Florida Senate - 2011                                    SB 1694
       By Senator Richter
       37-01398C-11                                          20111694__
    1                        A bill to be entitled                      
    2         An act relating to motor vehicle personal injury
    3         protection insurance; amending s. 26.012, F.S.;
    4         providing that the circuit court has exclusive
    5         jurisdiction in actions involving challenges to
    6         arbitration decisions under the Florida Motor Vehicle
    7         No-Fault Law; amending s. 627.4137, F.S.; requiring a
    8         claimant’s request about insurance coverage to be
    9         appropriately served upon the disclosing entity;
   10         amending s. 627.731, F.S.; providing legislative
   11         intent with respect to the Florida Motor Vehicle No
   12         Fault Law; amending s. 627.736, F.S.; revising
   13         requirements relating to charges for treatment;
   14         specifying certain types of medical services subject
   15         to reimbursement; revising requirements relating to
   16         discovery; requiring the insured and assignee to
   17         comply with certain provisions to recover benefits;
   18         requiring the provider to produce persons having the
   19         most knowledge in specified circumstances; providing
   20         that an insurer that requests an examination under
   21         oath in a manner that is inconsistent with the policy
   22         is engaging in an unfair and deceptive trade practice;
   23         providing that failure to appear for an examination
   24         establishes a rebuttable presumption that such failure
   25         was unreasonable; limiting attorney’s fees; providing
   26         that attorney’s fees are calculated without regard to
   27         a contingency risk multiplier; providing for
   28         arbitration; authorizing an insurer to offer a policy
   29         that requires or allows for arbitration before a
   30         lawsuit can be filed and in lieu of litigation;
   31         providing that arbitration may not be initiated until
   32         a specified number of days after certain documents are
   33         received; providing for the location of arbitration
   34         and the selection of an arbitrator; requiring the
   35         claimant to make certain files available in specified
   36         circumstances; requiring the insurer to make certain
   37         evidence available in specified circumstances;
   38         providing that the written decision of the arbitrator,
   39         unless challenged, is binding; providing limits on the
   40         arbitration award and attorney’s fees and costs;
   41         providing that a claimant is entitled to reimbursement
   42         of attorney’s fees and costs; providing for a court
   43         challenge of the arbitration award; providing an
   44         effective date.
   46  Be It Enacted by the Legislature of the State of Florida:
   48         Section 1. Subsection (2) of section 26.012, Florida
   49  Statutes, is amended to read:
   50         26.012 Jurisdiction of circuit court.—
   51         (2) The circuit court They shall have exclusive original
   52  jurisdiction:
   53         (a) In all actions at law not cognizable by the county
   54  courts.;
   55         (b) Of proceedings relating to the settlement of the
   56  estates of decedents and minors, the granting of letters
   57  testamentary, guardianship, involuntary hospitalization, the
   58  determination of incompetency, and other jurisdiction usually
   59  pertaining to courts of probate.;
   60         (c) In all cases in equity including all cases relating to
   61  juveniles except traffic offenses as provided in chapters 316
   62  and 985.;
   63         (d) Of all felonies and of all misdemeanors arising out of
   64  the same circumstances as a felony which is also charged.;
   65         (e) In all cases involving legality of any tax assessment
   66  or toll or denial of refund, except as provided in s. 72.011.;
   67         (f) In actions of ejectment.; and
   68         (g) In all actions involving the title and boundaries of
   69  real property.
   70         (h) In all actions involving the Florida Motor Vehicle No
   71  Fault Law, ss. 627.730-627.7407, where arbitration is initiated
   72  pursuant to s. 627.736(18) and the arbitration decision is
   73  challenged.
   74         Section 2. Subsection (3) is added to section 627.4137,
   75  Florida Statutes, to read:
   76         627.4137 Disclosure of certain information required.—
   77         (3)Any request made to a self-insured corporation pursuant
   78  to this section shall be sent by certified mail to the
   79  registered agent of the disclosing entity.
   80         Section 3. Section 627.731, Florida Statutes, is amended to
   81  read:
   82         627.731 Purpose; legislative intent.—
   83         (1) The purpose of the Florida Motor Vehicle No-Fault Law
   84  ss. 627.730-627.7405 is to provide for medical, surgical,
   85  funeral, and disability insurance benefits without regard to
   86  fault, and to require motor vehicle insurance securing such
   87  benefits, for motor vehicles required to be registered in this
   88  state and, with respect to motor vehicle accidents, a limitation
   89  on the right to claim damages for pain, suffering, mental
   90  anguish, and inconvenience.
