| 1 | A bill to be entitled |
| 2 | An act relating to insurance; amending s. 501.212, F.S.; |
| 3 | specifying that pt. II of ch. 501, F.S., the Deceptive and |
| 4 | Unfair Trade Practice Act, applies to the business of |
| 5 | insurance; creating s. 624.156, F.S.; providing |
| 6 | applicability of pt. II of ch. 501, F.S., to the business |
| 7 | of insurance; amending s. 627.062, F.S.; providing that |
| 8 | rate standards for medical malpractice insurance apply to |
| 9 | a separate affiliate of an insurer; revising provisions |
| 10 | relating to application of discounts or surcharges; |
| 11 | requiring a medical malpractice liability insurer to file |
| 12 | a surcharge or discount schedule with the Director of the |
| 13 | Office of Insurance Regulation before applying certain |
| 14 | rates or surcharges; requiring the office to consider |
| 15 | certain factors in determining an insurer's rate base; |
| 16 | requiring a medical malpractice insurer to provide |
| 17 | specified information when submitting a rate filing; |
| 18 | providing penalties; providing legislative findings and |
| 19 | intent with regard to medical malpractice rates; requiring |
| 20 | medical malpractice insurance rates to be approved by the |
| 21 | Director of the Office of Insurance Regulation after a |
| 22 | specified date; providing the Financial Services |
| 23 | Commission with rulemaking authority; amending s. |
| 24 | 627.4147, F.S.; deleting provisions authorizing an insurer |
| 25 | covered by a medical malpractice insurance contract to |
| 26 | require an insured to be a member in good standing of |
| 27 | certain professional societies; creating s. 627.41491, |
| 28 | F.S.; requiring the office to publish a medical |
| 29 | malpractice insurance rate comparison chart and to post |
| 30 | the chart on its Internet website; amending s. 627.41495, |
| 31 | F.S.; requiring a medical malpractice insurer or self- |
| 32 | insurance fund to provide notice to its policyholders or |
| 33 | members and the consumer advocate of specified decreases |
| 34 | in rates; granting the consumer advocate standing with |
| 35 | regard to rate hearings; requiring the Director of the |
| 36 | Office of Insurance Regulation to hold a rate hearing |
| 37 | within a specified period of time after receiving a |
| 38 | request for a hearing; amending s. 627.912, F.S.; revising |
| 39 | requirements for reporting professional liability claims |
| 40 | and actions; requiring fines to be imposed under certain |
| 41 | circumstances; providing an effective date. |
| 42 |
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| 43 | Be It Enacted by the Legislature of the State of Florida: |
| 44 |
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| 45 | Section 1. Subsection (4) of section 501.212, Florida |
| 46 | Statutes, is amended to read: |
| 47 | 501.212 Application.-This part does not apply to: |
| 48 | (4) Any person or activity regulated under laws |
| 49 | administered by: |
| 50 | (a) The Office of Insurance Regulation of the Financial |
| 51 | Services Commission; |
| 52 | (a)(b) Banks and savings and loan associations regulated |
| 53 | by the Office of Financial Regulation of the Financial Services |
| 54 | Commission; |
| 55 | (b)(c) Banks or savings and loan associations regulated by |
| 56 | federal agencies; or |
| 57 | (c)(d) Any person or activity regulated under the laws |
| 58 | administered by the former Department of Insurance which are now |
| 59 | administered by the Department of Financial Services, other than |
| 60 | laws relating to the regulation of the business of insurance. |
| 61 | Section 2. Section 624.156, Florida Statutes, is created |
| 62 | to read: |
| 63 | 624.156 Applicability of consumer protection laws to the |
| 64 | business of insurance.-Notwithstanding any provision of law to |
| 65 | the contrary, the business of insurance is subject to ss. |
| 66 | 501.201-501.213, the Florida Deceptive and Unfair Trade |
| 67 | Practices Act, and the protections afforded consumers under that |
| 68 | act apply to insurance consumers. |
| 69 | Section 3. Paragraphs (a) and (e) of subsection (7) of |
| 70 | section 627.062, are amended, present paragraph (f) of that |
| 71 | subsection is redesignated as paragraph (g) and amended, and new |
| 72 | paragraphs (f), (h), (i), and (j) are added to that subsection |
| 73 | to read: |
| 74 | 627.062 Rate standards.- |
| 75 | (7)(a) The provisions of This subsection applies apply |
| 76 | only with respect to rates for medical malpractice insurance and |
| 77 | shall control to the extent of any conflict with other |
| 78 | provisions of this section. Any separate affiliate of an insurer |
| 79 | is subject to this subsection. |
| 80 | (e) The insurer must apply a discount or surcharge, |
| 81 | exclusive of any other discounts, credits, or rate |
| 82 | differentials, based on the health care provider's loss |
| 83 | experience and disciplinary action taken by the Federal |
| 84 | Government, the state, a health care facility, or a health care |
| 85 | plan or must shall establish an alternative method giving due |
| 86 | consideration to the provider's loss experience and disciplinary |
