Senate Bill sb0700

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    Florida Senate - 2001                                   SB 700

    By Senator Campbell





    33-451A-01

  1                      A bill to be entitled

  2         An act relating to health care; requiring

  3         health maintenance organizations to provide for

  4         the resolution of grievances brought by

  5         subscribers; specifying the services to be

  6         included in a grievance system; requiring

  7         health maintenance organizations to establish

  8         an informal appeal process; providing for a

  9         formal internal appeal process; providing for

10         an external appeal when a subscriber is

11         dissatisfied with the results of a formal

12         appeal; providing for the grievance to be

13         reviewed by an independent utilization review

14         organization; providing for a party to appeal a

15         decision by the utilization review organization

16         to the Agency for Health Care Administration;

17         requiring that the Agency for Health Care

18         Administration enter into contracts with

19         utilization review organizations for the

20         purpose of reviewing appeals; authorizing the

21         agency to adopt rules; providing for the right

22         of a subscriber to maintain an action against a

23         health maintenance organization; providing

24         definitions; providing that a health

25         maintenance organization has the duty to

26         exercise ordinary care when making treatment

27         decisions; providing that a health maintenance

28         organization is liable for damages for harm

29         caused by failure to exercise ordinary care;

30         providing certain limitations on actions;

31         providing for a claim of liability to be

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  1         reviewed by an independent review organization;

  2         providing for the statute of limitations to be

  3         tolled under certain circumstances; requiring a

  4         health maintenance organization to disclose

  5         certain information to subscribers and

  6         prospective subscribers; specifying additional

  7         information that must be provided upon the

  8         request of a subscriber or prospective

  9         subscriber; requiring that a health maintenance

10         organization provide notice if a provider is

11         unavailable to render services; providing

12         requirements for the notice; requiring health

13         maintenance organizations to make certain

14         allowances in developing provider profiles and

15         measuring the performance of health care

16         providers; providing for such information to be

17         made available to the Department of Insurance,

18         the Agency for Health Care Administration, and

19         subscribers; prohibiting a health maintenance

20         organization from taking retaliatory action

21         against an employee for certain actions or

22         disclosures concerning improper patient care;

23         requiring that a health maintenance

24         organization refer a subscriber to an outside

25         provider in cases in which there is not a

26         provider within the organization's network to

27         provide a covered benefit; specifying

28         circumstances under which a health maintenance

29         organization must refer a subscriber to a

30         specialist; limiting the cost of services

31         provided by a nonparticipating provider;

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  1         requiring that a health maintenance

  2         organization provide a procedure to allow a

  3         subscriber to obtain drugs that are not

  4         included in the organization's drug formulary;

  5         prohibiting a health maintenance organization

  6         from arbitrarily interfering with certain

  7         decisions of a health care provider;

  8         prohibiting a health maintenance organization

  9         from discriminating against a subscriber based

10         on race, national origin, and other factors;

11         requiring health maintenance organizations to

12         establish a policy governing the termination of

13         health care providers; providing requirements

14         for the policy; authorizing the Insurance

15         Commissioner to suspend or revoke a certificate

16         of authority upon finding certain violations by

17         a health maintenance organization; providing

18         for civil penalties; repealing s. 641.513,

19         F.S., relating to requirements for providing

20         emergency services and care; prohibiting

21         coercion of provider selection; amending s.

22         627.419, F.S.; providing free choice to

23         subscribers to certain health care plans, and

24         to persons covered under certain health

25         insurance policies or contracts, in the

26         selection of specified health care providers;

27         specifying conditions under which any health

28         care provider must be permitted to provide

29         services under a health care plan or health

30         insurance policy or contract; providing

31         limitations; providing for civil penalties;

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  1         providing application; amending s. 641.28,

  2         F.S.; limiting the parties that may recover

  3         attorney's fees and court costs in an action to

  4         enforce the terms of a health maintenance

  5         contract; providing an effective date.

  6

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

  8

  9         Section 1.  Managed care bill of rights.--

10         (1)  GENERAL PROVISIONS.--

11         (a)  Each health maintenance organization shall

12  establish a system to provide for the presentation and

13  resolution of grievances brought by a subscriber or brought by

14  a representative or provider acting on behalf of a subscriber

15  and with the subscriber's consent. Such grievance may include,

16  but need not be limited to, complaints regarding referral to a

17  specialist, quality of care, choice and accessibility of

18  providers, network adequacy, termination of coverage, denial

19  of approval for coverage, or other limitations in the receipt

20  of health care services. Each system for resolving grievances

21  must be in writing, given to each subscriber and each

22  provider, and incorporated into the health maintenance

23  contract. Each grievance system must include:

24         1.  The provision of the telephone numbers and business

25  addresses of each employee of the health maintenance

26  organization who is responsible for grievance resolution.

27         2.  A system to record and document the status of all

28  grievances, which must be maintained for at least 3 years.

29         3.  The services of a representative to assist

30  subscribers with grievance procedures upon request.

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  1         4.  Establishment of a specified response time for the

  2  resolution of grievances, which may not exceed the time limits

  3  set forth in subsection (2) or subsection (3).

  4         5.  A detailed description of how grievances are

  5  processed and resolved.

  6         6.  A requirement that the determination must set forth

  7  the basis for any denial and include specific information

  8  concerning appeal rights, procedures for an independent

  9  external appeal, to whom and where to address any appeal, and

10  the applicable deadlines for appeal.

