Florida Senate - 2017                                     SB 262
       By Senator Steube
       23-00399B-17                                           2017262__
    1                        A bill to be entitled                      
    2         An act relating to health insurance; amending s.
    3         641.19, F.S.; revising definitions; amending s.
    4         641.51, F.S.; deleting a provision that provides that
    5         health maintenance organizations are not vicariously
    6         liable for certain medical negligence except under
    7         certain circumstances; amending s. 641.3917, F.S.;
    8         authorizing specified persons to bring a civil action
    9         against a health maintenance organization for certain
   10         violations; providing for construction; specifying a
   11         health maintenance organization’s liability for such
   12         violations; repealing s. 768.0981, F.S., relating to a
   13         limitation on actions against insurers, prepaid
   14         limited health service organizations, health
   15         maintenance organizations, or prepaid health clinics;
   16         providing applicability; providing an effective date.
   18  Be It Enacted by the Legislature of the State of Florida:
   20         Section 1. Subsections (11), (12), and (18) of section
   21  641.19, Florida Statutes, are amended to read:
   22         641.19 Definitions.—As used in this part, the term:
   23         (11) “Health maintenance contract” means any contract
   24  entered into by a health maintenance organization with a
   25  subscriber or group of subscribers to provide coverage for
   26  comprehensive health care services in exchange for a prepaid per
   27  capita or prepaid aggregate fixed sum.
   28         (12) “Health maintenance organization” means any
   29  organization authorized under this part which:
   30         (a) Provides, through arrangements with other persons,
   31  emergency care;, inpatient hospital services;, physician care,
   32  including care provided by physicians licensed under chapters
   33  458, 459, 460, and 461;, ambulatory diagnostic treatment;, and
   34  preventive health care services.
   35         (b) Provides, either directly or through arrangements with
   36  other persons, health care services to persons enrolled with
   37  such organization, on a prepaid per capita or prepaid aggregate
   38  fixed-sum basis.
   39         (c) Provides, either directly or through arrangements with
   40  other persons, comprehensive health care services which
   41  subscribers are entitled to receive pursuant to a contract.
   42         (d) Provides physician services, by physicians licensed
   43  under chapters 458, 459, 460, and 461, directly through
   44  physicians who are either employees or partners of such
   45  organization or under arrangements with a physician or any group
   46  of physicians.
   47         (e) If offering services through a managed care system, has
   48  a system in which a primary physician licensed under chapter
   49  458, chapter 459, chapter 460, or chapter 461 is designated for
   50  each subscriber upon request of a subscriber requesting service
   51  by a physician licensed under any of those chapters, and is
   52  responsible for coordinating the health care of the subscriber
   53  of the respectively requested service and for referring the
   54  subscriber to other providers of the same discipline when
   55  necessary. Each female subscriber may select as her primary
   56  physician an obstetrician/gynecologist who has agreed to serve
   57  as a primary physician and is in the health maintenance
   58  organization’s provider network.
   60  Except in cases in which the health care provider is an employee
   61  of the health maintenance organization, the fact that the health
   62  maintenance organization arranges for the provision of health
   63  care services under this chapter does not create an actual
   64  agency, apparent agency, or employer-employee relationship
   65  between the health care provider and the health maintenance
   66  organization for purposes of vicarious liability for the medical
   67  negligence of the health care provider.
   68         (18) “Subscriber” means an entity or individual who has
   69  contracted, or on whose behalf a contract has been entered into,
   70  with a health maintenance organization for health care services
   71  coverage or other persons who also receive health care services
   72  coverage as a result of the contract.
   73         Section 2. Subsection (3) of section 641.51, Florida
   74  Statutes, is amended to read:
   75         641.51 Quality assurance program; second medical opinion
   76  requirement.—
   77         (3) The health maintenance organization shall not have the
   78  right to control the professional judgment of a physician
   79  licensed under chapter 458, chapter 459, chapter 460, or chapter
   80  461 concerning the proper course of treatment of a subscriber.
   81  However, this subsection shall not be considered to restrict a
   82  utilization management program established by an organization or
   83  to affect an organization’s decision as to payment for covered
   84  services. Except in cases in which the health care provider is
   85  an employee of the health maintenance organization, the health
   86  maintenance organization shall not be vicariously liable for the
   87  medical negligence of the health care provider, whether such
   88  claim is alleged under a theory of actual agency, apparent
   89  agency, or employer-employee relationship.
   90         Section 3. Section 641.3917, Florida Statutes, is amended
   91  to read:
   92         641.3917 Civil liability.—
   93         (1) The provisions of this part are cumulative to rights
   94  under the general civil and common law, and no action of the
   95  department or office shall abrogate such rights to damage or
   96  other relief in any court.
   97         (2)Any person to whom a duty is owed may bring a civil
   98  action against a health maintenance organization when such
   99  person suffers damages as a result of the health maintenance
  100  organization’s:
  101         (a) Violation of s. 641.3155, s. 641.3903(5), (10), (12),
  102  (13), or (14), or s. 641.51; or
  103         (b) Failure to provide a covered service, when the health
  104  maintenance organization in good faith should have provided such
  105  service had it acted fairly and reasonably toward the subscriber
  106  or enrollee and with due regard for his or her interests, and
  107  such service is medically reasonable or necessary in the
  108  independent medical judgment of a treating physician under
  109  contract with, or another physician authorized by, the health
  110  maintenance organization.
  112  A person bringing an action under this subsection need not prove
  113  that such act was committed or performed with such frequency as
  114  to indicate a general business practice.
  115         (3) The health maintenance organization is liable for all
  116  of the claimant’s damages or $500 per violation, whichever is
  117  greater. The court may also award compensatory damages,
  118  including, but not limited to, damages for mental anguish, loss
  119  of dignity, and any other intangible injuries, and punitive
  120  damages. In an action or proceeding brought under this
  121  subsection, the court shall award a prevailing plaintiff
  122  reasonable attorney fees as part of the costs.
  123         Section 4. Section 768.0981, Florida Statutes, is repealed.
  124         Section 5. The amendments to ss. 641.19, 641.51, and
  125  641.3917, Florida Statutes, made by this act and the repeal of
  126  s. 768.0981, Florida Statutes, by this act apply to causes of
  127  action accruing on or after the effective date of this act.
  128         Section 6. This act shall take effect October 1, 2017.