SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
CHAMBER ACTION
Senate House
.
.
1 16/AD/2R .
05/01/2003 11:12 AM .
2 .
.
3 .
.
4 ______________________________________________________________
5
6
7
8
9
10 ______________________________________________________________
11 Senators Alexander, Bennett, Campbell and Smith moved the
12 following amendment:
13
14 Senate Amendment (with title amendment)
15 On page 33, line 27, through
16 page 75, line 15, delete those lines
17
18 and insert:
19 Section 9. Subsections (3), (4), (5), (6), (7), (8),
20 (10), (11), and (12) of section 627.736, Florida Statutes, are
21 amended, present subsection (13) of that section is
22 redesignated as subsection (14), and amended, and a new
23 subsection (13) is added to that section, to read:
24 627.736 Required personal injury protection benefits;
25 exclusions; priority; claims.--
26 (3) INSURED'S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN
27 TORT CLAIMS.--No insurer shall have a lien on any recovery in
28 tort by judgment, settlement, or otherwise for personal injury
29 protection benefits, whether suit has been filed or settlement
30 has been reached without suit. An injured party who is
31 entitled to bring suit under the provisions of ss.
1
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 627.730-627.7405, or his or her legal representative, shall
2 have no right to recover any damages for which personal injury
3 protection benefits are paid or payable. The plaintiff may
4 prove all of his or her special damages notwithstanding this
5 limitation, but if special damages are introduced in evidence,
6 the trier of facts, whether judge or jury, shall not award
7 damages for personal injury protection benefits paid or
8 payable. In all cases in which a jury is required to fix
9 damages, the court shall instruct the jury that the plaintiff
10 shall not recover such special damages for personal injury
11 protection benefits paid or payable.
12 (4) BENEFITS; WHEN DUE.--Benefits due from an insurer
13 under ss. 627.730-627.7405 shall be primary, except that
14 benefits received under any workers' compensation law shall be
15 credited against the benefits provided by subsection (1) and
16 shall be due and payable as loss accrues, upon receipt of
17 reasonable proof of such loss and the amount of expenses and
18 loss incurred which are covered by the policy issued under ss.
19 627.730-627.7405. When the Agency for Health Care
20 Administration provides, pays, or becomes liable for medical
21 assistance under the Medicaid program related to injury,
22 sickness, disease, or death arising out of the ownership,
23 maintenance, or use of a motor vehicle, benefits under ss.
24 627.730-627.7405 shall be subject to the provisions of the
25 Medicaid program.
26 (a) An insurer may require written notice to be given
27 as soon as practicable after an accident involving a motor
28 vehicle with respect to which the policy affords the security
29 required by ss. 627.730-627.7405.
30 (b) Personal injury protection insurance benefits paid
31 pursuant to this section shall be overdue if not paid within
2
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 30 days after the insurer is furnished written notice of the
2 fact of a covered loss and of the amount of same. If such
3 written notice is not furnished to the insurer as to the
4 entire claim, any partial amount supported by written notice
5 is overdue if not paid within 30 days after such written
6 notice is furnished to the insurer. Any part or all of the
7 remainder of the claim that is subsequently supported by
8 written notice is overdue if not paid within 30 days after
9 such written notice is furnished to the insurer. When an
10 insurer pays only a portion of a claim or rejects a claim, the
11 insurer shall provide at the time of the partial payment or
12 rejection an itemized specification of each item that the
13 insurer had reduced, omitted, or declined to pay and any
14 information that the insurer desires the claimant to consider
15 related to the medical necessity of the denied treatment or to
16 explain the reasonableness of the reduced charge, provided
17 that this shall not limit the introduction of evidence at
18 trial; and the insurer shall include the name and address of
19 the person to whom the claimant should respond and a claim
20 number to be referenced in future correspondence. However,
21 notwithstanding the fact that written notice has been
22 furnished to the insurer, any payment shall not be deemed
23 overdue when the insurer has reasonable proof to establish
24 that the insurer is not responsible for the payment. For the
25 purpose of calculating the extent to which any benefits are
26 overdue, payment shall be treated as being made on the date a
27 draft or other valid instrument which is equivalent to payment
28 was placed in the United States mail in a properly addressed,
29 postpaid envelope or, if not so posted, on the date of
30 delivery. This paragraph does not preclude or limit the
31 ability of the insurer to assert that the claim was unrelated,
3
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 was not medically necessary, or was unreasonable or that the
2 amount of the charge was in excess of that permitted under, or
3 in violation of, subsection (5). Such assertion by the insurer
4 may be made at any time, including after payment of the claim
5 or after the 30-day time period for payment set forth in this
6 paragraph.
7 (c) All overdue payments shall bear simple interest at
8 the rate established by the Comptroller under s. 55.03 or the
9 rate established in the insurance contract, whichever is
10 greater, for the year in which the payment became overdue,
11 calculated from the date the insurer was furnished with
12 written notice of the amount of covered loss. Interest shall
13 be due at the time payment of the overdue claim is made.
14 (d) The insurer of the owner of a motor vehicle shall
15 pay personal injury protection benefits for:
16 1. Accidental bodily injury sustained in this state by
17 the owner while occupying a motor vehicle, or while not an
18 occupant of a self-propelled vehicle if the injury is caused
19 by physical contact with a motor vehicle.