   91         (2) The Legislature intends that:
   92         (a) The provisions, schedules, and procedures authorized in
   93  ss. 627.730-627.7407 be implemented by the insurers offering
   94  policies pursuant to the no-fault law. These provisions,
   95  schedules, and procedures have full force and effect regardless
   96  of their express inclusion in an insurance policy, and an
   97  insurer is not required to amend its policy to implement and
   98  apply such provisions, schedules, or procedures.
   99         (b) Insurers properly investigate claims, and as such, be
  100  allowed to obtain examinations under oath and sworn statements
  101  from any claimant seeking no-fault insurance benefits, and to
  102  request mental and physical examinations of persons seeking
  103  personal injury protection coverage or benefits.
  104         (c) The insured’s interest in obtaining competent counsel
  105  must be balanced with the public’s interest in preventing a no
  106  fault system that encourages litigation by allowing for
  107  exorbitant attorney’s fees. Courts should limit attorney fee
  108  awards so as to eliminate the incentive for attorneys to
  109  manufacture unnecessary litigation.
  110         Section 4. Paragraph (a) of subsection (5), paragraph (b)
  111  of subsection (6), paragraph (b) of subsection (7), and
  112  subsection (8) of section 627.736, Florida Statutes, are
  113  amended, and subsections (17) and (18) are added to that
  114  section, to read:
  115         627.736 Required personal injury protection benefits;
  116  exclusions; priority; claims.—
  118         (a)1. Any physician, hospital, clinic, or other person or
  119  institution lawfully rendering treatment to an injured person
  120  for a bodily injury covered by personal injury protection
  121  insurance may charge the insurer and injured party only a
  122  reasonable amount pursuant to this section for the services and
  123  supplies rendered, and the insurer providing such coverage may
  124  pay for such charges directly to such person or institution
  125  lawfully rendering such treatment, if the insured receiving such
  126  treatment or his or her guardian has countersigned the properly
  127  completed invoice, bill, or claim form approved by the office
  128  upon which such charges are to be paid for as having actually
  129  been rendered, to the best knowledge of the insured or his or
  130  her guardian. In no event, However, may such a charge may not
  131  exceed be in excess of the amount the person or institution
  132  customarily charges for like services or supplies. When
  133  determining With respect to a determination of whether a charge
  134  for a particular service, treatment, or otherwise is reasonable,
  135  consideration may be given to evidence of usual and customary
  136  charges and payments accepted by the provider involved in the
  137  dispute, and reimbursement levels in the community and various
  138  federal and state medical fee schedules applicable to automobile
  139  and other insurance coverages, and other information relevant to
  140  the reasonableness of the reimbursement for the service,
  141  treatment, or supply.
  142         1.2. The insurer may limit reimbursement to 80 percent of
  143  the following schedule of maximum charges:
  144         a. For emergency transport and treatment by providers
  145  licensed under chapter 401, 200 percent of Medicare.
  146         b. For emergency services and care provided by a hospital
  147  licensed under chapter 395, 75 percent of the hospital’s usual
  148  and customary charges.
  149         c. For emergency services and care as defined by s.
  150  395.002(9) provided in a facility licensed under chapter 395
  151  rendered by a physician or dentist, and related hospital
  152  inpatient services rendered by a physician or dentist, the usual
  153  and customary charges in the community.
  154         d. For hospital inpatient services, other than emergency
  155  services and care, 200 percent of the Medicare Part A
  156  prospective payment applicable to the specific hospital
  157  providing the inpatient services.
  158         e. For hospital outpatient services, other than emergency
  159  services and care, 200 percent of the Medicare Part A Ambulatory
  160  Payment Classification for the specific hospital providing the
  161  outpatient services.
  162         f. For all other medical services, supplies, and care,
  163  including durable medical equipment, care, and services rendered
  164  by a clinical laboratory, 200 percent of the allowable amount
  165  under the participating physicians schedule of Medicare Part B.
  166  However, if such services, supplies, or care is not reimbursable
  167  under Medicare Part B, or if the care and services are rendered
  168  in an ambulatory surgical center, the insurer may limit
  169  reimbursement to 80 percent of the maximum reimbursable
  170  allowance under workers’ compensation, as determined under s.
  171  440.13 and rules adopted thereunder which are in effect at the
  172  time such services, supplies, or care is provided. Services,
  173  supplies, or care that is not reimbursable under Medicare or
  174  workers’ compensation is not required to be reimbursed by the
  175  insurer.
  176         2.3. For purposes of subparagraph 1. 2., the applicable fee
  177  schedule or payment limitation under Medicare is the fee
  178  schedule or payment limitation in effect on January 1 of the
  179  year in which at the time the services, supplies, or care was
  180  rendered and for the area in which such services were rendered,
  181  notwithstanding any subsequent changes made to such fee schedule
  182  or payment limitation, except that it may not be less than the
  183  allowable amount under the participating physicians schedule of
  184  Medicare Part B for 2007 for medical services, supplies, and
  185  care subject to Medicare Part B.