11         (b)  If a health maintenance organization fails to

12  comply with any of the deadlines at any stage of the

13  organization's internal review process, or waives the

14  completion of the process, the subscriber, or the subscriber's

15  representative or provider, is relieved of the obligation to

16  complete the process and may proceed directly to the external

17  appeals process set forth in subsection (4).

18         (c)  All time limits set forth in subsections (2), (3),

19  and (4) must include an additional 3 days for mailing

20  following the date of the postmark. A decision with respect to

21  urgent or emergency care must also be communicated by

22  telephone.

23         (2)  INFORMAL APPEAL PROCESS.--

24         (a)  Each health maintenance organization must

25  establish and maintain an informal internal appeal process

26  whereby any subscriber, or representative or provider acting

27  on behalf of a subscriber and with the subscriber's consent,

28  who has a grievance concerning any of the actions by the

29  health maintenance organization as described in paragraph

30  (1)(a) or related thereto, shall be given the opportunity to

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  1  discuss and appeal that determination to the medical director

  2  or the physician designee who rendered the determination.

  3         (b)  An informal appeal under this subsection must be

  4  concluded as soon as possible in accordance with the medical

  5  exigencies of the case. If the appeal is from a determination

  6  regarding urgent or emergency care, the appeal must be

  7  resolved within 72 hours after the initial contact by the

  8  subscriber or the subscriber's representative or provider. In

  9  the case of all other appeals, the appeal must be resolved

10  within 5 business days after the initial contact by the

11  subscriber or the subscriber's representative or provider. If

12  an appeal under this subsection is not resolved to the

13  satisfaction of the subscriber, the health maintenance

14  organization shall provide to the subscriber, the subscriber's

15  provider, and the subscriber's representative, if applicable,

16  a written explanation of the basis for the decision on the

17  grievance and notification of the right to proceed to a formal

18  appeals process under subsection (3). The notice must be

19  postmarked within the applicable time limits prescribed in

20  this paragraph.

21         (3)  FORMAL INTERNAL APPEAL PROCESS.--

22         (a)  Each health maintenance organization shall

23  establish and maintain a formal internal appeal process

24  whereby any subscriber, or representative or provider acting

25  on behalf of a subscriber and with the subscriber's consent,

26  who is dissatisfied with the results of the informal appeal

27  under subsection (2) may pursue the subscriber's appeal before

28  a panel of physicians selected by the health maintenance

29  organization who have not been involved in the determination

30  being appealed.

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  1         (b)  The members of the formal appeal panel must

  2  include consultant practitioners who are trained in or who

  3  practice in the same specialty that would typically manage the

  4  case being appealed or must include other licensed health care

  5  professionals who are mutually agreed upon by the parties. The

  6  consulting practitioners or professionals may not have been

  7  involved in the determination being appealed. The consulting

  8  practitioners or professionals must participate in the panel's

  9  review of the case at the request of the subscriber or the

10  subscriber's representative or provider.

11         (c)  Within 10 business days after an appeal is filed

12  under this subsection, the health maintenance organization

13  must acknowledge in writing to the subscriber, or the

14  subscriber's representative or provider, receipt of the

15  appeal.

16         (d)  A formal appeal under this subsection must be

17  concluded as soon as possible. If the appeal is from a

18  determination regarding urgent or emergency care, the appeal

19  must be resolved within 72 hours after the filing of the

20  formal appeal. In the case of all other appeals, the appeal

21  must be resolved within 5 business days after the filing of

22  the formal appeal.

23         (e)  The health maintenance organization may extend the

24  review for up to an additional 20 days if it can demonstrate

25  reasonable cause for the delay which is beyond its control and

26  if the health maintenance organization provides a written

27  progress report and explanation for the delay to the Agency

28  for Health Care Administration. The health maintenance

29  organization must notify the subscriber, and where applicable

30  the subscriber's representative or provider, of the delay

31  prior to the end of the time limitation in paragraph (d).

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  1         (f)  If a formal appeal under this subsection is

  2  denied, the health maintenance organization must notify the

  3  subscriber, and where applicable the subscriber's avocate or

  4  provider, of the denial. The notice must be in writing, set

  5  forth the basis for the denial, and include notice of the

  6  subscriber's right to proceed to an independent external

  7  appeal under subsection (4). The notice must include specific

  8  instruction on how and where the subscriber may file for an

  9  external appeal of the denial.

10         (4)  EXTERNAL APPEAL PROCESS.--

11         (a)  If a subscriber, or a subscriber's representative

12  or provider acting on behalf of a subscriber and with the

13  subscriber's consent, is dissatisfied with the results of a

14  formal internal appeal under subsection (3), the subscriber,

15  or the subscriber's representative or provider, may pursue an

16  appeal to the Agency for Health Care Administration for

17  referral to an independent utilization review organization.

18         (b)  To initiate an external appeal, the subscriber, or

19  the subscriber's representative or provider, must file a

20  written request with the Agency for Health Care

21  Administration. The appeal must be filed within 30 business

22  days after receipt of the written decision of the formal

23  internal appeal under subsection (3). The agency may extend

24  for an additional 30 days the time for filing the appeal upon

25  a showing of good cause. A delay under this paragraph does not

26  affect a subscriber's right to proceed under any other

27  applicable state or federal law.

28         (c)  Within 5 days after receiving a request for an

29  external appeal, the Agency for Health Care Administration

30  shall determine whether the procedural requirements described

31  in this section have been satisfied. If those requirements

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  1  have been satisfied, the agency shall assign the appeal to an

  2  independent utilization review organization for review.