20 2. Accidental bodily injury sustained outside this
21 state, but within the United States of America or its
22 territories or possessions or Canada, by the owner while
23 occupying the owner's motor vehicle.
24 3. Accidental bodily injury sustained by a relative of
25 the owner residing in the same household, under the
26 circumstances described in subparagraph 1. or subparagraph 2.,
27 provided the relative at the time of the accident is domiciled
28 in the owner's household and is not himself or herself the
29 owner of a motor vehicle with respect to which security is
30 required under ss. 627.730-627.7405.
31 4. Accidental bodily injury sustained in this state by
4
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 any other person while occupying the owner's motor vehicle or,
2 if a resident of this state, while not an occupant of a
3 self-propelled vehicle, if the injury is caused by physical
4 contact with such motor vehicle, provided the injured person
5 is not himself or herself:
6 a. The owner of a motor vehicle with respect to which
7 security is required under ss. 627.730-627.7405; or
8 b. Entitled to personal injury benefits from the
9 insurer of the owner or owners of such a motor vehicle.
10 (e) If two or more insurers are liable to pay personal
11 injury protection benefits for the same injury to any one
12 person, the maximum payable shall be as specified in
13 subsection (1), and any insurer paying the benefits shall be
14 entitled to recover from each of the other insurers an
15 equitable pro rata share of the benefits paid and expenses
16 incurred in processing the claim.
17 (f) It is a violation of the insurance code for an
18 insurer to fail to timely provide benefits as required by this
19 section with such frequency as to constitute a general
20 business practice.
21 (g) Benefits shall not be due or payable to or on the
22 behalf of an insured person if that person has committed, by a
23 material act or omission, any insurance fraud relating to
24 personal injury protection coverage under his or her policy,
25 if the fraud is admitted to in a sworn statement by the
26 insured or if it is established in a court of competent
27 jurisdiction. Any insurance fraud shall void all coverage
28 arising from the claim related to such fraud under the
29 personal injury protection coverage of the insured person who
30 committed the fraud, irrespective of whether a portion of the
31 insured person's claim may be legitimate, and any benefits
5
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 paid prior to the discovery of the insured person's insurance
2 fraud shall be recoverable by the insurer from the person who
3 committed insurance fraud in their entirety. The prevailing
4 party is entitled to its costs and attorney's fees in any
5 action in which it prevails in an insurer's action to enforce
6 its right of recovery under this paragraph.
7 (5) CHARGES FOR TREATMENT OF INJURED PERSONS.--
8 (a) Any physician, hospital, clinic, or other person
9 or institution lawfully rendering treatment to an injured
10 person for a bodily injury covered by personal injury
11 protection insurance may charge the insurer and injured party
12 only a reasonable amount pursuant to this section for the
13 services and supplies rendered, and the insurer providing such
14 coverage may pay for such charges directly to such person or
15 institution lawfully rendering such treatment, if the insured
16 receiving such treatment or his or her guardian has
17 countersigned the properly completed invoice, bill, or claim
18 form approved by the Department of Insurance upon which such
19 charges are to be paid for as having actually been rendered,
20 to the best knowledge of the insured or his or her guardian.
21 In no event, however, may such a charge be in excess of the
22 amount the person or institution customarily charges for like
23 services or supplies in cases involving no insurance. With
24 respect to a determination of whether a charge for a
25 particular service, treatment, or otherwise is reasonable,
26 consideration may be given to evidence of usual and customary
27 charges and payments accepted by the provider involved in the
28 dispute, and reimbursement levels in the community and various
29 federal and state medical fee schedules applicable to
30 automobile and other insurance coverages, and other
31 information relevant to the reasonableness of the
6
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 reimbursement for the service, treatment or supply.
2 (b)1. An insurer or insured is not required to pay a
3 claim or charges:
4 a. Made by a broker or by a person making a claim on
5 behalf of a broker;.
6 b. For any service or treatment that was not lawful at
7 the time rendered;
8 c. To any person who knowingly submits a false or
9 misleading statement relating to the claim or charges;
10 d. With respect to a bill or statement that does not
11 substantially meet the applicable requirements of paragraph
12 (d);
13 e. For any treatment or service that is upcoded, or
14 that is unbundled when such treatment or services should be
15 bundled, in accordance with paragraph (d). To facilitate
16 prompt payment of lawful services, an insurer may change codes
17 that it determines to have been improperly or incorrectly
18 upcoded or unbundled, and may make payment based on the
19 changed codes, without affecting the right of the provider to
20 dispute the change by the insurer, provided that before doing
21 so, the insurer must contact the health care provider and
22 discuss the reasons for the insurer's change and the health
23 care provider's reason for the coding, or make a reasonable
24 good-faith effort to do so, as documented in the insurer's
25 file; and
26 f. For medical services or treatment billed by a
27 physician and not provided in a hospital unless such services
28 are rendered by the physician or are incident to his or her
29 professional services and are included on the physician's
30 bill, including documentation verifying that the physician is
31 responsible for the medical services that were rendered and
7
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 billed.
