the appropriate regulatory official for the benefit of the

16  policyholders, claimants, and creditors of such insurer.  The

17  imposition of a civil penalty under this subsection does not

18  preclude any other criminal or civil statutory, common law, or

19  administrative remedy which is available by law to the state

20  or to any other person.

21         (2)  If the Attorney General, a state attorney, or the

22  Department of Insurance has reason to believe that a person is

23  engaged in conduct constituting an offense under s. 817.2341,

24  the Attorney General, a state attorney, or the Department of

25  Insurance may petition an appropriate circuit court for an

26  order prohibiting that person from engaging in such conduct.

27  The court may issue an order prohibiting that person from

28  engaging in such conduct if the court finds that the conduct

29  constitutes such an offense.  The filing of a petition under

30  this section does not preclude any other remedy which is

31  available by law to the state or to any other person.

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  1         Section 11.  Section 817.2343, Florida Statutes, is

  2  created to read:

  3         817.2343  Obstruction of justice.--Whoever acts as or

  4  is an officer, director, agent or employee of a person engaged

  5  in the business of insurance; or is engaged in the business of

  6  insurance or is involved, other than as an insured or

  7  beneficiary under a policy of insurance, in a transaction

  8  relating to the conduct of affairs of such a business; and

  9  with intent to obstruct a judicial proceeding or criminal

10  investigation, directly or indirectly notifies any other

11  person about the existence or contents of a subpoena for

12  records of that person engaged in such business, or

13  information that has been furnished to the Attorney General,

14  the statewide prosecutor, a state attorney, the Department of

15  Insurance, or a grand jury in response to that subpoena,

16  commits a felony of the second degree, punishable as provided

17  in s. 775.082, s. 775.083, or s. 775.084.

18         Section 12.  Section 817.2344, Florida Statutes, is

19  created to read:

20         817.2344 Definitions; construction.--

21         (1)  As used in ss. 817.2341-817.2344:

22         (a)  "Business of insurance" means:

23         1.  The writing of insurance, including, but not

24  limited to, activities regulated by the Florida Insurance

25  Code; or

26         2.  The reinsuring of risks by an insurer, including

27  all acts necessary or incidental to such writing or

28  reinsuring, including, but not limited to, those acts defined

29  in s. 624.10 and the activities of persons who act as, or are,

30  officers, directors, agents, or employees of insurers or who

31  are other persons authorized to act on behalf of such person.

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  1         (b)  "Insurer" means any person, the business activity

  2  of whom is the writing of insurance or the reinsuring of

  3  risks, including, but not limited to, any person as defined in

  4  ss. 1.01 and 624.04, and elsewhere in the insurance code,

  5  whether domestic, foreign, or alien as defined in s. 624.06

  6  and including any person who acts as, or is, an officer,

  7  director, agent, or employee of that business.

  8         (c)  "Obtains or uses" has the same meaning as provided

  9  in s. 812.012.

10         (d)  "Property" has the same meaning as provided in s.

11  812.012.

12         (e)  "Subpoena for records" means a subpoena by the

13  Attorney General, the statewide prosecutor, a state attorney,

14  the Department of Insurance, or a grand jury for records which

15  subpoena has been served relating to a violation of, or a

16  conspiracy to violate, s. 817.2341.

17         (f)  "Value" has the same meaning as provided in s.

18  812.012.

19         (2)  The provisions of ss. 817.2341, 817.2342,

20  817.2343, and this section shall not be construed to preclude

21  the applicability of any other provision of the criminal laws

22  of this state which presently applies or may in the future

23  apply to any act or transaction which violates such sections,

24  unless such provision is inconsistent with the terms of such

25  sections.

26         Section 13.  Subsection (4) of section 817.505, Florida

27  Statutes, 1998 Supplement, is amended to read:

28         817.505  Patient brokering prohibited; exceptions;

29  penalties.--

30         (4)  Any person, including an officer, partner, agent,

31  attorney, or other representative of a firm, joint venture,

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  1  partnership, business trust, syndicate, corporation, or other

  2  business entity, who violates any provision of this section

  3  commits:

  4         (a)  A misdemeanor of the first degree for a first

  5  violation, punishable as provided in s. 775.082 or by a fine

  6  not to exceed $5,000, or both.

  7         (b)  a felony of the third degree for a second or

  8  subsequent violation, punishable as provided in s. 775.082, s.

  9  775.083, or s. 775.084 or by a fine not to exceed $10,000, or

10  both.

11         Section 14.  For the purpose of incorporating the

12  amendment to subsection (4) of section 817.505, Florida

13  Statutes, 1998 Supplement, in a reference thereto, subsection

14  (3) of section 455.657, Florida Statutes, is reenacted to

15  read:

16         455.657  Kickbacks prohibited.--

17         (3)  Violations of this section shall be considered

18  patient brokering and shall be punishable as provided in s.

