Senate Bill sb0614

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    Florida Senate - 2006                                   SB 614

    By Senator Geller





    31-257-06

  1                      A bill to be entitled

  2         An act relating to medical malpractice

  3         insurance; creating the Florida Medical

  4         Malpractice Insurance Fund; providing the

  5         purpose of the fund; providing for governance

  6         by a board of governors; requiring the board to

  7         submit a plan of operation for approval by the

  8         Office of Insurance Regulation; providing

  9         investment requirements; authorizing the board

10         to employ staff and other professionals;

11         providing immunity from liability for members

12         of the board, its agents, and employees of the

13         state; providing for the fund to issue medical

14         malpractice policies to any physician,

15         regardless of specialty; providing requirements

16         for premium rates; providing for the tax-exempt

17         status of the fund; requiring the Financial

18         Services Commission to seek an opinion from the

19         Internal Revenue Service; providing for initial

20         capitalization; authorizing the Financial

21         Services Commission to adopt rules; providing

22         for termination of the fund; requiring

23         practitioners licensed under ch. 458 or ch.

24         459, F.S., to obtain and maintain professional

25         liability coverage of a specified amount as a

26         condition of licensure; providing certain

27         exceptions; providing an effective date.

28  

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

30  

31  

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    Florida Senate - 2006                                   SB 614
    31-257-06




 1         Section 1.  Florida Medical Malpractice Insurance

 2  Fund.--

 3         (1)  FINDINGS AND PURPOSES.--The Legislature finds and

 4  declares that there is a compelling state interest in

 5  maintaining the availability and affordability of health care

 6  services to the people of this state. This state interest is

 7  seriously threatened by the increased cost and decreased

 8  availability of medical malpractice insurance to physicians.

 9  To the extent that the private sector is unable to maintain a

10  viable and orderly market for medical malpractice insurance,

11  state actions to maintain the availability and affordability

12  of medical malpractice insurance are a valid and necessary

13  exercise of the police power.

14         (2)  DEFINITIONS.--As used in this section, the term:

15         (a)  "Fund" means the Florida Medical Malpractice

16  Insurance Fund, as created in this section.

17         (b)  "Physician" means a physician licensed under

18  chapter 458 or chapter 459, Florida Statutes.

19         (3)  FLORIDA MEDICAL MALPRACTICE INSURANCE FUND

20  CREATED.--There is created the Florida Medical Malpractice

21  Insurance Fund, which shall be subject to the requirements of

22  this section. The fund shall begin offering coverage when

23  initial capitalization is provided for the fund under

24  subsection (7).

25         (a)  The fund shall be administered by a board of

26  governors consisting of seven members who are appointed as

27  follows:

28         1.  Three members appointed by the Governor;

29         2.  Three members appointed by the Chief Financial

30  Officer; and

31  

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    Florida Senate - 2006                                   SB 614
    31-257-06




 1         3.  One member appointed by the other six board

 2  members.

 3  

 4  Board members shall serve at the pleasure of the appointing

 5  authority. Two board members must be physicians licensed in

 6  this state, and the Governor and the Chief Financial Officer

 7  shall each appoint one of these physicians. Each board member

 8  shall be appointed to a 4-year term and may be reappointed to

 9  subsequent terms.

10         (b)  The board shall submit a plan of operation, which

11  must be approved by the Office of Insurance Regulation of the

12  Financial Services Commission. The plan of operation and other

13  actions of the board are not rules that are subject to chapter

14  120, Florida Statutes.

15         (c)  Except as otherwise provided by this section, the

16  fund is subject to the requirements of state law which apply

17  to authorized insurers.

18         (d)  Moneys in the fund may not be expended, loaned, or

19  appropriated except to pay obligations of the fund arising out

20  of medical malpractice insurance policies issued to physicians

21  and the costs of administering the fund, including the

22  purchase of reinsurance as the board deems prudent. The board

23  shall enter into an agreement with the State Board of

24  Administration, which shall invest one-third of the moneys in

25  the fund pursuant to ss. 215.44-215.52, Florida Statutes. The

26  board shall enter into an agreement with the Division of

27  Treasury of the Department of Financial Services, which shall

28  invest two-thirds of the moneys in the fund pursuant to the

29  requirements for the investment of state funds in chapter 17,

30  Florida Statutes. Earnings from all investments shall be

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    Florida Senate - 2006                                   SB 614
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 1  retained in the fund, except as otherwise provided in this

 2  section.

 3         (e)  The fund may employ or contract with such staff

 4  and professionals as the board deems necessary for the

 5  administration of the fund.

 6         (f)  A member of the board, its agent, or any employee

 7  of the state may not be held liable for any action taken in

 8  performing the powers and duties of this section. This

 9  immunity does not apply to any willful tort or to a breach of

10  contract or agreement.

11         (g)  The fund is not a member insurer of the Florida

12  Insurance Guaranty Association established under part II of

13  chapter 631, Florida Statutes. The fund is not subject to ss.

14  624.407, 624.408, 624.4095, and 624.411, Florida Statutes.