2 2. Charges for medically necessary cephalic
3 thermograms, peripheral thermograms, spinal ultrasounds,
4 extremity ultrasounds, video fluoroscopy, and surface
5 electromyography shall not exceed the maximum reimbursement
6 allowance for such procedures as set forth in the applicable
7 fee schedule or other payment methodology established pursuant
8 to s. 440.13.
9 3. Allowable amounts that may be charged to a personal
10 injury protection insurance insurer and insured for medically
11 necessary nerve conduction testing when done in conjunction
12 with a needle electromyography procedure and both are
13 performed and billed solely by a physician licensed under
14 chapter 458, chapter 459, chapter 460, or chapter 461 who is
15 also certified by the American Board of Electrodiagnostic
16 Medicine or by a board recognized by the American Board of
17 Medical Specialties or the American Osteopathic Association or
18 who holds diplomate status with the American Chiropractic
19 Neurology Board or its predecessors shall not exceed 200
20 percent of the allowable amount under Medicare Part B for year
21 2001, for the area in which the treatment was rendered,
22 adjusted annually to reflect the changes in the annual Medical
23 Care Item of the Consumer Price Index for All Urban Consumers
24 in the South Region as determined by the Bureau of Labor
25 Statistics of the United States Department of Labor for the
26 12-month period ending June 30 of that year by an additional
27 amount equal to the medical Consumer Price Index for Florida.
28 4. Allowable amounts that may be charged to a personal
29 injury protection insurance insurer and insured for medically
30 necessary nerve conduction testing that does not meet the
31 requirements of subparagraph 3. shall not exceed the
8
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 applicable fee schedule or other payment methodology
2 established pursuant to s. 440.13.
3 5. Effective upon this act becoming a law and before
4 November 1, 2001, allowable amounts that may be charged to a
5 personal injury protection insurance insurer and insured for
6 magnetic resonance imaging services shall not exceed 200
7 percent of the allowable amount under Medicare Part B for year
8 2001, for the area in which the treatment was rendered.
9 Beginning November 1, 2001, allowable amounts that may be
10 charged to a personal injury protection insurance insurer and
11 insured for magnetic resonance imaging services shall not
12 exceed 175 percent of the allowable amount under Medicare Part
13 B for year 2001, for the area in which the treatment was
14 rendered, adjusted annually to reflect the changes in the
15 annual Medical Care Item of the Consumer Price Index for All
16 Urban Consumers in the South Region as determined by the
17 Bureau of Labor Statistics of the United States Department of
18 Labor for the 12-month period ending June 30 of that year by
19 an additional amount equal to the medical Consumer Price Index
20 for Florida, except that allowable amounts that may be charged
21 to a personal injury protection insurance insurer and insured
22 for magnetic resonance imaging services provided in facilities
23 accredited by the American College of Radiology or the Joint
24 Commission on Accreditation of Healthcare Organizations shall
25 not exceed 200 percent of the allowable amount under Medicare
26 Part B for year 2001, for the area in which the treatment was
27 rendered, adjusted annually to reflect the changes in the
28 annual Medical Care Item of the Consumer Price Index for All
29 Urban Consumers in the South Region as determined by the
30 Bureau of Labor Statistics of the United States Department of
31 Labor for the 12-month period ending June 30 of that year by
9
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 an additional amount equal to the medical Consumer Price Index
2 for Florida. This paragraph does not apply to charges for
3 magnetic resonance imaging services and nerve conduction
4 testing for inpatients and emergency services and care as
5 defined in chapter 395 rendered by facilities licensed under
6 chapter 395.
7 6. The Department of Health, in consultation with the
8 appropriate professional licensing boards, shall adopt, by
9 rule, a list of diagnostic tests deemed not be medically
10 necessary for use in the treatment of persons sustaining
11 bodily injury covered by personal injury protection benefits
12 under this section. The initial list shall be adopted by
13 January 1, 2004, and shall be revised from time to time as
14 determined by the Department of Health, in consultation with
15 the respective professional licensing boards. Inclusion of a
16 test on the list of invalid diagnostic tests shall be based on
17 lack of demonstrated medical value and a level of general
18 acceptance by the relevant provider community and shall not be
19 dependent for results entirely upon subjective patient
20 response. Notwithstanding its inclusion on a fee schedule in
21 this subsection, an insurer or insured is not required to pay
22 any charges or reimburse claims for any invalid diagnostic
23 test as determined by the Department of Health.
24 (c)1. With respect to any treatment or service, other
25 than medical services billed by a hospital or other provider
26 for emergency services as defined in s. 395.002 or inpatient
27 services rendered at a hospital-owned facility, the statement
28 of charges must be furnished to the insurer by the provider
29 and may not include, and the insurer is not required to pay,
30 charges for treatment or services rendered more than 35 days
31 before the postmark date of the statement, except for past due
10
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 amounts previously billed on a timely basis under this
2 paragraph, and except that, if the provider submits to the
3 insurer a notice of initiation of treatment within 21 days
4 after its first examination or treatment of the claimant, the
5 statement may include charges for treatment or services
6 rendered up to, but not more than, 75 days before the postmark
7 date of the statement. The injured party is not liable for,
8 and the provider shall not bill the injured party for, charges
9 that are unpaid because of the provider's failure to comply
10 with this paragraph. Any agreement requiring the injured
11 person or insured to pay for such charges is unenforceable.
