CS/HB 967

1	A bill to be entitled
2	An act relating to personal injury protection insurance;
3	amending s. 26.012, F.S.; providing that the circuit court
4	has exclusive original jurisdiction in actions involving
5	challenges to arbitration decisions under the Florida
6	Motor Vehicle No-Fault Law; amending s. 627.4137, F.S.;
7	requiring requests made to a self-insured corporation for
8	disclosure of certain information to be by certified mail;
9	creating s. 627.7311, F.S.; providing for the effect of
10	specified statutory provisions, schedules, and procedures
11	on insurance policies; amending s. 627.736, F.S.;
12	requiring an insured seeking benefits to comply with
13	policy terms as a condition precedent to receiving
14	benefits; revising a reference to Medicare Part B payments
15	as the schedule for an insurer's discretionary use when
16	limiting reimbursement of certain medical services,
17	supplies, and care; specifying the Medicare fee schedule
18	or payment limitation that is to be used by an insurer to
19	limit reimbursements for certain medical services,
20	supplies, and care; requiring that an insurer under
21	certain circumstances notify a provider of an improperly
22	completed form and provide an opportunity to submit a
23	completed form within a specified time; requiring any
24	assignee of benefits or payments to cooperate under the
25	terms of the policy; requiring a provider who is assigned
26	the benefits of an insured to submit to examination under
27	oath under certain circumstances; requiring a provider to
28	produce certain knowledgeable individuals for examination
29	under oath under certain circumstances; requiring certain
30	records be provided by claimants for inspection if
31	requested by an insurer; authorizing methods for recording
32	examinations under oath; providing that certain actions by
33	an insurer constitute an unfair and deceptive trade
34	practice; subjecting insurers to penalties for an unfair
35	and deceptive trade practice; creating a presumption
36	relating to failing to appear for an examination;
37	specifying that submitting to an examination is a
38	condition precedent to receiving benefits; providing for
39	application relating to attorney's fees; limiting the
40	amount of recoverable attorney's fees; prohibiting the use
41	of a contingency risk multiplier when calculating
42	attorney's fees; authorizing binding arbitration as a
43	policy provision for dispute resolution; providing
44	requirements and procedures relating to arbitration;
45	providing for the recovery of specified attorney's fees
46	and costs in arbitration; providing for a judicial
47	challenge of an arbitration decision; providing for the
48	scope of review relating to such challenge; providing that
49	s. 627.428, F.S., relating to attorneys' fees, does not
50	apply to a challenge of an arbitration decision;
51	prohibiting the accrual of interest during litigation of
52	such challenge under certain circumstances; providing an
53	effective date.
54
55	Be It Enacted by the Legislature of the State of Florida:
56
57	Section 1.  Subsection (2) of section 26.012, Florida
58	Statutes, is amended to read:
59	26.012  Jurisdiction of circuit court.-
60	(2)  The circuit court They shall have exclusive original
61	jurisdiction:
62	(a)  In all actions at law not cognizable by the county
63	courts.;
64	(b)  Of proceedings relating to the settlement of the
65	estates of decedents and minors, the granting of letters
66	testamentary, guardianship, involuntary hospitalization, the
67	determination of incompetency, and other jurisdiction usually
68	pertaining to courts of probate.;
69	(c)  In all cases in equity including all cases relating to
70	juveniles except traffic offenses as provided in chapters 316
71	and 985.;
72	(d)  Of all felonies and of all misdemeanors arising out of
73	the same circumstances as a felony which is also charged.;
74	(e)  In all cases involving legality of any tax assessment
75	or toll or denial of refund, except as provided in s. 72.011.;
76	(f)  In actions of ejectment.; and
77	(g)  In all actions involving the title and boundaries of
78	real property.
79	(h)  In all actions involving the Florida Motor Vehicle No-
80	Fault Law, ss. 627.730-627.7405, where arbitration is initiated
81	pursuant to s. 627.736(18) and the arbitration decision is
82	challenged.
83	Section 2.  Subsection (3) is added to section 627.4137,
84	Florida Statutes, to read:
85	627.4137  Disclosure of certain information required.-
86	(3)  Any request made to a self-insured corporation
87	pursuant to this section shall be sent by certified mail to the
88	registered agent of the disclosing entity.
