Senate Bill 2154

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    Florida Senate - 2000                                  SB 2154

    By Senator Latvala





    19-33A-00

  1                      A bill to be entitled

  2         An act relating to health care; amending s.

  3         455.667, F.S.; allowing defendant health care

  4         providers or their representatives to interview

  5         certain other health care providers; providing

  6         restrictions; amending s. 641.28, F.S.;

  7         revising award of attorney's fees in civil

  8         actions under certain circumstances; amending

  9         s. 641.3917, F.S.; authorizing civil actions

10         against health maintenance organizations by

11         certain persons under certain circumstances;

12         providing requirements and procedures;

13         providing for liability for damages and

14         attorney's fees; prohibiting punitive damages

15         under certain circumstances; requiring the

16         advance posting of discovery costs; amending s.

17         440.11, F.S.; establishing exclusive liability

18         of health maintenance organizations; providing

19         application; providing a legislative

20         declaration; providing appropriation; providing

21         an effective date.

22

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

24

25         Section 1.  Subsection (19) is added to section

26  455.667, Florida Statutes, to read:

27         455.667  Ownership and control of patient records;

28  report or copies of records to be furnished.--

29         (19)  Notwithstanding any other provision of law, when

30  an action is brought after July 1, 2000, for damages resulting

31  from personal injury or death caused by the negligence of a

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    Florida Senate - 2000                                  SB 2154
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  1  health care provider as defined in s. 766.101, the defendant

  2  health care provider alleged to be responsible for the injury,

  3  or the defendant health care provider's insurer or legal

  4  representative, may interview ex parte, as set forth in this

  5  paragraph, any other health care provider involved in the

  6  patient's care. Such an interview may occur only after notice

  7  is provided to the claimant's attorney and must be limited to

  8  issues of causation, the claimant's current physical

  9  condition, and the mental impressions of the care and

10  treatment rendered by the defendant health care provider or

11  any other health care provider alleged to be responsible for

12  the patient's injury or death. Such interviews with a

13  claimant's treating physician may occur only after the

14  claimant has given notice of intent to initiate a claim for

15  medical malpractice and before the dismissal, settlement, or

16  other final resolution of the claim.

17         Section 2.  Section 641.28, Florida Statutes, is

18  amended to read:

19         641.28  Civil remedy.--

20         (1)  In any civil action brought to enforce the terms

21  and conditions of a health maintenance organization contract:

22         (a)  If the civil action is filed before or within 60

23  days after the subscriber or enrollee filed a notice of intent

24  to sue with the statewide provider and subscriber assistance

25  program established pursuant to s. 408.7056 or a notice

26  pursuant to s. 641.3917, the prevailing party is entitled to

27  recover reasonable attorney's fees and court costs.

28         (b)  If the civil action is filed more than 60 days

29  after the subscriber or enrollee filed a notice of intent to

30  sue with the statewide provider and subscriber assistance

31  program established pursuant to s. 408.7056 or a notice

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    Florida Senate - 2000                                  SB 2154
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  1  pursuant to s. 641.3917, and the subscriber or enrollee

  2  receives a final judgment or decree against the health

  3  maintenance organization in favor of the subscriber or

  4  enrollee, the court shall enter a judgment or decree against

  5  the health maintenance organization in favor of the subscriber

  6  or enrollee for reasonable attorney's fees and court costs.

  7         (2)  This section shall not be construed to authorize a

  8  civil action against the department, its employees, or the

  9  Insurance Commissioner or against the Agency for Health Care

10  Administration, its employees, or the director of the agency.

11         Section 3.  Paragraphs (c), (d), and (e) are added to

12  subsection (10) of section 641.3903, Florida Statutes, and

13  subsection (15) is added to that section, to read:

14         641.3903  Unfair methods of competition and unfair or

15  deceptive acts or practices defined.--The following are

16  defined as unfair methods of competition and unfair or

17  deceptive acts or practices:

18         (10)  ILLEGAL DEALINGS IN PREMIUMS; EXCESS OR REDUCED

19  CHARGES FOR HEALTH MAINTENANCE COVERAGE.--

20         (c)  Cancelling or otherwise terminating any health

21  maintenance contract or coverage, or requiring execution of a

22  consent to rate endorsement, during the stated contract term

23  for the purpose of offering to issue, or issuing, a similar or

24  identical contract to the same subscriber or enrollee with the

25  same exposure at a higher premium rate or continuing an

26  existing contract with the same exposure at an increased

27  premium.