19  817.505.

20         Section 15.  For the purpose of incorporating the

21  creation of ss. 817.2341 and 817.2342, Florida Statutes, into

22  chapter 817, Florida Statutes, and references thereto,

23  paragraph (d) of subsection (1) of section 464.018, Florida

24  Statutes, 1998 Supplement, subsection (1) of section 772.102,

25  Florida Statutes, and subsection (1) of section 895.02,

26  Florida Statutes, are reenacted to read:

27         464.018  Disciplinary actions.--

28         (1)  The following acts shall be grounds for

29  disciplinary action set forth in this section:

30         (d)  Being found guilty, regardless of adjudication, of

31  any of the following offenses:

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  1         1.  A forcible felony as defined in chapter 776.

  2         2.  A violation of chapter 812, relating to theft,

  3  robbery, and related crimes.

  4         3.  A violation of chapter 817, relating to fraudulent

  5  practices.

  6         4.  A violation of chapter 800, relating to lewdness

  7  and indecent exposure.

  8         5.  A violation of chapter 784, relating to assault,

  9  battery, and culpable negligence.

10         6.  A violation of chapter 827, relating to child

11  abuse.

12         7.  A violation of chapter 415, relating to protection

13  from abuse, neglect, and exploitation.

14         8.  A violation of chapter 39, relating to child abuse,

15  abandonment, and neglect.

16         772.102  Definitions.--As used in this chapter, the

17  term:

18         (1)  "Criminal activity" means to commit, to attempt to

19  commit, to conspire to commit, or to solicit, coerce, or

20  intimidate another person to commit:

21         (a)  Any crime which is chargeable by indictment or

22  information under the following provisions:

23         1.  Section 210.18, relating to evasion of payment of

24  cigarette taxes.

25         2.  Section 414.39, relating to public assistance

26  fraud.

27         3.  Section 440.105 or s. 440.106, relating to workers'

28  compensation.

29         4.  Part IV of chapter 501, relating to telemarketing.

30         5.  Chapter 517, relating to securities transactions.

31

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  1         6.  Section 550.235, s. 550.3551, or s. 550.3605,

  2  relating to dogracing and horseracing.

  3         7.  Chapter 550, relating to jai alai frontons.

  4         8.  Chapter 552, relating to the manufacture,

  5  distribution, and use of explosives.

  6         9.  Chapter 562, relating to beverage law enforcement.

  7         10.  Section 624.401, relating to transacting insurance

  8  without a certificate of authority, s. 624.437(4)(c)1.,

  9  relating to operating an unauthorized multiple-employer

10  welfare arrangement, or s. 626.902(1)(b), relating to

11  representing or aiding an unauthorized insurer.

12         11.  Chapter 687, relating to interest and usurious

13  practices.

14         12.  Section 721.08, s. 721.09, or s. 721.13, relating

15  to real estate timeshare plans.

16         13.  Chapter 782, relating to homicide.

17         14.  Chapter 784, relating to assault and battery.

18         15.  Chapter 787, relating to kidnapping.

19         16.  Chapter 790, relating to weapons and firearms.

20         17.  Section 796.01, s. 796.03, s. 796.04, s. 796.05,

21  or s. 796.07, relating to prostitution.

22         18.  Chapter 806, relating to arson.

23         19.  Section 810.02(2)(c), relating to specified

24  burglary of a dwelling or structure.

25         20.  Chapter 812, relating to theft, robbery, and

26  related crimes.

27         21.  Chapter 815, relating to computer-related crimes.

28         22.  Chapter 817, relating to fraudulent practices,

29  false pretenses, fraud generally, and credit card crimes.

30         23.  Section 827.071, relating to commercial sexual

31  exploitation of children.

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  1         24.  Chapter 831, relating to forgery and

  2  counterfeiting.

  3         25.  Chapter 832, relating to issuance of worthless

  4  checks and drafts.

  5         26.  Section 836.05, relating to extortion.

  6         27.  Chapter 837, relating to perjury.

  7         28.  Chapter 838, relating to bribery and misuse of

  8  public office.

  9         29.  Chapter 843, relating to obstruction of justice.

10         30.  Section 847.011, s. 847.012, s. 847.013, s.

11  847.06, or s. 847.07, relating to obscene literature and

12  profanity.

13         31.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

14  or s. 849.25, relating to gambling.

15         32.  Chapter 893, relating to drug abuse prevention and

16  control.

17         33.  Section 914.22 or s. 914.23, relating to

18  witnesses, victims, or informants.

19         34.  Section 918.12 or s. 918.13, relating to tampering

20  with jurors and evidence.

21         (b)  Any conduct which is subject to indictment or

22  information as a criminal offense and listed in 18 U.S.C. s.

23  1961(1) (A), (B), (C), or (D).