12 2. If, however, the insured fails to furnish the
13 provider with the correct name and address of the insured's
14 personal injury protection insurer, the provider has 35 days
15 from the date the provider obtains the correct information to
16 furnish the insurer with a statement of the charges. The
17 insurer is not required to pay for such charges unless the
18 provider includes with the statement documentary evidence that
19 was provided by the insured during the 35-day period
20 demonstrating that the provider reasonably relied on erroneous
21 information from the insured and either:
22 a.1. A denial letter from the incorrect insurer; or
23 b.2. Proof of mailing, which may include an affidavit
24 under penalty of perjury, reflecting timely mailing to the
25 incorrect address or insurer.
26 3. For emergency services and care as defined in s.
27 395.002 rendered in a hospital emergency department or for
28 transport and treatment rendered by an ambulance provider
29 licensed pursuant to part III of chapter 401, the provider is
30 not required to furnish the statement of charges within the
31 time periods established by this paragraph; and the insurer
11
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 shall not be considered to have been furnished with notice of
2 the amount of covered loss for purposes of paragraph (4)(b)
3 until it receives a statement complying with paragraph (e), or
4 copy thereof, which specifically identifies the place of
5 service to be a hospital emergency department or an ambulance
6 in accordance with billing standards recognized by the Health
7 Care Finance Administration.
8 4. Each notice of insured's rights under s. 627.7401
9 must include the following statement in type no smaller than
10 12 points:
11 BILLING REQUIREMENTS.--Florida Statutes provide
12 that with respect to any treatment or services,
13 other than certain hospital and emergency
14 services, the statement of charges furnished to
15 the insurer by the provider may not include,
16 and the insurer and the injured party are not
17 required to pay, charges for treatment or
18 services rendered more than 35 days before the
19 postmark date of the statement, except for past
20 due amounts previously billed on a timely
21 basis, and except that, if the provider submits
22 to the insurer a notice of initiation of
23 treatment within 21 days after its first
24 examination or treatment of the claimant, the
25 statement may include charges for treatment or
26 services rendered up to, but not more than, 75
27 days before the postmark date of the statement.
28 (d) Every insurer shall include a provision in its
29 policy for personal injury protection benefits for binding
30 arbitration of any claims dispute involving medical benefits
31 arising between the insurer and any person providing medical
12
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 services or supplies if that person has agreed to accept
2 assignment of personal injury protection benefits. The
3 provision shall specify that the provisions of chapter 682
4 relating to arbitration shall apply. The prevailing party
5 shall be entitled to attorney's fees and costs. For purposes
6 of the award of attorney's fees and costs, the prevailing
7 party shall be determined as follows:
8 1. When the amount of personal injury protection
9 benefits determined by arbitration exceeds the sum of the
10 amount offered by the insurer at arbitration plus 50 percent
11 of the difference between the amount of the claim asserted by
12 the claimant at arbitration and the amount offered by the
13 insurer at arbitration, the claimant is the prevailing party.
14 2. When the amount of personal injury protection
15 benefits determined by arbitration is less than the sum of the
16 amount offered by the insurer at arbitration plus 50 percent
17 of the difference between the amount of the claim asserted by
18 the claimant at arbitration and the amount offered by the
19 insurer at arbitration, the insurer is the prevailing party.
20 3. When neither subparagraph 1. nor subparagraph 2.
21 applies, there is no prevailing party. For purposes of this
22 paragraph, the amount of the offer or claim at arbitration is
23 the amount of the last written offer or claim made at least 30
24 days prior to the arbitration.
25 4. In the demand for arbitration, the party requesting
26 arbitration must include a statement specifically identifying
27 the issues for arbitration for each examination or treatment
28 in dispute. The other party must subsequently issue a
29 statement specifying any other examinations or treatment and
30 any other issues that it intends to raise in the arbitration.
31 The parties may amend their statements up to 30 days prior to
13
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 arbitration, provided that arbitration shall be limited to
2 those identified issues and neither party may add additional
3 issues during arbitration.
4 (d)(e) All statements and bills for medical services
5 rendered by any physician, hospital, clinic, or other person
6 or institution shall be submitted to the insurer on a properly
7 completed Centers for Medicare and Medicaid Services (CMS)