  3         (d)  The independent utilization review organization

  4  shall assign the case for a full review within 5 days after

  5  receiving an appeal under paragraph (c) and shall determine

  6  whether, as a result of the health maintenance organization's

  7  determination, the subscriber was deprived of any of the

  8  rights described in paragraph (1)(a). The independent

  9  utilization review organization shall consider all pertinent

10  medical records; reports submitted by the consulting physician

11  and other documents submitted by the parties; any applicable

12  and generally accepted practice guidelines developed by the

13  Federal Government, national or professional medical

14  societies, boards, or associations; and any applicable

15  clinical protocols or practice guidelines developed by the

16  health maintenance organization. The independent utilization

17  review organization shall refer all cases for review to a

18  consultant physician or other health care professional in the

19  same speciality or area of practice who manages the type of

20  treatment that is the subject of the appeal. All final

21  recommendations of the independent utilization review

22  organization are subject to approval by the medical director

23  of the independent utilization review organization or by an

24  alternate physician if the medical director has a conflict of

25  interest.

26         (e)  The independent utilization review organization

27  shall issue its recommended decision to the Agency for Health

28  Care Administration and provide copies to the subscriber, the

29  subscriber's representative or provider if applicable, and the

30  health maintenance organization. The decision must be issued

31  as soon as possible in accordance with the medical exigencies

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  1  of the case which, except as provided in this paragraph, may

  2  not exceed 30 business days after receipt of all documentation

  3  necessary to complete the review. However, the independent

  4  utilization review organization may extend its review for a

  5  reasonable period due to circumstances beyond the control of

  6  all parties to the action, and must advise the subscriber, the

  7  subscriber's representative or provider if applicable, the

  8  health maintenance organization, and the Agency for Health

  9  Care Administration in a formal statement explaining the

10  delay. If any party fails to provide documentation sought by

11  the independent utilization review organization which is

12  within that party's control, the party waives its position

13  with respect to the review.

14         (f)  If the independent utilization review organization

15  determines that the subscriber was deprived of medically

16  necessary covered services, the independent utilization review

17  organization shall, in its recommended decision, advise all

18  parties of the appropriate covered health care services the

19  subscriber is entitled to receive. In all cases, the

20  independent utilization review organization shall advise all

21  parties of the basis of its recommended decision.

22         (g)  Any party may appeal the recommended decision to

23  the Agency for Health Care Administration, with a copy of the

24  appeal to all other parties, within 20 days after the date the

25  decision is issued. If a decision is appealed, any other party

26  may file with the Agency for Health Care Administration its

27  position on the issues raised in the appeal, with copies to

28  all other parties, within 20 days after receipt of the initial

29  appeal.

30         (h)  The Agency for Health Care Administration shall

31  issue its decision within 30 days after completion of the

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  1  record in the case. The decision must include an explanation

  2  of the basis supporting the decision. The final decision of

  3  the Agency for Health Care Administration is binding on the

  4  health maintenance organization.

  5         (i)  The Agency for Health Care Administration shall

  6  issue a report 30 days after the end of each calendar quarter

  7  which summarizes all appeals and final decisions. The report

  8  must maintain the confidentiality of patient information and

  9  shall be provided to the Governor, the Insurance Commissioner,

10  and the appropriate substantive committees of the Senate and

11  the House of Representatives. The quarterly reports shall be

12  available to the public.

13         (5)  INDEPENDENT UTILIZATION REVIEW ORGANIZATIONS.--

14         (a)  The Agency for Health Care Administration shall

15  enter into contracts with as many independent utilization

16  review organizations throughout the state as the agency deems

17  necessary to conduct external appeals under this section. Each

18  independent utilization review organization must be

19  independent of any insurance carrier, and a physician may not

20  be assigned to hear any appeal that would constitute a

21  conflict of interest. As part of its contract, each

22  independent utilization review organization shall submit to

23  the Agency for Health Care Administration a list of the

24  organization's physician reviewers and the health maintenance

25  organizations, health insurers, health providers, and other

26  health care providers with whom the organization has a

27  contractual or other business arrangement. Each organization

28  shall update the list of its business relationships as

29  changes, additions, or deletions occur.

30         (b)  Upon any request for an external appeal, the

31  Agency for Health Care Administration shall assign the appeal

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  1  to an approved independent utilization review organization on

  2  a random basis. The agency may deny an assignment if, in its

  3  determination, the assignment would result in a conflict of

  4  interest or would otherwise create the appearance of

  5  impropriety.

  6         (c)  The Agency for Health Care Administration shall

  7  adopt rules to administer this section.

  8         Section 2.  Right of subscribers to maintain an action

  9  against a health maintenance organization.--

10         (1)  DEFINITIONS.--As used in this section, the term:

11         (a)  "Appropriate and medically necessary" means the

12  standard for health care services as determined by physicians

13  and health care providers in accordance with the prevailing

14  practices and standards of the medical profession and

15  community.

16         (b)  "Health care treatment decision" means a

17  determination made when medical services are actually provided

18  by the health care plan and a decision that affects the

19  quality of the diagnosis, care, or treatment provided to the

20  plans subscribers.

21         (c)  "Ordinary care" means, in the case of a health

22  maintenance organization, that degree of care that a health

23  maintenance organization of ordinary prudence would use under

24  the same or similar circumstances. In the case of a person who

25  is an employee, agent, or representative of a health

26  maintenance organization, the term "ordinary care" means that

27  degree of care that a person of ordinary prudence in the same

28  profession, specialty, or area of practice would use in the

29  same or similar circumstances.

30         (2)  APPLICATION.--

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  1         (a)  A health maintenance organization has the duty to

  2  exercise ordinary care when making health care treatment

  3  decisions and is liable for damages for harm to a subscriber

  4  which is proximately caused by its failure to exercise such

  5  ordinary care.