89	Section 3.  Section 627.7311, Florida Statutes, is created
90	to read:
91	627.7311  Effect of law on policies.-The provisions,
92	schedules, and procedures authorized in ss. 627.730-627.7405
93	shall be implemented by the insurers offering policies pursuant
94	to the Florida Motor Vehicle 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	Section 4.  Paragraph (i) is added to subsection (4) of
100	section 627.736, Florida Statutes, paragraphs (a) and (d) of
101	subsection (5), paragraph (b) of subsection (6), paragraph (b)
102	of subsection (7), and subsection (8) of that section are
103	amended, and subsections (17) and (18) are added to that
104	section, to read:
105	627.736  Required personal injury protection benefits;
106	exclusions; priority; claims.-
107	(4)  BENEFITS; WHEN DUE.-Benefits due from an insurer under
108	ss. 627.730-627.7405 shall be primary, except that benefits
109	received under any workers' compensation law shall be credited
110	against the benefits provided by subsection (1) and shall be due
111	and payable as loss accrues, upon receipt of reasonable proof of
112	such loss and the amount of expenses and loss incurred which are
113	covered by the policy issued under ss. 627.730-627.7405. When
114	the Agency for Health Care Administration provides, pays, or
115	becomes liable for medical assistance under the Medicaid program
116	related to injury, sickness, disease, or death arising out of
117	the ownership, maintenance, or use of a motor vehicle, benefits
118	under ss. 627.730-627.7405 shall be subject to the provisions of
119	the Medicaid program.
120	(i)  In all circumstances, an insured seeking benefits
121	under ss. 627.730-627.7405 must comply with the terms of the
122	policy, which includes, but is not limited to, submitting to
123	examinations under oath. Compliance with this paragraph is a
124	condition precedent to receiving benefits.
125	(5)  CHARGES FOR TREATMENT OF INJURED PERSONS.-
126	(a)1.  Any physician, hospital, clinic, or other person or
127	institution lawfully rendering treatment to an injured person
128	for a bodily injury covered by personal injury protection
129	insurance may charge the insurer and injured party only a
130	reasonable amount pursuant to this section for the services and
131	supplies rendered, and the insurer providing such coverage may
132	pay for such charges directly to such person or institution
133	lawfully rendering such treatment, if the insured receiving such
134	treatment or his or her guardian has countersigned the properly
135	completed invoice, bill, or claim form approved by the office
136	upon which such charges are to be paid for as having actually
137	been rendered, to the best knowledge of the insured or his or
138	her guardian. In no event, However, may such a charge may not
139	exceed be in excess of the amount the person or institution
140	customarily charges for like services or supplies. When
141	determining With respect to a determination of whether a charge
142	for a particular service, treatment, or otherwise is reasonable,
143	consideration may be given to evidence of usual and customary
144	charges and payments accepted by the provider involved in the
145	dispute, and reimbursement levels in the community and various
146	federal and state medical fee schedules applicable to automobile
147	and other insurance coverages, and other information relevant to
148	the reasonableness of the reimbursement for the service,
149	treatment, or supply.
150	1.2.  The insurer may limit reimbursement to 80 percent of
151	the following schedule of maximum charges:
152	a.  For emergency transport and treatment by providers
153	licensed under chapter 401, 200 percent of Medicare.
154	b.  For emergency services and care provided by a hospital
155	licensed under chapter 395, 75 percent of the hospital's usual
156	and customary charges.
157	c.  For emergency services and care as defined by s.
158	395.002(9) provided in a facility licensed under chapter 395
159	rendered by a physician or dentist, and related hospital
160	inpatient services rendered by a physician or dentist, the usual
161	and customary charges in the community.
162	d.  For hospital inpatient services, other than emergency
163	services and care, 200 percent of the Medicare Part A
164	prospective payment applicable to the specific hospital
165	providing the inpatient services.
166	e.  For hospital outpatient services, other than emergency
167	services and care, 200 percent of the Medicare Part A Ambulatory
168	Payment Classification for the specific hospital providing the
169	outpatient services.
170	f.  For all other medical services, supplies, and care,
171	including durable medical equipment, care, and services rendered
172	by a clinical laboratory, 200 percent of the allowable amount
173	under the participating physicians schedule of Medicare Part B.