8 Health Care Finance Administration 1500 form, UB 92 forms, or
9 any other standard form approved by the department for
10 purposes of this paragraph. All billings for such services
11 rendered by providers shall, to the extent applicable, follow
12 the Physicians' Current Procedural Terminology (CPT) or
13 Healthcare Correct Procedural Coding System (HCPCS), or ICD-9
14 in effect for the year in which services are rendered and
15 comply with the Centers for Medicare and Medicaid Services
16 (CMS) 1500 form instructions and the American Medical
17 Association Current Procedural Terminology (CPT) Editorial
18 Panel and Healthcare Correct Procedural Coding System (HCPCS).
19 All providers other than hospitals shall include on the
20 applicable claim form the professional license number of the
21 provider in the line or space provided for "Signature of
22 Physician or Supplier, Including Degrees or Credentials." In
23 determining compliance with applicable CPT and HCPCS coding,
24 guidance shall be provided by the Physicians' Current
25 Procedural Terminology (CPT) or the Healthcare Correct
26 Procedural Coding System (HCPCS) in effect for the year in
27 which services were rendered, the Office of the Inspector
28 General (OIG), Physicians Compliance Guidelines, and other
29 authoritative treatises designated by rule by the Agency for
30 Health Care Administration. No statement of medical services
31 may include charges for medical services of a person or entity
14
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 that performed such services without possessing the valid
2 licenses required to perform such services. For purposes of
3 paragraph (4)(b), an insurer shall not be considered to have
4 been furnished with notice of the amount of covered loss or
5 medical bills due unless the statements or bills comply with
6 this paragraph, and unless the statements or bills are
7 properly completed in their entirety as to all material
8 provisions, with all relevant information being provided
9 therein.
10 (e)1. At the initial treatment or service provided,
11 each physician, other licensed professional, clinic, or other
12 medical institution providing medical services upon which a
13 claim for personal injury protection benefits is based shall
14 require an insured person, or his or her guardian, to execute
15 a disclosure and acknowledgment form, which reflects at a
16 minimum that:
17 a. The insured, or his or her guardian, must
18 countersign the form attesting to the fact that the services
19 set forth therein were actually rendered;
20 b. The insured, or his or her guardian, has both the
21 right and affirmative duty to confirm that the services were
22 actually rendered;
23 c. The insured, or his or her guardian, was not
24 solicited by any person to seek any services from the medical
25 provider;
26 d. That the physician, other licensed professional,
27 clinic, or other medical institution rendering services for
28 which payment is being claimed explained the services to the
29 insured or his or her guardian; and
30 e. If the insured notifies the insurer in writing of a
31 billing error, the insured may be entitled to a certain
15
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 percentage of a reduction in the amounts paid by the insured's
2 motor vehicle insurer.
3 2. The physician, other licensed professional, clinic,
4 or other medical institution rendering services for which
5 payment is being claimed has the affirmative duty to explain
6 the services rendered to the insured, or his or her guardian,
7 so that the insured, or his or her guardian, countersigns the
8 form with informed consent.
9 3. Countersignature by the insured, or his or her
10 guardian, is not required for the reading of diagnostic tests
11 or other services that are of such a nature that they are not
12 required to be performed in the presence of the insured.
13 4. The licensed medical professional rendering
14 treatment for which payment is being claimed must sign, by his
15 or her own hand, the form complying with this paragraph.
16 5. The original completed disclosure and
17 acknowledgement form shall be furnished to the insurer
18 pursuant to paragraph (4)(b) and may not be electronically
19 furnished.
20 6. This disclosure and acknowledgement form is not
21 required for services billed by a provider for emergency
22 services as defined in s. 395.002, for emergency services and
23 care as defined in s. 395.002 rendered in a hospital emergency
24 department, or for transport and treatment rendered by an
25 ambulance provider licensed pursuant to part III of chapter
26 401.
27 7. The Financial Services Commission shall adopt, by
28 rule, a standard disclosure and acknowledgment form that shall
29 be used to fulfill the requirements of this paragraph,
30 effective 90 days after such form is adopted and becomes
31 final. The commission shall adopt a proposed rule by October
16
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 1, 2003. Until the rule is final, the provider may use a form
2 of its own which otherwise complies with the requirements of
3 this paragraph.
4 8. As used in this paragraph, "countersigned" means a
5 second or verifying signature, as on a previously signed
6 document, and is not satisfied by the statement "signature on
7 file" or any similar statement.
8 9. The requirements of this paragraph apply only with
9 respect to the initial treatment or service of the insured by
10 a provider. For subsequent treatments or service, the provider
11 must maintain a patient log signed by the patient, in
12 chronological order by date of service, that is consistent
13 with the services being rendered to the patient as claimed.
14 (f) Upon written notification by any person, an
15 insurer shall investigate any claim of improper billing by a
16 physician or other medical provider. The insurer shall
17 determine if the insured was properly billed for only those
18 services and treatments that the insured actually received. If
19 the insurer determines that the insured has been improperly
20 billed, the insurer shall notify the insured, the person
21 making the written notification and the provider of its
22 findings and shall reduce the amount of payment to the
23 provider by the amount determined to be improperly billed. If
24 a reduction is made due to such written notification by any
25 person, the insurer shall pay to the person 20 percent of the
26 amount of the reduction, up to $500. If the provider is
27 arrested due to the improper billing, then the insurer shall
28 pay to the person 40 percent of the amount of the reduction,
29 up to $500.
30 (h) An insurer may not systematically downcode with
31 the intent to deny reimbursement otherwise due. Such action
17
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 constitutes a material misrepresentation under s.
2 626.9541(1)(i)2.
3 (6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON;
4 DISPUTES.--
5 (a) Every employer shall, if a request is made by an
6 insurer providing personal injury protection benefits under
7 ss. 627.730-627.7405 against whom a claim has been made,
8 furnish forthwith, in a form approved by the department, a
9 sworn statement of the earnings, since the time of the bodily
10 injury and for a reasonable period before the injury, of the
11 person upon whose injury the claim is based.