  6         (b)  A health maintenance organization is also liable

  7  for damages for harm to a subscriber which are proximately

  8  caused by the health care treatment decisions made by its:

  9         1.  Employees;

10         2.  Agents; or

11         3.  Representatives,

12

13  who act on behalf of the health maintenance organization and

14  over whom it has the right to exercise influence or control,

15  whose actions or failure to act result in the failure to

16  exercise ordinary care.

17         (c)  It is a defense to any action asserted against a

18  health maintenance organization that:

19         1.  Neither the health maintenance organization or any

20  employee, agent, or representative for whose conduct such

21  health maintenance organization is liable under paragraph (b)

22  controlled, influenced, or participated in the health care

23  treatment decision; and

24         2.  The health maintenance organization did not deny or

25  delay payment for any treatment prescribed or recommended by a

26  health care provider to the subscriber.

27         (d)  The standards in paragraphs (a) and (b) do not

28  create an obligation on the part of the health maintenance

29  organization to provide treatment to a subscriber which is not

30  covered by the health care plan.

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  1         (e)  This section does not create any liability on the

  2  part of an employer, an employer group-purchasing

  3  organization, or a pharmacy licensed by the Board of Pharmacy

  4  which purchases coverage or assumes risk on behalf of its

  5  employees.

  6         (f)  A health maintenance organization may not remove a

  7  physician or health care provider from its plan or refuse to

  8  renew the physician or health care provider with its plan for

  9  advocating on behalf of a subscriber for appropriate and

10  medically necessary health care for the subscriber.

11         (g)  A health maintenance organization may not enter

12  into a contract with a physician, hospital, or other health

13  care provider or pharmaceutical company which includes an

14  indemnification or hold-harmless clause for the acts or

15  conduct of the health maintenance organization. Any such

16  indemnification or hold-harmless clause in an existing

17  contract is void.

18         (h)  Any law of this state prohibiting a health

19  maintenance organization from practicing medicine or being

20  licensed to practice medicine may not be asserted as a defense

21  by a health maintenance organization in an action brought

22  against it pursuant to this section or any other law.

23         (i)  In an action against a health maintenance

24  organization, a finding that a physician or other health care

25  provider is an employee, agent, or representative of such

26  health maintenance organization may not be based solely on

27  proof that such person's name appears in a listing of approved

28  physicians or health care providers made available to

29  subscribers under a health care plan.

30         (j)  This section does not apply to workers'

31  compensation insurance coverage.

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  1         (3)  LIMITATIONS ON ACTIONS.--

  2         (a)  A person may not maintain an action under this

  3  section against a health maintenance organization that is

  4  required to comply with the appeal process provided under

  5  section 1 of this act unless the subscriber or the

  6  subscriber's representative:

  7         1.  Has exhausted the appeals and review applicable

  8  under the appeal process; or

  9         2.  Before instituting the action:

10         a.  Gives written notice of the claim as provided by

11  paragraph (b); and

12         b.  Agrees to submit the claim to a review by an

13  independent review organization as required by paragraph (c).

14         (b)  Notice of intent to maintain an action must be

15  delivered or mailed to the health maintenance organization

16  against whom the action is made not later than the 30th day

17  before the date the claim is filed.

18         (c)  The subscriber, or the subscriber's

19  representative, must submit the claim to a review by an

20  independent review organization if the health maintenance

21  organization against whom the claim is made requests the

22  review not later than the 14th day after the date notice under

23  paragraph (b) is received by the health maintenance

24  organization. If the health maintenance organization does not

25  request the review within the period specified by this

26  paragraph, the subscriber, or the subscriber's representative,

27  is not required to submit the claim to independent review

28  before maintaining the action.

29         (d)  Subject to paragraph (e), if the subscriber has

30  not complied with paragraph (a), an action under this section

31  may not be dismissed by the court, but the court may, in its

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  1  discretion, order the parties to submit to an independent

  2  review or mediation or other nonbinding alternative dispute

  3  resolution and may abate the action for a period not to exceed

  4  30 days for such purposes. Such orders of the court are the

  5  sole remedies available to a party complaining of a

  6  subscriber's failure to comply with paragraph (a).

  7         (e)  The subscriber is not required to comply with

  8  paragraph (c) and an order of abatement or other order

  9  pursuant to paragraph (d) for failure to comply may not be

10  imposed if the subscriber has filed a pleading alleging in

11  substance that:

12         1.  Harm to the subscriber has already occurred because

13  of the conduct of the health maintenance organization or

14  because of an act or omission of an employee, agent, or

15  representative of such organization for whose conduct it is

16  liable; and

17         2.  The review would not be beneficial to the

18  subscriber.

19         (f)  If the court, upon motion by the defendant health

20  maintenance organization, finds after hearing that such

21  pleading was not made in good faith, the court may enter an

22  order pursuant to paragraph (d).

23         (g)  If the subscriber, or the subscriber's

24  representative, seeks to exhaust the appeals and review or

25  provides notice, as required by paragraph (a), before the

26  statute of limitations applicable to a claim against a health

27  maintenance organization has expired, the limitations period

28  is tolled until the later of:

29         1.  The 30th day after the date the subscriber, or the

30  subscriber's representative, has exhausted the process for

31  appeals and review applicable under the appeals process; or

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  1         2.  The 40th day after the date the subscriber, or the

  2  subscriber's representative, gives notice under paragraph (b).

