SENATE AMENDMENT
Bill No. CS for CS for SB 1202
Amendment No. ___ Barcode 554712
CHAMBER ACTION
Senate House
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04/30/2003 09:12 PM .
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11 Senators Alexander, Bennett, Campbell and Smith moved the
12 following amendment:
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14 Senate Amendment (with title amendment)
15 On page 33, line 27, through
16 page 75, line 15, delete those lines
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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.
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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
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1 30 days after the insurer is furnished written notice of the
2 fact of a covered loss and of the amount of same. Written
3 notice for medical benefits, except for services or treatment
4 rendered in a hospital, shall not be considered to have been
5 provided to the insurer unless all the requirements of
6 paragraphs (5)(d) and (e) are met and all of the medical
7 treatment records applicable to the billing for which payment
8 is being requested have been provided to the insurer, to the
9 extent requested by the insurer pursuant to subsection (6). If
10 such written notice is not furnished to the insurer as to the
11 entire claim, any partial amount supported by written notice
12 is overdue if not paid within 30 days after such written
13 notice is furnished to the insurer. Any part or all of the
14 remainder of the claim that is subsequently supported by
15 written notice is overdue if not paid within 30 days after
16 such written notice is furnished to the insurer. When an
17 insurer pays only a portion of a claim or rejects a claim, the
18 insurer shall provide at the time of the partial payment or
19 rejection an itemized specification of each item that the
20 insurer had reduced, omitted, or declined to pay and any
21 information that the insurer desires the claimant to consider
22 related to the medical necessity of the denied treatment or to
23 explain the reasonableness of the reduced charge, provided
24 that this shall not limit the introduction of evidence at
25 trial; and the insurer shall include the name and address of
26 the person to whom the claimant should respond and a claim
27 number to be referenced in future correspondence. However,
28 notwithstanding the fact that written notice has been
29 furnished to the insurer, any payment shall not be deemed
30 overdue when the insurer has reasonable proof to establish
31 that the insurer is not responsible for the payment. For the
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1 purpose of calculating the extent to which any benefits are
2 overdue, payment shall be treated as being made on the date a
3 draft or other valid instrument which is equivalent to payment
4 was placed in the United States mail in a properly addressed,
5 postpaid envelope or, if not so posted, on the date of
6 delivery. This paragraph does not preclude or limit the
7 ability of the insurer to assert that the claim was unrelated,
8 was not medically necessary, or was unreasonable or that the
9 amount of the charge was in excess of that permitted under, or
10 in violation of, subsection (5). Such assertion by the insurer
11 may be made at any time, including after payment of the claim
12 or after the 30-day time period for payment set forth in this
13 paragraph.
14 (c) All overdue payments shall bear simple interest at
15 the rate established by the Comptroller under s. 55.03 or the
16 rate established in the insurance contract, whichever is
17 greater, for the year in which the payment became overdue,
18 calculated from the date the insurer was furnished with
19 written notice of the amount of covered loss. Interest shall
20 be due at the time payment of the overdue claim is made.
21 (d) The insurer of the owner of a motor vehicle shall
22 pay personal injury protection benefits for:
23 1. Accidental bodily injury sustained in this state by
24 the owner while occupying a motor vehicle, or while not an
25 occupant of a self-propelled vehicle if the injury is caused
26 by physical contact with a motor vehicle.
27 2. Accidental bodily injury sustained outside this
28 state, but within the United States of America or its
29 territories or possessions or Canada, by the owner while
30 occupying the owner's motor vehicle.
31 3. Accidental bodily injury sustained by a relative of
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1 the owner residing in the same household, under the
2 circumstances described in subparagraph 1. or subparagraph 2.,
3 provided the relative at the time of the accident is domiciled
4 in the owner's household and is not himself or herself the
5 owner of a motor vehicle with respect to which security is
6 required under ss. 627.730-627.7405.
7 4. Accidental bodily injury sustained in this state by
8 any other person while occupying the owner's motor vehicle or,
9 if a resident of this state, while not an occupant of a
10 self-propelled vehicle, if the injury is caused by physical
11 contact with such motor vehicle, provided the injured person
12 is not himself or herself:
13 a. The owner of a motor vehicle with respect to which
14 security is required under ss. 627.730-627.7405; or
15 b. Entitled to personal injury benefits from the
16 insurer of the owner or owners of such a motor vehicle.