174	However, if such services, supplies, or care is not reimbursable
175	under Medicare Part B, or if the care and services are rendered
176	in an ambulatory surgical center, the insurer may limit
177	reimbursement to 80 percent of the maximum reimbursable
178	allowance under workers' compensation, as determined under s.
179	440.13 and rules adopted thereunder which are in effect at the
180	time such services, supplies, or care is provided. Services,
181	supplies, or care that is not reimbursable under Medicare or
182	workers' compensation is not required to be reimbursed by the
183	insurer.
184	2.3.  For purposes of subparagraph 1. 2., the applicable
185	fee schedule or payment limitation under Medicare is the fee
186	schedule or payment limitation in effect on January 1 of the
187	year in which at the time the services, supplies, or care was
188	rendered and for the area in which such services were rendered,
189	and shall apply throughout the remainder of the year,
190	notwithstanding any subsequent changes made to such fee schedule
191	or payment limitation, except that it may not be less than the
192	allowable amount under the participating physicians schedule of
193	Medicare Part B for 2007 for medical services, supplies, and
194	care subject to Medicare Part B.
195	3.4.  Subparagraph 1. 2. does not allow the insurer to
196	apply any limitation on the number of treatments or other
197	utilization limits that apply under Medicare or workers'
198	compensation. An insurer that applies the allowable payment
199	limitations of subparagraph 1. 2. must reimburse a provider who
200	lawfully provided care or treatment under the scope of his or
201	her license, regardless of whether such provider is would be
202	entitled to reimbursement under Medicare due to restrictions or
203	limitations on the types or discipline of health care providers
204	who may be reimbursed for particular procedures or procedure
205	codes.
206	4.5.  If an insurer limits payment as authorized by
207	subparagraph 1. 2., the person providing such services,
208	supplies, or care may not bill or attempt to collect from the
209	insured any amount in excess of such limits, except for amounts
210	that are not covered by the insured's personal injury protection
211	coverage due to the coinsurance amount or maximum policy limits.
212	(d)  All statements and bills for medical services rendered
213	by any physician, hospital, clinic, or other person or
214	institution shall be submitted to the insurer on a properly
215	completed Centers for Medicare and Medicaid Services (CMS) 1500
216	form, UB 92 forms, or any other standard form approved by the
217	office or adopted by the commission for purposes of this
218	paragraph. All billings for such services rendered by providers
219	shall, to the extent applicable, follow the Physicians' Current
220	Procedural Terminology (CPT) or Healthcare Correct Procedural
221	Coding System (HCPCS), or ICD-9 in effect for the year in which
222	services are rendered and comply with the Centers for Medicare
223	and Medicaid Services (CMS) 1500 form instructions and the
224	American Medical Association Current Procedural Terminology
225	(CPT) Editorial Panel and Healthcare Correct Procedural Coding
226	System (HCPCS). All providers other than hospitals shall include
227	on the applicable claim form the professional license number of
228	the provider in the line or space provided for "Signature of
229	Physician or Supplier, Including Degrees or Credentials." In
230	determining compliance with applicable CPT and HCPCS coding,
231	guidance shall be provided by the Physicians' Current Procedural
232	Terminology (CPT) or the Healthcare Correct Procedural Coding
233	System (HCPCS) in effect for the year in which services were
234	rendered, the Office of the Inspector General (OIG), Physicians
235	Compliance Guidelines, and other authoritative treatises
236	designated by rule by the Agency for Health Care Administration.
237	A No statement of medical services may not include charges for
238	medical services of a person or entity that performed such
239	services without possessing the valid licenses required to
240	perform such services. For purposes of paragraph (4)(b), an
241	insurer is shall not be considered to have been furnished with
242	notice of the amount of covered loss or medical bills due unless
243	the statements or bills comply with this paragraph, and unless
244	the statements or bills are properly completed in their entirety
245	as to all material provisions, with all relevant information
246	being provided therein. If an insurer denies a claim under this
247	section due to the failure of a provider to provide a properly
248	completed form required by this paragraph, the insurer shall
249	notify the provider as to the provisions that were improperly
250	completed and shall give the provider 15 days to submit a
251	completed form.