  3         (h)  This section does not prohibit a subscriber from

  4  pursuing other appropriate remedies, including injunctive

  5  relief, a declaratory judgment, or other relief available

  6  under law, if the requirement of exhausting the process for

  7  appeal and review places the subscriber's health in serious

  8  jeopardy.

  9         Section 3.  Disclosure of information.--This section

10  applies to all health maintenance contracts entered into by a

11  health maintenance organization with a subscriber or group of

12  subscribers.

13         (1)  Each health maintenance organization shall supply

14  written disclosure information to each subscriber, and upon

15  request to each prospective subscriber prior to enrollment,

16  which may be incorporated into the health maintenance

17  contract. If any inconsistency exists between a separate

18  written disclosure statement and the health maintenance

19  contract, the terms of the health maintenance contract shall

20  control. The information to be disclosed must include at least

21  the following:

22         (a)  A description of coverage provisions; health care

23  benefits; benefit maximums, including benefit limitations; and

24  exclusions of coverage, including the definition of medical

25  necessity used in determining whether benefits will be

26  covered.

27         (b)  A description of requirements for prior

28  authorization or other requirements for treatments and

29  services.

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  1         (c)  A description of the utilization review policies

  2  and procedures used by the health maintenance organization,

  3  including:

  4         1.  The circumstances under which utilization review

  5  will be undertaken;

  6         2.  The toll-free telephone number of the utilization

  7  review agent;

  8         3.  The timeframes under which utilization review

  9  decisions must be made for prospective, retrospective, and

10  concurrent decisions;

11         4.  The right to reconsideration;

12         5.  The right to an appeal, including the expedited and

13  standard appeals processes and the timeframes for such

14  appeals;

15         6.  The right to designate a representative;

16         7.  A notice that all denials of claims will be made by

17  qualified health care providers and that all notices of

18  denials will include information about the basis of the

19  decision;

20         8.  A notice of the right to an appeal, together with a

21  description of the appeal process established under section 1

22  of this act; and

23         9.  Any further appeal rights, if any.

24         (d)  A description prepared annually of the types of

25  methodologies the health maintenance organization uses to

26  reimburse health care providers, specifying the type of

27  methodology that is used to reimburse particular types of

28  providers or reimburse for the provision of particular types

29  of services. However, this paragraph does not require

30  disclosure of individual contracts or the specific details of

31

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  1  any financial arrangement between a health maintenance

  2  organization and a health care provider.

  3         (e)  An explanation of a subscriber's financial

  4  responsibility for payment of premiums, coinsurance,

  5  copayments, deductibles, and any other charges; annual limits

  6  on a subscriber's financial responsibility; caps on payments

  7  for covered services; and financial responsibility for

  8  noncovered health care procedures, treatments, or services.

  9         (f)  An explanation, where applicable, of a

10  subscriber's financial responsibility for payment when

11  services are provided by a health care provider who is not

12  part of the health maintenance organization's network of

13  providers or by any provider without required authorization.

14         (g)  A description of the grievance procedures to be

15  used to resolve disputes between the health maintenance

16  organization and a subscriber, including:

17         1.  The right to file a grievance regarding any dispute

18  between the health maintenance organization and a subscriber;

19         2.  The right to file a grievance orally when the

20  dispute is about referrals or covered benefits;

21         3.  The toll-free telephone number that subscribers may

22  use to file an oral grievance;

23         4.  The timeframes and circumstances for expedited and

24  standard grievances;

25         5.  The right to appeal a grievance determination and

26  the procedures for filing such an appeal;

27         6.  The timeframes and circumstances for expedited and

28  standard appeals;

29         7.  The right to designate a representative; and

30         8.  A notice that all disputes involving clinical

31  decisions will be made by qualified health care providers and

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  1  that all notices of determination will include information

  2  about the basis of the decision and further appeal rights, if

  3  any.

  4         (h)  A description of the procedure for obtaining

  5  emergency services. Such description must include a definition

  6  of emergency services, a notice that emergency services are

  7  not subject to prior approval, and a description of the

  8  subscriber's financial and other responsibilities regarding

  9  obtaining such services, including the subscriber's financial

10  responsibilities, if any, when such services are received

11  outside the service area of the health maintenance

12  organization.

13         (i)  Where applicable, a description of procedures for

14  subscribers to select and access the health maintenance

15  organization's primary and specialty care providers, including

16  notice of how to determine whether a participating provider is

17  accepting new patients.

18         (j)  Where applicable, a description of the procedures

19  for changing primary and specialty care providers within the

20  health maintenance organization's network of providers.

21         (k)  Where applicable, notice that a subscriber may

22  obtain a referral to a health care provider outside of the

23  organization's network when the health maintenance

24  organization does not have a health care provider in the

25  network with appropriate training and experience to meet the

26  particular health care needs of the subscriber, and the

27  procedure by which the subscriber may obtain such referral.

28         (l)  Where applicable, notice that a subscriber with a

29  condition that requires ongoing care from a specialist may

30  request a standing referral to such a specialist and the

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  1  procedure for requesting and obtaining such a standing

  2  referral.

  3         (m)  Where applicable, notice that a subscriber with a

  4  life-threatening condition or disease, or a degenerative and

  5  disabling condition or disease, either of which requires

  6  specialized medical care over a prolonged period, may request

  7  a specialist responsible for providing or coordinating the

  8  subscriber's medical care, and the procedure for requesting

  9  and obtaining such a specialist.

10         (n)  Where applicable, notice that a subscriber with a

11  life-threatening condition or disease, or a degenerative and

12  disabling condition or disease, either of which requires

13  specialized medical care over a prolonged period, may request

14  access to a specialty care center, and the procedure by which

15  such access may be obtained.