  186         3.4. Subparagraph 1. 2. does not allow the insurer to apply
  187  any limitation on the number of treatments or other utilization
  188  limits that apply under Medicare or workers’ compensation. An
  189  insurer that applies the allowable payment limitations of
  190  subparagraph 1. 2. must reimburse a provider who lawfully
  191  provided care or treatment under the scope of his or her
  192  license, regardless of whether such provider is would be
  193  entitled to reimbursement under Medicare due to restrictions or
  194  limitations on the types or discipline of health care providers
  195  who may be reimbursed for particular procedures or procedure
  196  codes.
  197         4.5. If an insurer limits payment as authorized by
  198  subparagraph 1. 2., the person providing such services,
  199  supplies, or care may not bill or attempt to collect from the
  200  insured any amount in excess of such limits, except for amounts
  201  that are not covered by the insured’s personal injury protection
  202  coverage due to the coinsurance amount or maximum policy limits.
  204         (b) Every physician, hospital, clinic, or other medical
  205  institution providing, before or after bodily injury upon which
  206  a claim for personal injury protection insurance benefits is
  207  based, any products, services, or accommodations in relation to
  208  that or any other injury, or in relation to a condition claimed
  209  to be connected with that or any other injury, shall, if
  210  requested to do so by the insurer against whom the claim has
  211  been made, furnish forthwith a written report of the history,
  212  condition, treatment, dates, and costs of such treatment of the
  213  injured person and why the items identified by the insurer were
  214  reasonable in amount and medically necessary, together with a
  215  sworn statement that the treatment or services rendered were
  216  reasonable and necessary with respect to the bodily injury
  217  sustained and identifying which portion of the expenses for such
  218  treatment or services was incurred as a result of such bodily
  219  injury, and produce forthwith, and permit the inspection and
  220  copying of, his or her or its records regarding such history,
  221  condition, treatment, dates, and costs of treatment if; provided
  222  that this does shall not limit the introduction of evidence at
  223  trial. Such sworn statement must shall read as follows: “Under
  224  penalty of perjury, I declare that I have read the foregoing,
  225  and the facts alleged are true, to the best of my knowledge and
  226  belief.” A No cause of action for violation of the physician
  227  patient privilege or invasion of the right of privacy may not be
  228  brought shall be permitted against any physician, hospital,
  229  clinic, or other medical institution complying with the
  230  provisions of this section. The person requesting such records
  231  and such sworn statement shall pay all reasonable costs
  232  connected therewith. If an insurer makes a written request for
  233  documentation or information under this paragraph within 30 days
  234  after having received notice of the amount of a covered loss
  235  under paragraph (4)(a), the amount or the partial amount that
  236  which is the subject of the insurer’s inquiry is shall become
  237  overdue if the insurer does not pay in accordance with paragraph
  238  (4)(b) or within 10 days after the insurer’s receipt of the
  239  requested documentation or information, whichever occurs later.
  240  For purposes of this paragraph, the term “receipt” includes, but
  241  is not limited to, inspection and copying pursuant to this
  242  paragraph. An Any insurer that requests documentation or
  243  information pertaining to reasonableness of charges or medical
  244  necessity under this paragraph without a reasonable basis for
  245  such requests as a general business practice is engaging in an
  246  unfair trade practice under the insurance code. In all
  247  circumstances, the insured seeking to recover benefits pursuant
  248  to ss. 627.730-627.7407 and any person or entity to whom the
  249  insured has assigned the contractual rights to such benefits or
  250  payment must comply with the terms of the policy, including, but
  251  not limited to, submitting to examinations under oath.
  252  Compliance with this paragraph is a condition precedent to
  253  recovery of benefits pursuant to ss. 627.730-627.7407. If an
  254  insurer requests an examination under oath of a medical
  255  provider, the provider must produce the persons having the most
  256  knowledge of the issues identified by the insurer in the request
  257  for examination. All claimants must produce and provide for
  258  inspection all documents requested by the insurer which are
  259  reasonably obtainable by the claimants. Examinations under oath
  260  may be recorded by audio, video, court reporter, or any
  261  combination thereof. An insurer that, as a general practice,
  262  requests examinations under oath in a manner that is
  263  inconsistent with the terms of the applicable insurance policy,
  264  is engaging in an unfair and deceptive trade practice.
  266  REPORTS.—
  267         (b) If requested by the person examined, a party causing an
  268  examination to be made shall deliver to him or her a copy of
  269  every written report concerning the examination rendered by an
  270  examining physician, at least one of which reports must set out
  271  the examining physician’s findings and conclusions in detail.