252	(6)  DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.-
253	(b)  Every physician, hospital, clinic, or other medical
254	institution providing, before or after bodily injury upon which
255	a claim for personal injury protection insurance benefits is
256	based, any products, services, or accommodations in relation to
257	that or any other injury, or in relation to a condition claimed
258	to be connected with that or any other injury, shall, if
259	requested to do so by the insurer against whom the claim has
260	been made, furnish forthwith a written report of the history,
261	condition, treatment, dates, and costs of such treatment of the
262	injured person and why the items identified by the insurer were
263	reasonable in amount and medically necessary, together with a
264	sworn statement that the treatment or services rendered were
265	reasonable and necessary with respect to the bodily injury
266	sustained and identifying which portion of the expenses for such
267	treatment or services was incurred as a result of such bodily
268	injury, and produce forthwith, and permit the inspection and
269	copying of, his or her or its records regarding such history,
270	condition, treatment, dates, and costs of treatment if; provided
271	that this does shall not limit the introduction of evidence at
272	trial. Such sworn statement must shall read as follows: "Under
273	penalty of perjury, I declare that I have read the foregoing,
274	and the facts alleged are true, to the best of my knowledge and
275	belief." A No cause of action for violation of the physician-
276	patient privilege or invasion of the right of privacy may not be
277	brought shall be permitted against any physician, hospital,
278	clinic, or other medical institution complying with the
279	provisions of this section. The person requesting such records
280	and such sworn statement shall pay all reasonable costs
281	connected therewith. If an insurer makes a written request for
282	documentation or information under this paragraph within 30 days
283	after having received notice of the amount of a covered loss
284	under paragraph (4)(a), the amount or the partial amount that
285	which is the subject of the insurer's inquiry is shall become
286	overdue if the insurer does not pay in accordance with paragraph
287	(4)(b) or within 10 days after the insurer's receipt of the
288	requested documentation or information, whichever occurs later.
289	For purposes of this paragraph, the term "receipt" includes, but
290	is not limited to, inspection and copying pursuant to this
291	paragraph. An Any insurer that requests documentation or
292	information pertaining to reasonableness of charges or medical
293	necessity under this paragraph without a reasonable basis for
294	such requests as a general business practice is engaging in an
295	unfair trade practice under the insurance code.
296	1.  If an insured seeking to recover benefits under ss.
297	627.730-627.7405 assigns the contractual right to those benefits
298	or the payment of those benefits to any person or entity, the
299	assignee shall comply with the terms of the policy. In all
300	circumstances, the assignee shall be obligated to cooperate
301	under the policy, which includes, but is not limited to,
302	participation in an examination under oath. For time spent in an
303	examination under oath, the assignee is entitled to reasonable
304	compensation from the insurer. Compliance with this paragraph is
305	a condition precedent to the recovery of benefits under ss.
306	627.730-627.7405. If an insurer requests an examination under
307	oath of a medical provider, the provider must produce those
308	individuals with the most knowledge of the issues identified by
309	the insurer in the request for examination under oath. All
310	claimants must produce and provide for inspection all documents
311	requested by the insurer that are reasonably obtainable by the
312	claimant. Examinations under oath may be recorded by audio,
313	video, court reporter, or any combination thereof.
314	2.  Prior to requesting that an assignee participate in an
315	examination under oath, the insurer must provide a written
316	request of the assignee for all information that the insurer
317	believes is necessary to the processing of the claim, including
318	the information contemplated in subparagraph 1. An assignee is
319	not relieved from the provisions of this subparagraph simply by
320	providing the information contemplated in subparagraph 1.
321	3.  Any insurer that, as a general practice, requests
322	examinations under oath without a reasonable basis is engaging
323	in an unfair and deceptive trade practice.
324	(7)  MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
325	REPORTS.-
326	(b)  If requested by the person examined, a party causing
327	an examination to be made shall deliver to him or her a copy of
328	every written report concerning the examination rendered by an
329	examining physician, at least one of which reports must set out
330	the examining physician's findings and conclusions in detail.