| 87 | record. The insurer must include in the filing a copy of the |
| 88 | surcharge or discount schedule or a description of the |
| 89 | alternative method used, and must provide a copy of such |
| 90 | schedule or description, as approved by the office, to |
| 91 | policyholders at the time of renewal and to prospective |
| 92 | policyholders at the time of application for coverage. A medical |
| 93 | malpractice liability insurer may not use any rate or charge any |
| 94 | premium unless the insurer has filed such schedule or |
| 95 | alternative method with the Director of the Office of Insurance |
| 96 | Regulation and the director has approved such schedule or |
| 97 | alternative method. |
| 98 | (f) In reviewing any rate filing under this subsection, |
| 99 | the office shall consider as part of the insurer's rate base the |
| 100 | insurer's loss cost adjustment expenses or defense cost and |
| 101 | containment expenses only to the extent that the expenses are at |
| 102 | or below the national average for such expenses, as determined |
| 103 | by the office, for the prior calendar year. An insurer's loss |
| 104 | cost adjustment expenses or defense cost and containment |
| 105 | expenses in excess of the national average may not be used to |
| 106 | justify a rate or rate change. |
| 107 | (g)(f) Each medical malpractice insurer must make a rate |
| 108 | filing under this section, sworn to by at least two executive |
| 109 | officers of the insurer, at least once each calendar year. |
| 110 | 1. Effective July 1, 2011, a rate filing must be |
| 111 | accompanied by a certification by the chief executive officer or |
| 112 | chief financial officer of a medical malpractice insurer and the |
| 113 | chief actuary of a medical malpractice insurer, under oath and |
| 114 | subject to the penalty of perjury, on a form approved by the |
| 115 | commission, that the signing officer and actuary have reviewed |
| 116 | the rate filing and that, based on the signing officer's and |
| 117 | actuary's knowledge: |
| 118 | a. The rate filing does not contain any untrue statement |
| 119 | of a material fact or any omission to state a material fact |
| 120 | necessary in order to make the statements made, in light of the |
| 121 | circumstances under which such statements were made, not |
| 122 | misleading. |
| 123 | b. The factors described in paragraph (2)(b), including, |
| 124 | but not limited to, investment income, fairly present in all |
| 125 | material respects the basis of the rate filing for the periods |
| 126 | presented in the rate filing. |
| 127 | c. The rate filing reflects all premium savings that are |
| 128 | reasonably expected to result from legislative enactments, |
| 129 | including, but not limited to, chapters 2003-416 and 2006-6, |
| 130 | Laws of Florida, and is in accordance with generally accepted |
| 131 | and reasonable actuarial techniques. |
| 132 | 2. A signing officer or actuary knowingly making a false |
| 133 | certification under this paragraph commits a violation of s. |
| 134 | 626.9541(1)(e) and is subject to the penalties provided in s. |
| 135 | 626.9521. |
| 136 | 3. Failure by the signing officer and actuary to provide |
| 137 | such certification shall result in the rate filing being |
| 138 | disapproved without prejudice to be refiled. |
| 139 | (h) It is the intent of the Legislature that medical |
| 140 | malpractice rates be based upon projected losses and expenses |
| 141 | that reflect the current restrictions on the recovery of |
| 142 | individuals in medical malpractice claims in this state, |
| 143 | including, but not limited to, those provisions contained in |
| 144 | chapters 2003-416 and 2006-6, Laws of Florida. The Legislature |
| 145 | finds that there is no justification for basing rates on the |
| 146 | prior 10 years of loss experience and expenses when in the |
| 147 | intervening years significant restrictions on the legal rights |
| 148 | and recoveries of patients and their families have been enacted. |
| 149 | Accordingly, notwithstanding any law, rule, policy, or industry |
| 150 | practice to the contrary, rates for medical malpractice |
| 151 | insurance filed with the office after July 1, 2011, may not be |
| 152 | based upon the loss and expense experience of more than 5 years |
| 153 | prior to that date. |
| 154 | (i) Notwithstanding any law to the contrary, beginning |
| 155 | July 1, 2011, insurance rates for medical malpractice subject to |
| 156 | this chapter must be approved by the Director of the Office of |
| 157 | Insurance Regulation prior to being used. |
| 158 | (j) The commission may adopt rules pursuant to ss. |
| 159 | 120.536(1) and 120.54 to administer this subsection. |
| 160 | Section 4. Subsection (3) of section 627.4147, Florida |
| 161 | Statutes, is renumbered as subsection (2), and present |
| 162 | subsection (2) of that section is amended to read: |
| 163 | 627.4147 Medical malpractice insurance contracts.- |
| 164 | (2) Each insurer covered by this section may require the |
| 165 | insured to be a member in good standing, i.e., not subject to |
| 166 | expulsion or suspension, of a duly recognized state or local |