17 (e) If two or more insurers are liable to pay personal
18 injury protection benefits for the same injury to any one
19 person, the maximum payable shall be as specified in
20 subsection (1), and any insurer paying the benefits shall be
21 entitled to recover from each of the other insurers an
22 equitable pro rata share of the benefits paid and expenses
23 incurred in processing the claim.
24 (f) It is a violation of the insurance code for an
25 insurer to fail to timely provide benefits as required by this
26 section with such frequency as to constitute a general
27 business practice.
28 (g) Benefits shall not be due or payable to or on the
29 behalf of an insured person if that person has committed, by a
30 material act or omission, any insurance fraud relating to
31 personal injury protection coverage under his or her policy,
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1 if the fraud is admitted to in a sworn statement by the
2 insured or if it is established in a court of competent
3 jurisdiction. Any insurance fraud shall void all coverage
4 arising from the claim related to such fraud under the
5 personal injury protection coverage of the insured person who
6 committed the fraud, irrespective of whether a portion of the
7 insured person's claim may be legitimate, and any benefits
8 paid prior to the discovery of the insured person's insurance
9 fraud shall be recoverable by the insurer from the person who
10 committed insurance fraud in their entirety. An insurer is
11 entitled to its costs and attorney's fees in any action in
12 which it prevails in enforcing its right of recovery under
13 this paragraph.
14 (5) CHARGES FOR TREATMENT OF INJURED PERSONS.--
15 (a) Any physician, hospital, clinic, or other person
16 or institution lawfully rendering treatment to an injured
17 person for a bodily injury covered by personal injury
18 protection insurance may charge the insurer and injured party
19 only a reasonable amount pursuant to this section for the
20 services and supplies rendered, and the insurer providing such
21 coverage may pay for such charges directly to such person or
22 institution lawfully rendering such treatment, if the insured
23 receiving such treatment or his or her guardian has
24 countersigned the properly completed invoice, bill, or claim
25 form approved by the Department of Insurance upon which such
26 charges are to be paid for as having actually been rendered,
27 to the best knowledge of the insured or his or her guardian.
28 In no event, however, may such a charge be in excess of the
29 amount the person or institution customarily charges for like
30 services or supplies in cases involving no insurance. With
31 respect to a determination of whether a charge for a
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1 particular service, treatment, or otherwise is reasonable,
2 consideration may be given to evidence of usual and customary
3 charges and payments accepted by the provider involved in the
4 dispute, and reimbursement levels in the community and various
5 federal and state medical fee schedules applicable to
6 automobile and other insurance coverages, and other
7 information relevant to the reasonableness of the
8 reimbursement for the service, treatment or supply.
9 (b)1. An insurer or insured is not required to pay a
10 claim or charges:
11 a. Made by a broker or by a person making a claim on
12 behalf of a broker;.
13 b. For any service or treatment that was not lawful at
14 the time rendered;
15 c. To any person who knowingly submits a false or
16 misleading statement relating to the claim or charges;
17 d. With respect to a bill or statement that does not
18 substantially meet the applicable requirements of paragraph
19 (d);
20 e. For any treatment or service that is upcoded, or
21 that is unbundled when such treatment or services should be
22 bundled, in accordance with paragraph (d). To facilitate
23 prompt payment of lawful services, an insurer may change codes
24 that it determines to have been improperly or incorrectly
25 upcoded or unbundled, and may make payment based on the
26 changed codes, without affecting the right of the provider to
27 dispute the change by the insurer, provided that before doing
28 so, the insurer must contact the health care provider and
29 discuss the reasons for the insurer's change and the health
30 care provider's reason for the coding, or make a reasonable
31 good-faith effort to do so, as documented in the insurer's
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1 file; and
2 f. For medical services or treatment billed by a
3 physician and not provided in a hospital unless such services
4 are rendered by the physician or are incident to his or her
5 professional services and are included on the physician's
6 bill, including documentation verifying that the physician is
7 responsible for the medical services that were rendered and
8 billed.