12 (b) Every physician, hospital, clinic, or other
13 medical institution providing, before or after bodily injury
14 upon which a claim for personal injury protection insurance
15 benefits is based, any products, services, or accommodations
16 in relation to that or any other injury, or in relation to a
17 condition claimed to be connected with that or any other
18 injury, shall, if requested to do so by the insurer against
19 whom the claim has been made, furnish forthwith a written
20 report of the history, condition, treatment, dates, and costs
21 of such treatment of the injured person and why the items
22 identified by the insurer were reasonable in amount and
23 medically necessary, together with a sworn statement that the
24 treatment or services rendered were reasonable and necessary
25 with respect to the bodily injury sustained and identifying
26 which portion of the expenses for such treatment or services
27 was incurred as a result of such bodily injury, and produce
28 forthwith, and permit the inspection and copying of, his or
29 her or its records regarding such history, condition,
30 treatment, dates, and costs of treatment; provided that this
31 shall not limit the introduction of evidence at trial. Such
18
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 sworn statement shall read as follows: "Under penalty of
2 perjury, I declare that I have read the foregoing, and the
3 facts alleged are true, to the best of my knowledge and
4 belief." No cause of action for violation of the
5 physician-patient privilege or invasion of the right of
6 privacy shall be permitted against any physician, hospital,
7 clinic, or other medical institution complying with the
8 provisions of this section. The person requesting such records
9 and such sworn statement shall pay all reasonable costs
10 connected therewith. If an insurer makes a written request for
11 documentation or information under this paragraph within 30
12 days after having received notice of the amount of a covered
13 loss under paragraph (4)(a), the amount or the partial amount
14 which is the subject of the insurer's inquiry shall become
15 overdue if the insurer does not pay in accordance with
16 paragraph (4)(b) or within 10 days after the insurer's receipt
17 of the requested documentation or information, whichever
18 occurs later. For purposes of this paragraph, the term
19 "receipt" includes, but is not limited to, inspection and
20 copying pursuant to this paragraph. Any insurer that requests
21 documentation or information pertaining to reasonableness of
22 charges or medical necessity under this paragraph without a
23 reasonable basis for such requests as a general business
24 practice is engaging in an unfair trade practice under the
25 insurance code.
26 (c) In the event of any dispute regarding an insurer's
27 right to discovery of facts under this section about an
28 injured person's earnings or about his or her history,
29 condition, or treatment, or the dates and costs of such
30 treatment, the insurer may petition a court of competent
31 jurisdiction to enter an order permitting such discovery. The
19
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 order may be made only on motion for good cause shown and upon
2 notice to all persons having an interest, and it shall specify
3 the time, place, manner, conditions, and scope of the
4 discovery. Such court may, in order to protect against
5 annoyance, embarrassment, or oppression, as justice requires,
6 enter an order refusing discovery or specifying conditions of
7 discovery and may order payments of costs and expenses of the
8 proceeding, including reasonable fees for the appearance of
9 attorneys at the proceedings, as justice requires.
10 (d) The injured person shall be furnished, upon
11 request, a copy of all information obtained by the insurer
12 under the provisions of this section, and shall pay a
13 reasonable charge, if required by the insurer.
14 (e) Notice to an insurer of the existence of a claim
15 shall not be unreasonably withheld by an insured.
16 (7) MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
17 REPORTS.--
18 (a) Whenever the mental or physical condition of an
19 injured person covered by personal injury protection is
20 material to any claim that has been or may be made for past or
21 future personal injury protection insurance benefits, such
22 person shall, upon the request of an insurer, submit to mental
23 or physical examination by a physician or physicians. The
24 costs of any examinations requested by an insurer shall be
25 borne entirely by the insurer. Such examination shall be
26 conducted within the municipality where the insured is
27 receiving treatment, or in a location reasonably accessible to
28 the insured, which, for purposes of this paragraph, means any
29 location within the municipality in which the insured resides,
30 or any location within 10 miles by road of the insured's
31 residence, provided such location is within the county in
20
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 which the insured resides. If the examination is to be
2 conducted in a location reasonably accessible to the insured,
3 and if there is no qualified physician to conduct the
4 examination in a location reasonably accessible to the
5 insured, then such examination shall be conducted in an area
6 of the closest proximity to the insured's residence. Personal
7 protection insurers are authorized to include reasonable
8 provisions in personal injury protection insurance policies
9 for mental and physical examination of those claiming personal
10 injury protection insurance benefits. An insurer may not
11 withdraw payment of a treating physician without the consent
12 of the injured person covered by the personal injury
13 protection, unless the insurer first obtains a valid report by
14 a Florida physician licensed under the same chapter as the
15 treating physician whose treatment authorization is sought to
16 be withdrawn, stating that treatment was not reasonable,
17 related, or necessary. A valid report is one that is prepared
18 and signed by the physician examining the injured person or
19 reviewing the treatment records of the injured person and is
20 factually supported by the examination and treatment records
21 if reviewed and that has not been modified by anyone other
22 than the physician. The physician preparing the report must be
23 in active practice, unless the physician is physically
24 disabled. Active practice means that during the 3 years
25 immediately preceding the date of the physical examination or
26 review of the treatment records the physician must have
27 devoted professional time to the active clinical practice of
28 evaluation, diagnosis, or treatment of medical conditions or
29 to the instruction of students in an accredited health
30 professional school or accredited residency program or a
31 clinical research program that is affiliated with an
21
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 accredited health professional school or teaching hospital or
2 accredited residency program. The physician preparing a report
3 at the request of an insurer and physicians rendering expert
4 opinions on behalf of persons claiming medical benefits for
5 personal injury protection, or on behalf of an insured through
6 an attorney or another entity, shall maintain, for at least 3
7 years, copies of all examination reports as medical records
8 and shall maintain, for at least 3 years, records of all
9 payments for the examinations and reports. Neither an insurer
10 nor any person acting at the direction of or on behalf of an
11 insurer may materially change an opinion in a report prepared
12 under this paragraph or direct the physician preparing the
13 report to change such opinion. The denial of a payment as the
14 result of such a changed opinion constitutes a material
15 misrepresentation under s. 626.9541(1)(i)2.; however, this
16 provision does not preclude the insurer from calling to the
17 attention of the physician errors of fact in the report based
18 upon information in the claim file.