| 167 | professional society of health care providers which maintains a |
| 168 | medical review committee. No professional society shall expel or |
| 169 | suspend a member solely because he or she participates in a |
| 170 | health maintenance organization licensed under part I of chapter |
| 171 | 641. |
| 172 | Section 5. Section 627.41491, Florida Statutes, is created |
| 173 | to read: |
| 174 | 627.41491 Public rate comparison information.-The office |
| 175 | shall publish a chart comparing the rates in effect for the |
| 176 | Florida Medical Malpractice Joint Underwriting Association and |
| 177 | each medical malpractice insurer, self-insurer, and risk |
| 178 | retention group. The chart shall include comparisons of the |
| 179 | rates of a variety of specialties and shall reflect the |
| 180 | differing rates by geographic region, years in practice, and |
| 181 | discounts and surcharges available, including those required |
| 182 | under s. 627.062(7)(e) for the loss and disciplinary record of |
| 183 | the potential insured. Such rate comparison chart shall be made |
| 184 | available to the public on the office website and shall be |
| 185 | updated at least annually beginning January 1, 2013. |
| 186 | Section 6. Section 627.41495, Florida Statutes, is amended |
| 187 | to read: |
| 188 | 627.41495 Public notice of medical malpractice rate |
| 189 | filings; consumer advocate participation in rate review.- |
| 190 | (1) Upon the filing of a proposed rate change by a medical |
| 191 | malpractice insurer or self-insurance fund, which filing would |
| 192 | result in an average statewide increase or decrease of 10 25 |
| 193 | percent or more, pursuant to standards determined by the office, |
| 194 | the insurer or self-insurance fund shall mail notice of such |
| 195 | filing to each of its policyholders or members and the consumer |
| 196 | advocate appointed pursuant to s. 627.0613. |
| 197 | (2) The consumer advocate shall have standing to request |
| 198 | or intervene and to participate in a rate hearing in accordance |
| 199 | with the requirements of this section. The office shall receive |
| 200 | into evidence as part of the record any materials, information, |
| 201 | or studies submitted by the members of the public or the |
| 202 | consumer advocate. |
| 203 | (3) The consumer advocate and any policyholder or member |
| 204 | of the insurer or self-insurer may request a rate hearing on the |
| 205 | proposed rate change within 30 days after the mailing of the |
| 206 | notification of the proposed rate change. The Director of the |
| 207 | Office of Insurance Regulation shall hold the hearing within 30 |
| 208 | days after receiving a request for a hearing. |
| 209 | (4)(2) The rate filing shall be available for public |
| 210 | inspection. |
| 211 | Section 7. Paragraphs (h) and (i) of subsection (2) and |
| 212 | subsection (4) of section 627.912, Florida Statutes, are amended |
| 213 | to read: |
| 214 | 627.912 Professional liability claims and actions; reports |
| 215 | by insurers and health care providers; annual report by office.- |
| 216 | (2) The reports required by subsection (1) shall contain: |
| 217 | (h) The total number, names, and health care provider |
| 218 | professional license numbers of all defendants involved in the |
| 219 | claim and any nonparty health care provider who appeared on the |
| 220 | jury verdict form in any case. |
| 221 | (i) The date and amount of judgment or settlement, if any, |
| 222 | including the itemization of the verdict from the jury verdict |
| 223 | form. |
| 224 | (4) There shall be no liability on the part of, and no |
| 225 | cause of action of any nature shall arise against, any person or |
| 226 | entity reporting hereunder or its agents or employees or the |
| 227 | office or its employees for any action taken by them under this |
| 228 | section. The office shall may impose a fine of up to $250 per |
| 229 | day per case, but not to exceed a total of $10,000 per case, |
| 230 | against an insurer, commercial self-insurance fund, medical |
| 231 | malpractice self-insurance fund, or risk retention group that |
| 232 | violates the requirements of this section, except that the |
| 233 | office shall may impose a fine of $250 per day per case, not to |
| 234 | exceed a total of $1,000 per case, against an insurer providing |
| 235 | professional liability insurance to a member of The Florida Bar, |
| 236 | which insurer violates the provisions of this section. If a |
| 237 | health care practitioner or health care facility violates the |
| 238 | requirements of this section, it shall be considered a violation |
| 239 | of the chapter or act under which the practitioner or facility |
| 240 | is licensed and shall be grounds for a fine or disciplinary |
| 241 | action as such other violations of the chapter or act. The |
| 242 | office may adjust a fine imposed under this subsection by |
| 243 | considering the financial condition of the licensee, premium |
| 244 | volume written, ratio of violations to compliancy, and other |
| 245 | mitigating factors as determined by the office. |
| 246 | Section 8. This act shall take effect July 1, 2011. |