24         895.02  Definitions.--As used in ss. 895.01-895.08, the

25  term:

26         (1)  "Racketeering activity" means to commit, to

27  attempt to commit, to conspire to commit, or to solicit,

28  coerce, or intimidate another person to commit:

29         (a)  Any crime which is chargeable by indictment or

30  information under the following provisions of the Florida

31  Statutes:

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  1         1.  Section 210.18, relating to evasion of payment of

  2  cigarette taxes.

  3         2.  Section 403.727(3)(b), relating to environmental

  4  control.

  5         3.  Section 414.39, relating to public assistance

  6  fraud.

  7         4.  Section 409.920, relating to Medicaid provider

  8  fraud.

  9         5.  Section 440.105 or s. 440.106, relating to workers'

10  compensation.

11         6.  Part IV of chapter 501, relating to telemarketing.

12         7.  Chapter 517, relating to sale of securities and

13  investor protection.

14         8.  Section 550.235, s. 550.3551, or s. 550.3605,

15  relating to dogracing and horseracing.

16         9.  Chapter 550, relating to jai alai frontons.

17         10.  Chapter 552, relating to the manufacture,

18  distribution, and use of explosives.

19         11.  Chapter 562, relating to beverage law enforcement.

20         12.  Section 624.401, relating to transacting insurance

21  without a certificate of authority, s. 624.437(4)(c)1.,

22  relating to operating an unauthorized multiple-employer

23  welfare arrangement, or s. 626.902(1)(b), relating to

24  representing or aiding an unauthorized insurer.

25         13.  Section 655.50, relating to reports of currency

26  transactions, when such violation is punishable as a felony.

27         14.  Chapter 687, relating to interest and usurious

28  practices.

29         15.  Section 721.08, s. 721.09, or s. 721.13, relating

30  to real estate timeshare plans.

31         16.  Chapter 782, relating to homicide.

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  1         17.  Chapter 784, relating to assault and battery.

  2         18.  Chapter 787, relating to kidnapping.

  3         19.  Chapter 790, relating to weapons and firearms.

  4         20.  Section 796.03, s. 796.04, s.  796.05, or s.

  5  796.07, relating to prostitution.

  6         21.  Chapter 806, relating to arson.

  7         22.  Section 810.02(2)(c), relating to specified

  8  burglary of a dwelling or structure.

  9         23.  Chapter 812, relating to theft, robbery, and

10  related crimes.

11         24.  Chapter 815, relating to computer-related crimes.

12         25.  Chapter 817, relating to fraudulent practices,

13  false pretenses, fraud generally, and credit card crimes.

14         26.  Chapter 825, relating to abuse, neglect, or

15  exploitation of an elderly person or disabled adult.

16         27.  Section 827.071, relating to commercial sexual

17  exploitation of children.

18         28.  Chapter 831, relating to forgery and

19  counterfeiting.

20         29.  Chapter 832, relating to issuance of worthless

21  checks and drafts.

22         30.  Section 836.05, relating to extortion.

23         31.  Chapter 837, relating to perjury.

24         32.  Chapter 838, relating to bribery and misuse of

25  public office.

26         33.  Chapter 843, relating to obstruction of justice.

27         34.  Section 847.011, s. 847.012, s. 847.013, s.

28  847.06, or s. 847.07, relating to obscene literature and

29  profanity.

30         35.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

31  or s. 849.25, relating to gambling.

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  1         36.  Chapter 874, relating to criminal street gangs.

  2         37.  Chapter 893, relating to drug abuse prevention and

  3  control.

  4         38.  Chapter 896, relating to offenses related to

  5  financial transactions.

  6         39.  Sections 914.22 and 914.23, relating to tampering

  7  with a witness, victim, or informant, and retaliation against

  8  a witness, victim, or informant.

  9         40.  Sections 918.12 and 918.13, relating to tampering

10  with jurors and evidence.

11         (b)  Any conduct defined as "racketeering activity"

12  under 18 U.S.C. s. 1961(1).

13         Section 16.  The sum of $250,000 is hereby appropriated

14  from the Insurance Commissioner's Regulatory Trust Fund in a

15  nonoperating category for state fiscal year 1999-2000 for the

16  purpose of implementing the reward program under s. 626.9892,

17  Florida Statutes, as created by this act.

18         Section 17.  This act shall take effect July 1, 1999.

19

20            *****************************************

21                          HOUSE SUMMARY

22
      Requires insurers and health maintenance organizations
23    provide for investigating insurance fraud and to submit
      an anti-fraud plan to the division. Establishes penalty
24    levels and prescribes time limitations for prosecution of
      prohibited insurance fraud. Establishes the Anti-Fraud
25    Reward Program in the Department of Insurance and
      provides for awarding rewards. Specifies activities as
26    crimes by or affecting persons engaged in the business of
      insurance and provides criminal and civil penalties.
27    Specifies activities which constitute obstruction of
      justice.
28

29

30

31

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