19 (b) If requested by the person examined, a party
20 causing an examination to be made shall deliver to him or her
21 a copy of every written report concerning the examination
22 rendered by an examining physician, at least one of which
23 reports must set out the examining physician's findings and
24 conclusions in detail. After such request and delivery, the
25 party causing the examination to be made is entitled, upon
26 request, to receive from the person examined every written
27 report available to him or her or his or her representative
28 concerning any examination, previously or thereafter made, of
29 the same mental or physical condition. By requesting and
30 obtaining a report of the examination so ordered, or by taking
31 the deposition of the examiner, the person examined waives any
22
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 privilege he or she may have, in relation to the claim for
2 benefits, regarding the testimony of every other person who
3 has examined, or may thereafter examine, him or her in respect
4 to the same mental or physical condition. If a person
5 unreasonably refuses to submit to an examination, the personal
6 injury protection carrier is no longer liable for subsequent
7 personal injury protection benefits.
8 (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
9 FEES.--With respect to any dispute under the provisions of ss.
10 627.730-627.7405 between the insured and the insurer, or
11 between an assignee of an insured's rights and the insurer,
12 the provisions of s. 627.428 shall apply, except as provided
13 in subsection (11).
14 (10) An insurer may negotiate and enter into contracts
15 with licensed health care providers for the benefits described
16 in this section, referred to in this section as "preferred
17 providers," which shall include health care providers licensed
18 under chapters 458, 459, 460, 461, and 463. The insurer may
19 provide an option to an insured to use a preferred provider at
20 the time of purchase of the policy for personal injury
21 protection benefits, if the requirements of this subsection
22 are met. If the insured elects to use a provider who is not a
23 preferred provider, whether the insured purchased a preferred
24 provider policy or a nonpreferred provider policy, the medical
25 benefits provided by the insurer shall be as required by this
26 section. If the insured elects to use a provider who is a
27 preferred provider, the insurer may pay medical benefits in
28 excess of the benefits required by this section and may waive
29 or lower the amount of any deductible that applies to such
30 medical benefits. If the insurer offers a preferred provider
31 policy to a policyholder or applicant, it must also offer a
23
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 nonpreferred provider policy. The insurer shall provide each
2 policyholder with a current roster of preferred providers in
3 the county in which the insured resides at the time of
4 purchase of such policy, and shall make such list available
5 for public inspection during regular business hours at the
6 principal office of the insurer within the state.
7 (11) DEMAND LETTER.--
8 (a) As a condition precedent to filing any action for
9 an overdue claim for benefits under this section paragraph
10 (4)(b), the insurer must be provided with written notice of an
11 intent to initiate litigation; provided, however, that, except
12 with regard to a claim or amended claim or judgment for
13 interest only which was not paid or was incorrectly
14 calculated, such notice is not required for an overdue claim
15 that the insurer has denied or reduced, nor is such notice
16 required if the insurer has been provided documentation or
17 information at the insurer's request pursuant to subsection
18 (6). Such notice may not be sent until the claim is overdue,
19 including any additional time the insurer has to pay the claim
20 pursuant to paragraph (4)(b).
21 (b) The notice required shall state that it is a
22 "demand letter under s. 627.736(11)" and shall state with
23 specificity:
24 1. The name of the insured upon which such benefits
25 are being sought, including a copy of the assignment giving
26 rights to the claimant if the claimant is not the insured.
27 2. The claim number or policy number upon which such
28 claim was originally submitted to the insurer.
29 3. To the extent applicable, the name of any medical
30 provider who rendered to an insured the treatment, services,
31 accommodations, or supplies that form the basis of such claim;
24
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 and an itemized statement specifying each exact amount, the
2 date of treatment, service, or accommodation, and the type of
3 benefit claimed to be due. A completed form satisfying the
4 requirements of paragraph (5)(d) or the lost-wage statement
5 previously submitted Health Care Finance Administration 1500
6 form, UB 92, or successor forms approved by the Secretary of
7 the United States Department of Health and Human Services may
8 be used as the itemized statement. To the extent that the
9 demand involves an insurer's withdrawal of payment under
10 paragraph (7)(a) for future treatment not yet rendered, the
11 claimant shall attach a copy of the insurer's notice
12 withdrawing such payment and an itemized statement of the
13 type, frequency, and duration of future treatment claimed to
14 be reasonable and medically necessary.