9 2. Charges for medically necessary cephalic
10 thermograms, peripheral thermograms, spinal ultrasounds,
11 extremity ultrasounds, video fluoroscopy, and surface
12 electromyography shall not exceed the maximum reimbursement
13 allowance for such procedures as set forth in the applicable
14 fee schedule or other payment methodology established pursuant
15 to s. 440.13.
16 3. Allowable amounts that may be charged to a personal
17 injury protection insurance insurer and insured for medically
18 necessary nerve conduction testing when done in conjunction
19 with a needle electromyography procedure and both are
20 performed and billed solely by a physician licensed under
21 chapter 458, chapter 459, chapter 460, or chapter 461 who is
22 also certified by the American Board of Electrodiagnostic
23 Medicine or by a board recognized by the American Board of
24 Medical Specialties or the American Osteopathic Association or
25 who holds diplomate status with the American Chiropractic
26 Neurology Board or its predecessors shall not exceed 200
27 percent of the allowable amount under Medicare Part B for year
28 2001, for the area in which the treatment was rendered,
29 adjusted annually by an additional amount equal to the medical
30 Consumer Price Index for Florida.
31 4. Allowable amounts that may be charged to a personal
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1 injury protection insurance insurer and insured for medically
2 necessary nerve conduction testing that does not meet the
3 requirements of subparagraph 3. shall not exceed the
4 applicable fee schedule or other payment methodology
5 established pursuant to s. 440.13.
6 5. Effective upon this act becoming a law and before
7 November 1, 2001, allowable amounts that may be charged to a
8 personal injury protection insurance insurer and insured for
9 magnetic resonance imaging services shall not exceed 200
10 percent of the allowable amount under Medicare Part B for year
11 2001, for the area in which the treatment was rendered.
12 Beginning November 1, 2001, allowable amounts that may be
13 charged to a personal injury protection insurance insurer and
14 insured for magnetic resonance imaging services shall not
15 exceed 175 percent of the allowable amount under Medicare Part
16 B for year 2001, for the area in which the treatment was
17 rendered, adjusted annually by an additional amount equal to
18 the medical Consumer Price Index for Florida, except that
19 allowable amounts that may be charged to a personal injury
20 protection insurance insurer and insured for magnetic
21 resonance imaging services provided in facilities accredited
22 by the American College of Radiology or the Joint Commission
23 on Accreditation of Healthcare Organizations shall not exceed
24 200 percent of the allowable amount under Medicare Part B for
25 year 2001, for the area in which the treatment was rendered,
26 adjusted annually by an additional amount equal to the medical
27 Consumer Price Index for Florida. This paragraph does not
28 apply to charges for magnetic resonance imaging services and
29 nerve conduction testing for inpatients and emergency services
30 and care as defined in chapter 395 rendered by facilities
31 licensed under chapter 395.
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1 6. The Department of Health, in consultation with the
2 appropriate professional licensing boards, shall adopt, by
3 rule, a list of diagnostic tests deemed not be medically
4 necessary for use in the treatment of persons sustaining
5 bodily injury covered by personal injury protection benefits
6 under this section. The initial list shall be adopted by
7 January 1, 2004, and shall be revised from time to time as
8 determined by the Department of Health, in consultation with
9 the respective professional licensing boards. Inclusion of a
10 test on the list of invalid diagnostic tests shall be based on
11 lack of demonstrated medical value and a level of general
12 acceptance by the relevant provider community and shall not be
13 dependent for results entirely upon subjective patient
14 response. Notwithstanding its inclusion on a fee schedule in
15 this subsection, an insurer or insured is not required to pay
16 any charges or reimburse claims for any invalid diagnostic
17 test as determined by the Department of Health.
18 (c)1. With respect to any treatment or service, other
19 than medical services billed by a hospital or other provider
20 for emergency services as defined in s. 395.002 or inpatient
21 services rendered at a hospital-owned facility, the statement
22 of charges must be furnished to the insurer by the provider
23 and may not include, and the insurer is not required to pay,
24 charges for treatment or services rendered more than 35 days
25 before the postmark date of the statement, except for past due
26 amounts previously billed on a timely basis under this
27 paragraph, and except that, if the provider submits to the
28 insurer a notice of initiation of treatment within 21 days
29 after its first examination or treatment of the claimant, the
30 statement may include charges for treatment or services
31 rendered up to, but not more than, 75 days before the postmark
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1 date of the statement. The injured party is not liable for,
2 and the provider shall not bill the injured party for, charges
3 that are unpaid because of the provider's failure to comply
4 with this paragraph. Any agreement requiring the injured
5 person or insured to pay for such charges is unenforceable.