  272  After such request and delivery, the party causing the
  273  examination to be made is entitled, upon request, to receive
  274  from the person examined every written report available to him
  275  or her or his or her representative concerning any examination,
  276  previously or thereafter made, of the same mental or physical
  277  condition. By requesting and obtaining a report of the
  278  examination so ordered, or by taking the deposition of the
  279  examiner, the person examined waives any privilege he or she may
  280  have, in relation to the claim for benefits, regarding the
  281  testimony of every other person who has examined, or may
  282  thereafter examine, him or her in respect to the same mental or
  283  physical condition. If a person unreasonably refuses to submit
  284  to an examination, the personal injury protection carrier is no
  285  longer liable for subsequent personal injury protection benefits
  286  incurred after the date of the first request for examination.
  287  Failure to appear for an examination raises a rebuttable
  288  presumption that such failure was unreasonable. Submission to an
  289  examination is a condition precedent to benefits.
  291  With respect to any dispute under the provisions of ss. 627.730
  292  627.7407 ss. 627.730-627.7405 between the insured and the
  293  insurer, or between an assignee of an insured’s rights and the
  294  insurer, the provisions of s. 627.428 shall apply, except as
  295  provided in subsections (10) and (15), and except that any
  296  attorney’s fees recovered are limited to the lesser of $10,000
  297  or three times any disputed amount recovered by the attorney
  298  under ss. 627.730-627.7407. Attorney’s fees in a class action
  299  under ss. 627.730-627.7407 are limited to the lesser of $50,000
  300  or three times the total of any disputed amount recovered in the
  301  class action proceeding.
  302         (17)ATTORNEY’S FEES.—Notwithstanding s. 627.428, the
  303  attorney’s fees recovered under ss. 627.730-627.7407, shall be
  304  calculated without regard to a contingency risk multiplier.
  305         (18) ARBITRATION.—In order to expedite the resolution of
  306  disputes arising from contracts involving personal injury
  307  protection benefits, an insurer may offer a policy that requires
  308  or allows the insurer or claimant to demand arbitration of any
  309  claims dispute involving personal injury protection benefits
  310  before filing a lawsuit and in lieu of litigating the issues.
  311  This demand must be in writing and mailed to the insurer or
  312  claimant by certified mail. Arbitration is subject to the
  313  Florida Arbitration Code, except as otherwise provided in this
  314  section. In addition:
  315         (a) Arbitration may not be initiated until 30 days after
  316  the request for arbitration is received by the nonrequesting
  317  party and 20 days after documents are received pursuant to
  318  paragraphs (d) and (e).
  319         (b) Arbitration shall take place in the county in which the
  320  treatment was rendered. If the treatment was rendered outside
  321  the state, arbitration shall take place in the county in which
  322  the insured resides unless the parties agree to another
  323  location.
  324         (c) The arbitration shall be conducted by one arbitrator
  325  selected by mutual agreement between the parties. If the parties
  326  are unable to mutually agree on an arbitrator within 20 days
  327  after the arbitration request, the chief judge of the circuit in
  328  which the arbitration is pending shall select the arbitrator
  329  based on a rotating schedule.
  330         (d) Upon written request submitted before arbitration, the
  331  claimant must make the entire file, including medical records,
  332  pertaining to the insured who is the subject of arbitration
  333  available for inspection or copying.
  334         (e) Upon written request submitted before arbitration, the
  335  insurer must make the evidence upon which it is relying in
  336  adjusting or rejecting the claim available for inspection or
  337  copying. Discovery is available only for items relating to
  338  insurance coverage. The insurer is not required to produce from
  339  its claims privileged items, underwriting files, or documents it
  340  does not intend to rely on as evidence supporting its adjustment
  341  or rejection of the claim. Discovery is not available pertaining
  342  to issues of potential bad faith claims handling.
  343         (f) The written decision of the arbitrator, unless
  344  challenged under paragraph (i), is binding on each party. The
  345  decision shall be furnished in writing to each party.
  346         (g) An arbitration award may not exceed the applicable
  347  limits of coverage remaining on the policy.
  348         (h) The claimant is entitled to reimbursement of attorney’s
  349  fees and costs directly associated with the arbitration, subject
  350  to subsection (8).
  351         (i) Either party may challenge the arbitration decision by
  352  filing a complaint in the circuit court, with a copy of the
  353  arbitration disposition attached. A challenge to the decision is
  354  limited to review of the record and not de novo review. If the
  355  insurer pays the amount due as determined in the arbitration but
  356  the insured challenges the arbitration award in circuit court,
  357  s. 627.428 does not apply, and interest on the amount in dispute
  358  does not accrue during the course of litigation.
  359         Section 5. This act shall take effect upon becoming a law.