16         (o)  A description of how the health maintenance

17  organization addresses the needs of non-English-speaking

18  subscribers.

19         (p)  Notice of all appropriate mailing addresses and

20  telephone numbers to be used by subscribers seeking

21  information or authorization.

22         (q)  Where applicable, a listing by specialty, which

23  may be in a separate document that is updated annually, of the

24  name, address, and telephone number of all participating

25  health care providers, including facilities, and the board

26  certification number of physicians.

27         (r)  A description of the mechanisms by which

28  subscribers may participate in developing policies of the

29  health maintenance organization.

30         (2)  Each health maintenance organization, upon the

31  request of a subscriber or prospective subscriber shall:

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  1         (a)  Provide a list of the names, business addresses,

  2  and official positions of the board of directors, officers,

  3  and members of the health maintenance organization.

  4         (b)  Provide a copy of the most recent annual certified

  5  financial statement of the health maintenance organization,

  6  including its balance sheet and summary of receipts and

  7  disbursements prepared by a certified public accountant.

  8         (c)  Provide a copy of the most recent health

  9  maintenance contracts.

10         (d)  Provide information relating to consumer

11  complaints compiled under section 408.10, Florida Statutes.

12         (e)  Provide the procedures for protecting the

13  confidentiality of medical records and other subscriber

14  information.

15         (f)  Where applicable, allow subscribers and

16  prospective subscribers to inspect drug formularies used by

17  the health maintenance organization and disclose whether

18  individual drugs are included or excluded from coverage.

19         (g)  Provide a written description of the

20  organizational arrangements and ongoing procedures of the

21  health maintenance organization's quality assurance program,

22  if any.

23         (h)  Provide a description of the procedures followed

24  by the health maintenance organization in making decisions

25  about the experimental or investigational nature of individual

26  drugs, medical devices, or treatments in clinical trials.

27         (i)  Provide individual health care provider's

28  affiliations with participating hospitals, if any.

29         (j)  Upon written request, provide specific written

30  clinical review criteria relating to a particular condition or

31  disease and, where appropriate, other clinical information

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  1  that the health maintenance organization considers in its

  2  utilization review and a description of how it is used in the

  3  utilization review process. However, to the extent such

  4  information is proprietary to the health maintenance

  5  organization, the information may only be used for the

  6  purposes of assisting the subscriber or prospective subscriber

  7  in evaluating the covered services provided by the

  8  organization.

  9         (k)  Where applicable, provide the written application

10  procedures and minimum qualification requirements for a health

11  care provider to be considered by the health maintenance

12  organization for participation in the organization's network

13  of providers.

14         (l)  Disclose any other information required by rule of

15  the Department of Insurance or the Agency for Health Care

16  Administration.

17         (3)  This section does not prevent a health maintenance

18  organization from changing or updating the materials that are

19  made available to subscribers.

20         (4)  As to any program where the subscriber must select

21  a primary care provider, if a participating primary care

22  provider becomes unavailable to provide services to a

23  subscriber, the health maintenance organization shall provide

24  written notice within 15 days after the date the organization

25  becomes aware of such unavailability to each subscriber who

26  has chosen the provider as his or her primary care provider.

27  If a subscriber is enrolled in a managed care plan and is

28  undergoing an ongoing course of treatment with any other

29  participating provider who becomes unavailable to continue to

30  provide services to such subscriber, and the health

31  maintenance organization is aware of such ongoing course of

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  1  treatment, the organization shall provide written notice

  2  within 15 days after the date the organization becomes aware

  3  of such unavailability to such subscriber. Each notice must

  4  also describe the procedures for continuing care and for

  5  choosing an alternative provider.

  6         Section 4.  Provider profiles.--Each health maintenance

  7  organization, in developing provider profiles or otherwise

  8  measuring the performance of health care providers, shall:

  9         (1)  Make allowances for the severity of illness or

10  condition of the patient mix;

11         (2)  Make allowances for patients with multiple

12  illnesses or conditions;

13         (3)  Make available to the Department of Insurance and

14  the Agency for Health Care Administration documentation of how

15  the health maintenance organization makes such allowances; and

16         (4)  Inform subscribers and participating providers,

17  upon request, how the health maintenance organization

18  considers patient mix when profiling or evaluating providers.

19         Section 5.  Retaliatory action prohibited.--A health

20  maintenance organization may not take any retaliatory action

21  against an employee because the employee does any of the

22  following:

23         (1)  Discloses, or threatens to disclose, to a

24  supervisor or any agency an activity, policy, or practice of

25  the health maintenance organization or another employer with

26  whom there is a business relationship which the employee

27  reasonably believes violates a law or rule, or, in the case of

28  an employee who is a licensed or certified health care

29  provider, reasonably believes constitutes improper quality of

30  patient care.

31

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  1         (2)  Provides information to, or testifies before, any

  2  agency conducting an investigation, hearing, or inquiry into

  3  any violation of law or rule by a health maintenance

  4  organization or another employer with whom there is a business

  5  relationship, or, in the case of an employee who is a licensed

  6  or certified health care provider, provides information to, or

  7  testifies before, any agency conducting an investigation,

  8  hearing, or inquiry into the quality of patient care.

  9         (3)  Objects to, or refuses to participate in any

10  activity, policy, or practice that the employee reasonably

11  believes:

12         (a)  Violates a law or rule, or, if the employee is a

13  licensed or certified health care provider, constitutes

14  improper quality of patient care;

15         (b)  Is fraudulent or criminal; or

16         (c)  Is incompatible with a clear mandate of public

17  policy concerning the public health, safety, or welfare or

18  protection of the environment.