28         (d)  Issuing a nonrenewal notice on any health

29  maintenance organization contract, or requiring execution of a

30  consent to rate endorsement, for the purpose of offering to

31  issue, or issuing, a similar or identical contract to the same

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    Florida Senate - 2000                                  SB 2154
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  1  subscriber or enrollee at a higher premium rate or continuing

  2  an existing contract at an increased premium without meeting

  3  any applicable notice requirements.

  4         (e)  Cancelling or issuing a nonrenewal notice on any

  5  health maintenance organization contract without complying

  6  with any applicable cancellation or nonrenewal provision

  7  required under the Florida Insurance Code.

  8         (15)  REFUSAL TO COVER.--In addition to other

  9  provisions of this code, the refusal to cover, or continue to

10  cover, any individual solely because of:

11         (a)  Race, color, creed, marital status, sex, or

12  national origin;

13         (b)  The residence, age, or lawful occupation of the

14  individual, unless there is a reasonable relationship between

15  the residence, age, or lawful occupation of the individual and

16  the coverage issued or to be issued; or

17         (c)  The fact that the enrollee or applicant had been

18  previously refused insurance coverage or health maintenance

19  organization coverage by any insurer or health maintenance

20  organization when such refusal to cover or continue to cover

21  for this reason occurs with such frequency as to indicate a

22  general business practice.

23         Section 4.  Section 641.3917, Florida Statutes, is

24  amended to read:

25         641.3917  Civil liability.--The provisions of this part

26  are cumulative to rights under the general civil and common

27  law, and no action of the department shall abrogate such

28  rights to damage or other relief in any court.

29         (1)  Any person to whom a duty is owed may bring a

30  civil action against a health maintenance organization when

31  such person suffers damages as a result of:

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    Florida Senate - 2000                                  SB 2154
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  1         (a)  A violation of s. 641.3903(5)(a), (b), (c)1.-7.,

  2  (10), or (15) by the health maintenance organization; or

  3         (b)  The health maintenance organization's failure to

  4  provide a covered service when in good faith the health

  5  maintenance organization should have provided the service if

  6  it had acted fairly and honestly toward its subscriber or

  7  enrollee and with due regard for his or her interests and, in

  8  the independent medical judgment of a contract treating

  9  physician or other physician authorized by the health

10  maintenance organization, the service is medically necessary.

11

12  However, a person pursuing a remedy under this section need

13  not prove that such acts were committed or performed with such

14  frequency as to indicate a general business practice.

15         (2)(a)  As a condition precedent to bringing an action

16  under this section, the department and the health maintenance

17  organization must have been given 60 days' written notice of

18  the violation.  If the department returns a notice for lack of

19  specificity, the 60-day time period does not begin until a

20  proper notice is filed.

21         (b)  The notice must be on a form provided by the

22  department and must state with specificity the following

23  information and such other information as the department

24  requires:

25         1.  The provision of law, including the specific

26  language of the law, which the health maintenance organization

27  has allegedly violated.

28         2.  The facts and circumstances giving rise to the

29  violation.

30         3.  The name of any individual involved in the

31  violation.

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  1         4.  Any reference to specific contract language that is

  2  relevant to the violation.

  3         5.  A statement that the notice is given in order to

  4  perfect the right to pursue the civil remedy authorized by

  5  this section.

  6         (c)  Within 20 days after receipt of the notice, the

  7  department may return any notice that does not provide the

  8  specific information required by this section, and the

  9  department shall indicate the specific deficiencies contained

10  in the notice.  A determination by the department to return a

11  notice for lack of specificity is exempt from the requirements

12  of chapter 120.

13         (d)  No action shall lie under this section if, within

14  60 days after filing notice, the damages are paid or the

15  circumstances giving rise to the violation are corrected.