331	After such request and delivery, the party causing the
332	examination to be made is entitled, upon request, to receive
333	from the person examined every written report available to him
334	or her or his or her representative concerning any examination,
335	previously or thereafter made, of the same mental or physical
336	condition. By requesting and obtaining a report of the
337	examination so ordered, or by taking the deposition of the
338	examiner, the person examined waives any privilege he or she may
339	have, in relation to the claim for benefits, regarding the
340	testimony of every other person who has examined, or may
341	thereafter examine, him or her in respect to the same mental or
342	physical condition. If a person unreasonably refuses to submit
343	to an examination, the personal injury protection carrier is no
344	longer liable for subsequent personal injury protection benefits
345	incurred after the date of the requested examination. Failure to
346	appear for an examination raises a rebuttable presumption that
347	such failure was unreasonable. Submission to an examination is a
348	condition precedent to receiving benefits.
349	(8)  APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
350	FEES.-With respect to any dispute under the provisions of ss.
351	627.730-627.7405 between the insured and the insurer, or between
352	an assignee of an insured's rights and the insurer, the
353	provisions of s. 627.428 shall apply, except as provided in
354	subsections (10) and (15) and except that any attorney's fees
355	recovered are limited to the lesser of $10,000 or three times
356	any disputed amount recovered by the attorney under ss. 627.730-
357	627.7405. Attorney's fees in a class action under ss. 627.730-
358	627.7405 are limited to the lesser of $50,000 or three times the
359	total of any disputed amount recovered in the class action
360	proceeding.
361	(17)  ATTORNEY'S FEES.-Notwithstanding s. 627.428, the
362	attorney's fees recovered under ss. 627.730-627.7405 shall be
363	calculated without regard to any contingency risk multiplier.
364	(18)  ARBITRATION.-In order to provide for an expedited,
365	cost-effective, and fair resolution of disputes arising from
366	contracts for personal injury protection benefits, an insurer
367	may offer a policy that requires or allows the insurer or
368	claimant to demand arbitration of any claims dispute involving
369	personal injury protection benefits prior to filing a lawsuit
370	and in lieu of litigation. Arbitration is subject to the Florida
371	Arbitration Code, except as otherwise provided in this section.
372	In addition:
373	(a)  A demand for arbitration must be made in writing by
374	certified mail, and the arbitration must be held within 60 days
375	after the receipt of a request for arbitration. The 60-day
376	period may not be tolled for discovery of documents pursuant to
377	paragraph (d).
378	(b)  Arbitration shall take place in the county in which
379	the treatment was rendered. If treatment was rendered outside
380	the state, arbitration shall take place in the county in which
381	the insured resides unless the parties agree to another
382	location.
383	(c)  The arbitration shall be conducted by a single
384	arbitrator selected by the chief judge of the judicial circuit
385	in which the arbitration is being held.
386	(d)1.  The claimant shall make available for inspection or
387	copying the medical and other records on which the claimant
388	intends to rely at arbitration, upon written request by the
389	insurer or his or her attorney, within 15 days after receipt of
390	such request.
391	2.  The insurer shall make available for inspection or
392	copying all documents, records, or information upon which it is
393	relying in adjusting or rejecting the claim, upon written
394	request by the claimant or his or her attorney, within 10 days
395	after receipt of such request.
396	3.  Discovery of insurer documents, records, or information
397	shall be limited to those relating to insurance coverage. The
398	insurer is not required to produce claims-privileged items,
399	underwriting files, or documents that it does not intend to rely
400	on at arbitration.
401	4.  There shall be no discovery relating to general claims-
402	handling practices.
403	(e)  The decision of the arbitrator shall be set forth in
404	writing and furnished to each party within 30 days after the
405	arbitration. The decision shall be binding on each party unless
406	challenged pursuant to paragraph (g). An arbitration award may
407	not exceed the applicable limits of coverage remaining on the
408	policy.
409	(f)  The claimant is entitled to reimbursement of
410	attorney's fees directly associated with the arbitration,
411	subject to subsection (8). The award of fees must be set forth
412	in the arbitration decision. The insurer shall bear all
413	reasonable costs directly associated with the arbitration
414	process.
415	(g)1.  A party may challenge the arbitration decision by
416	filing a complaint in circuit court within 20 days after the
417	receipt of the arbitration decision.
418	2.  Review of the arbitration shall be de novo.
419	3.  Section 627.428 does not apply, and interest on the
420	amount in dispute may not accrue during the course of
421	litigation, if the insurer has tendered payment of the amount of
422	the arbitration award to the claimant.
423	Section 5.  This act shall take effect July 1, 2011.

CODING: Words stricken are deletions; words underlined are additions.