19         Section 6.  Referrals to another provider.--In any case

20  in which there is not a health care provider within the health

21  maintenance organization's provider network to provide a

22  covered benefit, the health maintenance organization shall

23  arrange for a referral to a provider with the necessary

24  expertise and ensure that the subscriber obtains the covered

25  benefit at a cost that does not exceed the subscriber's cost

26  if the benefit were obtained from a participating provider.

27         Section 7.  Prescription drug formulary.--If a health

28  maintenance organization uses a formulary for prescription

29  drugs, the health maintenance organization must include a

30  written procedure whereby a subscriber may obtain, without

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  1  penalty and in a timely fashion, specific drugs and

  2  medications that are not included in the formulary when:

  3         (1)  The formulary's equivalent has been ineffective in

  4  the treatment of the subscriber's disease or condition; or

  5         (2)  The formulary's drug causes, or is reasonably

  6  expected to cause, adverse or harmful reactions in the

  7  subscriber.

  8         Section 8.  Arbitrary limitations or conditions for the

  9  provision of services prohibited.--

10         (1)  A health maintenance organization may not

11  arbitrarily interfere with or alter the decision of the health

12  care provider regarding the manner or setting in which

13  particular services are delivered if the services are

14  medically necessary or appropriate for treatment or diagnosis

15  to the extent that such treatment or diagnosis is otherwise a

16  covered benefit.

17         (2)  Subsection (1) does not prohibit a health

18  maintenance organization from limiting the delivery of

19  services to one or more health care providers within a network

20  of such providers.

21         (3)  As used in subsection (1), the term "medically

22  necessary or appropriate" means a service or benefit that is

23  consistent with generally accepted principles of professional

24  medical practice.

25         Section 9.  Discrimination prohibited.--

26         (1)  Subject to subsection (2), a health maintenance

27  organization, with respect to health insurance coverage, may

28  not discriminate against a subscriber in the delivery of

29  health care services consistent with the benefits covered

30  under the health maintenance contract, or coverage required by

31  law, based on race, color, ethnicity, national origin,

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  1  religion, sex, age, mental or physical disability, sexual

  2  orientation, genetic information, or source of payment.

  3         (2)  Subsection (1) does not apply to eligibility for

  4  coverage; the offering or guaranteeing of an offer of

  5  coverage; the application of an exclusion for a preexisting

  6  condition, consistent with applicable law; or premiums charged

  7  for coverage under the health maintenance contract.

  8         Section 10.  Termination of a provider.--Each health

  9  maintenance organization shall establish a policy governing

10  the termination of providers. The policy must assure the

11  continued coverage of services at the contract price by a

12  terminated provider for up to 120 calendar days in cases where

13  it is medically necessary for the subscriber to continue

14  treatment with the terminated provider. The case of the

15  pregnancy of a subscriber constitutes medical necessity and

16  coverage of services by the terminated provider shall continue

17  to the postpartum evaluation of the subscriber, up to 6 weeks

18  after delivery. The policy must clearly state that the

19  determination as to the medical necessity of a subscriber's

20  continued treatment with a terminated provider is subject to

21  the appeal procedures set forth in section 1 of this act.

22         Section 11.  (1)  The Insurance Commissioner may

23  suspend or revoke a certificate of authority issued under part

24  I of chapter 641, Florida Statutes, or deny an application for

25  a certificate of authority, if the commissioner finds that:

26         (a)  The health maintenance organization is operating

27  significantly in contravention of its basic organizational

28  document, unless amendments to the basic organizational

29  document or other submissions that are consistent with the

30  operations of the organization have been filed with and

31  approved by the commissioner.

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  1         (b)  The health maintenance organization does not

  2  provide or arrange for basic health care services.

  3         (c)  The health maintenance organization is unable to

  4  fulfill its obligations to furnish health care coverage.

  5         (d)  The health maintenance organization is no longer

  6  financially responsible and may reasonably be expected to be

  7  unable to meet its obligations to subscribers or prospective

  8  subscribers.

  9         (e)  The health maintenance organization has failed to

10  correct, within the time prescribed, any deficiency occurring

11  due to the impairment of the prescribed minimum net worth of

12  the health maintenance organization.

13         (f)  The health maintenance organization has failed to

14  implement the grievance procedures and appeal process required

15  by section 1 of this act in a reasonable manner to resolve

16  valid complaints.

17         (g)  The health maintenance organization, or a person

18  acting on behalf of the organization, has intentionally

19  advertised or merchandised the services of the organization in

20  an untrue, a misrepresentative, a misleading, a deceptive, or

21  an unfair manner.

22         (h)  The continued operation of the health maintenance

23  organization would be hazardous to the subscribers of the

24  organization.

25         (i)  The health maintenance organization has otherwise

26  failed to substantially comply with part I of chapter 641,

27  Florida Statutes.

28         (2)  The Insurance Commissioner may impose a civil

29  penalty of not more than $25,000 against a health maintenance

30  organization for each cause listed in subsection (1). The

31  civil penalties may not exceed $100,000 against any one health

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  1  maintenance organization in 1 calendar year. The penalty may

  2  be imposed in addition to or instead of a suspension or

  3  revocation of the organization's certificate of authority.

  4         Section 12.  Section 641.513, Florida Statutes, is

  5  repealed.