16         (e)  The health maintenance organization that is the

17  recipient of a notice filed under this section shall report to

18  the department on the disposition of the alleged violation.

19         (f)  The applicable statute of limitations for an

20  action under this section shall be tolled for a period of 65

21  days by the mailing of the notice required by this subsection

22  or the mailing of a subsequent notice required by this

23  subsection.

24         (3)  Upon adverse adjudication at trial or upon appeal,

25  the health maintenance organization is liable for damages,

26  together with court costs and reasonable attorney's fees,

27  incurred by the plaintiff.

28         (4)  Punitive damages shall not be awarded under this

29  section unless the acts giving rise to the violation occur

30  with such frequency as to indicate a general business practice

31  and are either willful, wanton, and malicious or are in

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    Florida Senate - 2000                                  SB 2154
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  1  reckless disregard for the rights of any subscriber or

  2  enrollee.  Any person who pursues a claim under this

  3  subsection shall post, in advance, the costs of discovery.

  4  Such costs shall be awarded to the health maintenance

  5  organization if no punitive damages are awarded to the

  6  plaintiff.

  7         (5)  This section shall not be construed to authorize a

  8  class action suit against a health maintenance organization or

  9  a civil action against the department, its employees, or the

10  Insurance Commissioner, or against the Agency for Health Care

11  Administration, its employees, or the director of the agency

12  or to create a cause of action when a health maintenance

13  organization refuses to pay a claim for reimbursement on the

14  grounds that the charge for a service was unreasonably high or

15  that the service provided was not medically necessary.

16         (6)(a)  The civil remedy specified in this section does

17  not preempt any other remedy or cause of action provided for

18  pursuant to any other law or pursuant to the common law of

19  this state.  Any person may obtain a judgment under either the

20  common law remedy of bad faith or the remedy provided in this

21  section, but is not entitled to a judgment under both

22  remedies.  This section does not create a common law cause of

23  action.  The damages recoverable under this section include

24  damages that are a reasonably foreseeable result of a

25  specified violation of this section by the health maintenance

26  organization and may include an award or judgment in an amount

27  that exceeds contract limits.

28         (b)  This section does not create a cause of action for

29  medical malpractice. Such an action is subject to the

30  provisions of chapter 766.

31

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  1         (c)  This section does not apply to the provision of

  2  medical care, treatment, or attendance pursuant to chapter

  3  440.

  4         Section 5.  Subsection (4) of section 440.11, Florida

  5  Statutes, is amended to read:

  6         440.11  Exclusiveness of liability.--

  7         (4)  Notwithstanding the provisions of s. 624.155 or s.

  8  641.3917, the liability of a carrier or a health maintenance

  9  organization to an employee or to anyone entitled to bring

10  suit in the name of the employee shall be as provided in this

11  chapter, which shall be exclusive and in place of all other

12  liability.

13         Section 6.  The Legislature finds that the provisions

14  of this bill will fulfill an important state interest.

15         Section 7.  There are hereby appropriated three

16  positions and $112,000 from the Insurance Commissioners'

17  Regulatory Trust Fund to the Department of Insurance for the

18  purposes of carrying out the provisions of this act.

19         Section 8.  This act shall take effect July 1, 2000.

20

21            *****************************************

22                          SENATE SUMMARY

23    Allows a health care provider that is a defendant in a
      legal action that is based on a claim of the provider's
24    negligence causing personal injury or death to interview
      other providers that have provided health care to the
25    injured patient. Places restrictions on the subject
      matter and the timing of such interviews. Revises the
26    award of attorney's fees in civil actions brought to
      enforce health maintenance organization contracts.
27    Authorizes civil actions against health maintenance
      organizations by certain persons under certain
28    circumstances. Provides requirements and procedures.
      Provides for liability for damages and attorney's fees.
29    Prohibits the award of punitive damages under certain
      circumstances. Requires the advance posting of discovery
30    costs. Establishes exclusive liability of health
      maintenance organizations. Provides a legislative
31    declaration. Provides an appropriation.

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