15 (c) Each notice required by this subsection section
16 must be delivered to the insurer by United States certified or
17 registered mail, return receipt requested. Such postal costs
18 shall be reimbursed by the insurer if so requested by the
19 claimant provider in the notice, when the insurer pays the
20 overdue claim. Such notice must be sent to the person and
21 address specified by the insurer for the purposes of receiving
22 notices under this subsection section, on the document denying
23 or reducing the amount asserted by the filer to be overdue.
24 Each licensed insurer, whether domestic, foreign, or alien,
25 shall may file with the office department designation of the
26 name and address of the person to whom notices pursuant to
27 this subsection section shall be sent which the office shall
28 make available on its Internet website when such document does
29 not specify the name and address to whom the notices under
30 this section are to be sent or when there is no such document.
31 The name and address on file with the office department
25
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 pursuant to s. 624.422 shall be deemed the authorized
2 representative to accept notice pursuant to this subsection
3 section in the event no other designation has been made.
4 (d) If, within 15 7 business days after receipt of
5 notice by the insurer, the overdue claim specified in the
6 notice is paid by the insurer together with applicable
7 interest and a penalty of 10 percent of the overdue amount
8 paid by the insurer, subject to a maximum penalty of $250, no
9 action for nonpayment or late payment may be brought against
10 the insurer. If the demand involves an insurer's withdrawal of
11 payment under paragraph (7)(a) for future treatment not yet
12 rendered, no action may be brought against the insurer if,
13 within 15 days after its receipt of the notice, the insurer
14 mails to the person filing the notice a written statement of
15 the insurer's agreement to pay for such treatment in
16 accordance with the notice and to pay a penalty of 10 percent,
17 subject to a maximum penalty of $250, when it pays for such
18 future treatment in accordance with the requirements of this
19 section. To the extent the insurer determines not to pay any
20 the overdue amount demanded, the penalty shall not be payable
21 in any subsequent action for nonpayment or late payment. For
22 purposes of this subsection, payment or the insurer's
23 agreement shall be treated as being made on the date a draft
24 or other valid instrument that is equivalent to payment, or
25 the insurer's written statement of agreement, is placed in the
26 United States mail in a properly addressed, postpaid envelope,
27 or if not so posted, on the date of delivery. The insurer
28 shall not be obligated to pay any attorney's fees if the
29 insurer pays the claim or mails its agreement to pay for
30 future treatment within the time prescribed by this
31 subsection.
26
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 (e) The applicable statute of limitation for an action
2 under this section shall be tolled for a period of 15 business
3 days by the mailing of the notice required by this subsection.
4 (f) Any insurer making a general business practice of
5 not paying valid claims until receipt of the notice required
6 by this subsection section is engaging in an unfair trade
7 practice under the insurance code.
8 (12) CIVIL ACTION FOR INSURANCE FRAUD.--An insurer
9 shall have a cause of action against any person convicted of,
10 or who, regardless of adjudication of guilt, pleads guilty or
11 nolo contendere to insurance fraud under s. 817.234, patient
12 brokering under s. 817.505, or kickbacks under s. 456.054,
13 associated with a claim for personal injury protection
14 benefits in accordance with this section. An insurer
15 prevailing in an action brought under this subsection may
16 recover compensatory, consequential, and punitive damages
17 subject to the requirements and limitations of part II of
18 chapter 768, and attorney's fees and costs incurred in
19 litigating a cause of action against any person convicted of,
20 or who, regardless of adjudication of guilt, pleads guilty or
21 nolo contendere to insurance fraud under s. 817.234, patient
22 brokering under s. 817.505, or kickbacks under s. 456.054,
23 associated with a claim for personal injury protection
24 benefits in accordance with this section.
25 (13) If the Financial Services Commission determines
26
27
28 ================ T I T L E A M E N D M E N T ===============
29 And the title is amended as follows:
30 On page 2, lines 13-30, delete those lines
31
27
8:35 PM 04/30/03 s1202c2c-17b3r
SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 154890
1 and insert:
2 be lawfully rendered; providing that benefits
3 are void if fraud is committed; providing for
4 award of attorney's fees in actions to recover
5 benefits; providing that consideration shall be
6 given to certain factors regarding the
7 reasonableness of charges; specifying claims or
8 charges that an insurer is not required to pay;
9 requiring the Department of Health, in
10 consultation with medical boards, to identify
11 certain diagnostic tests as non-compensable;
12 specifying effective dates; deleting certain
13 provisions governing arbitration; providing for
14 compliance with billing procedures; requiring
15 certain providers to require an insured to sign
16 a disclosure form; prohibiting insurers from
17 authorizing physicians to change opinion in
18 reports; providing requirements for physicians
19 with respect to maintaining such reports;
20 limiting the application of contingency risk
21 multipliers for awards of attorney's fees;
22 expanding provisions providing for a demand
23 letter;
24
25
26
27
28
29
30
31
28
8:35 PM 04/30/03 s1202c2c-17b3r