  6         Section 13.  Prohibition against requiring or coercing

  7  a subscriber to use a provider other than the provider

  8  selected by the subscriber; penalties.--

  9         (1)  Notwithstanding any other provision of law to the

10  contrary, any subscriber to a health plan offered by or

11  through a health maintenance organization, managed care

12  organization, or prepaid health plan is entitled at all times

13  to free, full, and absolute choice in the selection of a

14  provider or facility licensed or permitted under chapter 458,

15  chapter 459, chapter 460, chapter 461, chapter 463, chapter

16  465, or chapter 466, Florida Statutes.  It is expressly

17  forbidden for any health plan to contain any provision that

18  would require or coerce a subscriber to the plan to use any

19  provider other than the provider selected by the subscriber.

20  Health maintenance organizations, managed care provider

21  organizations, and prepaid health plans must allow any health

22  care provider to participate as a service provider under a

23  health plan offered by the health maintenance organization,

24  managed care organization, or prepaid health plan, if the

25  health care provider agrees to:

26         (a)  Accept the reimbursement rates negotiated by the

27  health maintenance organization, managed care provider

28  organization, or prepaid health plan with other health care

29  providers that provide the same service under the health plan;

30  and

31

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  1         (b)  Comply with all guidelines relating to quality of

  2  care and utilization criteria which must be met by other

  3  employee or nonemployee providers.

  4         (2)  A health maintenance organization, managed care

  5  provider organization, or prepaid health plan that violates

  6  subsection (1) is subject to a civil fine in the amount of:

  7         (a)  Up to $25,000 for each violation; or

  8         (b)  If the Director of Health Care Administration

  9  determines that the entity has engaged in a pattern of

10  violations of subsection (1), up to $100,000 for each

11  violation.

12         Section 14.  Subsection (9) is added to section

13  627.419, Florida Statutes, to read:

14         627.419  Construction of policies.--

15         (9)(a)  Notwithstanding any other provision of law to

16  the contrary, any person covered under any health insurance

17  policy, health care services plan, or other contract that

18  provides for payment for medical expense benefits or

19  procedures is entitled at all times to free, full, and

20  absolute choice in the selection of a provider or facility

21  licensed or permitted under chapter 458, chapter 459, chapter

22  460, chapter 461, chapter 463, chapter 465, or chapter 466.

23  It is expressly forbidden for any health plan to contain any

24  provision that would require or coerce a person covered by the

25  plan to use any provider other than the provider selected by

26  the subscriber.  Any health insurance policy, health care

27  services plan, or other contract that provides for payment for

28  medical expense benefits or procedures must allow any health

29  care provider to participate as a service provider under a

30  health plan offered by the health insurance policy, health

31  care services plan, or other contract that provides for

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  1  payment for medical expense benefits or procedures, if the

  2  health care provider agrees to:

  3         1.  Accept the reimbursement rates negotiated by the

  4  health insurance policy, health care services plan, or other

  5  contract that provides for payment for medical expense

  6  benefits or procedures with other health care providers that

  7  provide the same service under the health plan; and

  8         2.  Comply with all guidelines relating to quality of

  9  care and utilization criteria which must be met by other

10  providers with whom the health insurance policy, health care

11  services plan, or other contract that provides for payment for

12  medical expense benefits or procedures has contractual

13  arrangements for those services.

14         (b)  The provider of any health insurance policy,

15  health care services plan, or other contract that violates

16  paragraph (a) is subject to a civil fine in the amount of:

17         1.  Up to $25,000 for each violation; or

18         2.  If the Insurance Commissioner determines that the

19  provider has engaged in a pattern of violations of paragraph

20  (a), up to $100,000 for each violation.

21         Section 15.  The provisions of sections 13 and 14 of

22  this act do not apply to any health insurance policy that is

23  in force before the effective date of this act but do apply to

24  such policies at the next renewal period immediately following

25  October 1, 2001.

26         Section 16.  Section 641.28, Florida Statutes, is

27  amended to read:

28         641.28  Civil remedy.--In any civil action brought to

29  enforce the terms and conditions of a health maintenance

30  organization contract, only the prevailing subscriber, or a

31  representative or provider acting on behalf of a subscriber,

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

  2  court costs. This section shall not be construed to authorize

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

  4  Insurance Commissioner or against the Agency for Health Care

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

  6         Section 17.  This act shall take effect October 1,

  7  2001.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Requires health maintenance organizations to provide an
      appeal process to resolve grievances brought by
12    subscribers. Provides for an external appeal when a
      subscriber is dissatisfied with the results of a formal
13    appeal. Provides for the Agency for Health Care
      Administration to adopt rules governing the appeal
14    process. Provides that a subscriber may maintain an
      action against a health maintenance organization that has
15    not exercised ordinary care in making treatment
      decisions. Provides for a claim of liability to be
16    reviewed by an independent review organization. Provides
      requirements for profiles of health care providers and
17    the measurement of the performance of health care
      providers. Prohibits a health maintenance organization
18    from taking retaliatory action against an employee for
      certain actions or disclosures concerning improper
19    patient care. Requires that a health maintenance
      organization refer a subscriber to an outside provider in
20    cases in which there is not a provider within the
      organization's network to provide a covered benefit.
21    Prohibits a health maintenance organization from
      arbitrarily interfering with certain decisions of a
22    health care provider. Authorizes the Insurance
      Commissioner to suspend or revoke a certificate of
23    authority upon finding certain violations by a health
      maintenance organization. Provides that subscribers are
24    entitled to free, full, and absolute choice of providers
      offering physician, chiropractic, podiatry, optometry,
25    pharmacy, or dental services, and prohibits coercion or
      coercive requirements relating to subscriber selection.
26    Provides for civil fines for violations. (See bill for
      details.)
27

28

29

30

31

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