15         (4)  MEDICAL MALPRACTICE INSURANCE POLICIES.--The board

16  must offer medical malpractice insurance to any physician,

17  regardless of his or her specialty, but may adopt underwriting

18  requirements, as specified in its plan of operation. The fund

19  shall offer limits of coverage of $250,000 per claim/$500,000

20  annual aggregate; $500,000 per claim/$1 million annual

21  aggregate; and $1 million per claim/$2 million annual

22  aggregate. The fund shall also allow policyholders to select

23  from policies with deductibles of $100,000, $200,000, and

24  $250,000 and excess coverage limits of $250,000 per claim and

25  $750,000 annual aggregate, $1 million per claim and $3 million

26  annual aggregate, or $2 million per claim and $4 million

27  annual aggregate. The fund shall offer such other limits as

28  specified in its plan of operation.

29         (5)  PREMIUM RATES.--The premium rates for coverage

30  offered by the fund must be actuarially sound and are subject

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    Florida Senate - 2006                                   SB 614
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 1  to the same requirements that apply to authorized insurers

 2  issuing medical malpractice insurance, except that:

 3         (a)  The rates may not include any factor for profits;

 4  and

 5         (b)  The anticipated future investment income of the

 6  fund, as projected in its rate filing, must be approximately

 7  equal to the actual investment income that the fund has

 8  earned, on average, for the prior 7 years. For those years of

 9  the prior 7 years during which the fund was not in operation,

10  the anticipated future investment income must be approximately

11  equal to the actual average investment income earned by the

12  State Board of Administration for the moneys available for

13  investment under ss. 215.44-215.53, Florida Statutes, and the

14  average annual investment income earned by the Division of

15  Treasury of the Department of Financial Services for the

16  investment of state funds under chapter 17, Florida Statutes,

17  in the same proportion as specified in paragraph (3)(d).

18         (6)  TAX EXEMPTION.--The fund shall be a political

19  subdivision of the state and is exempt from the corporate

20  income tax under chapter 220, Florida Statutes, and the

21  premiums are not subject to the premium tax imposed by s.

22  624.509, Florida Statutes. It is also the intent of the

23  Legislature that the fund be exempt from federal income

24  taxation. The Financial Services Commission and the fund shall

25  seek an opinion from the Internal Revenue Service as to the

26  tax-exempt status of the fund and shall make such

27  recommendations to the Legislature as the board deems

28  necessary to obtain tax-exempt status.

29         (7)  INITIAL CAPITALIZATION.--By July 1, 2007, the

30  Legislature shall provide by law for adequate initial

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    Florida Senate - 2006                                   SB 614
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 1  capitalization of the Florida Medical Malpractice Insurance

 2  Fund.

 3         (8)  RULES.--The Financial Services Commission may

 4  adopt rules to administer this section.

 5         (9)  REVERSION OF FUND ASSETS UPON TERMINATION.--The

 6  fund and the duties of the board under this section shall

 7  stand repealed on a date 10 years after the date the Florida

 8  Medical Malpractice Insurance Fund begins offering coverage

 9  under this section, unless reviewed and saved from repeal

10  through reenactment by the Legislature. Upon termination of

11  the fund, all assets of the fund shall revert to the General

12  Revenue Fund.

13         Section 2.  (1)  Notwithstanding any law to the

14  contrary, if the Florida Medical Malpractice Insurance Fund

15  begins offering coverage as provided in this act, all

16  physicians licensed under chapter 458 or chapter 459, Florida

17  Statutes, as a condition of licensure shall be required to

18  maintain financial responsibility by obtaining and maintaining

19  professional liability coverage in an amount not less than

20  $250,000 per claim, with a minimum annual aggregate of not

21  less than $500,000, from an authorized insurer as defined in

22  s. 624.09, Florida Statutes, from a surplus lines insurer as

23  defined in s. 626.914(2), Florida Statutes, from a risk

24  retention group as defined in s. 627.942, Florida Statutes,

25  from the Joint Underwriting Association established under s.

26  627.351(4), Florida Statutes, through a plan of self-insurance

27  as provided in s. 627.357 or s. 624.462, Florida Statutes, or

28  from the Florida Medical Malpractice Insurance Fund.

29         (2)  Physicians and osteopathic physicians who are

30  exempt from the financial responsibility requirements under s.

31  458.320(5)(a), (b), (c), (d), (e), and (f) and s.

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    Florida Senate - 2006                                   SB 614
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 1  459.0085(5)(a), (b), (c), (d), (e), and (f), Florida Statutes,

 2  are not subject to the requirements of this section.

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

 4  law.

 5  

 6            *****************************************

 7                          SENATE SUMMARY

 8    Creates the Florida Medical Malpractice Insurance Fund.
      Provides for oversight by a board of governors and the
 9    Office of Insurance Regulation of the Financial Services
      Commission. Provides for the fund to issue medical
10    malpractice policies to any physician regardless of
      specialty. Provides for initial capitalization of the
11    fund. Authorizes the Financial Services Commission to
      adopt rules. Provides for the fund to terminate in 10
12    years. Requires specified physicians to obtain
      professional liability coverage in an amount of at least
13    $250,000 per claim, with an annual aggregate of at least
      $500,000, as a condition of licensure. (See bill for
14    details.)

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