6 2. If, however, the insured fails to furnish the
7 provider with the correct name and address of the insured's
8 personal injury protection insurer, the provider has 35 days
9 from the date the provider obtains the correct information to
10 furnish the insurer with a statement of the charges. The
11 insurer is not required to pay for such charges unless the
12 provider includes with the statement documentary evidence that
13 was provided by the insured during the 35-day period
14 demonstrating that the provider reasonably relied on erroneous
15 information from the insured and either:
16 a.1. A denial letter from the incorrect insurer; or
17 b.2. Proof of mailing, which may include an affidavit
18 under penalty of perjury, reflecting timely mailing to the
19 incorrect address or insurer.
20 3. For emergency services and care as defined in s.
21 395.002 rendered in a hospital emergency department or for
22 transport and treatment rendered by an ambulance provider
23 licensed pursuant to part III of chapter 401, the provider is
24 not required to furnish the statement of charges within the
25 time periods established by this paragraph; and the insurer
26 shall not be considered to have been furnished with notice of
27 the amount of covered loss for purposes of paragraph (4)(b)
28 until it receives a statement complying with paragraph (e), or
29 copy thereof, which specifically identifies the place of
30 service to be a hospital emergency department or an ambulance
31 in accordance with billing standards recognized by the Health
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1 Care Finance Administration.
2 4. Each notice of insured's rights under s. 627.7401
3 must include the following statement in type no smaller than
4 12 points:
5 BILLING REQUIREMENTS.--Florida Statutes provide
6 that with respect to any treatment or services,
7 other than certain hospital and emergency
8 services, the statement of charges furnished to
9 the insurer by the provider may not include,
10 and the insurer and the injured party are not
11 required to pay, charges for treatment or
12 services rendered more than 35 days before the
13 postmark date of the statement, except for past
14 due amounts previously billed on a timely
15 basis, and except that, if the provider submits
16 to the insurer a notice of initiation of
17 treatment within 21 days after its first
18 examination or treatment of the claimant, the
19 statement may include charges for treatment or
20 services rendered up to, but not more than, 75
21 days before the postmark date of the statement.
22 (d) Every insurer shall include a provision in its
23 policy for personal injury protection benefits for binding
24 arbitration of any claims dispute involving medical benefits
25 arising between the insurer and any person providing medical
26 services or supplies if that person has agreed to accept
27 assignment of personal injury protection benefits. The
28 provision shall specify that the provisions of chapter 682
29 relating to arbitration shall apply. The prevailing party
30 shall be entitled to attorney's fees and costs. For purposes
31 of the award of attorney's fees and costs, the prevailing
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1 party shall be determined as follows:
2 1. When the amount of personal injury protection
3 benefits determined by arbitration exceeds the sum of the
4 amount offered by the insurer at arbitration plus 50 percent
5 of the difference between the amount of the claim asserted by
6 the claimant at arbitration and the amount offered by the
7 insurer at arbitration, the claimant is the prevailing party.
8 2. When the amount of personal injury protection
9 benefits determined by arbitration is less than 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 insurer is the prevailing party.
14 3. When neither subparagraph 1. nor subparagraph 2.
15 applies, there is no prevailing party. For purposes of this
16 paragraph, the amount of the offer or claim at arbitration is
17 the amount of the last written offer or claim made at least 30
18 days prior to the arbitration.
19 4. In the demand for arbitration, the party requesting
20 arbitration must include a statement specifically identifying
21 the issues for arbitration for each examination or treatment
22 in dispute. The other party must subsequently issue a
23 statement specifying any other examinations or treatment and
24 any other issues that it intends to raise in the arbitration.
25 The parties may amend their statements up to 30 days prior to
26 arbitration, provided that arbitration shall be limited to
27 those identified issues and neither party may add additional
28 issues during arbitration.
29 (d)(e) All statements and bills for medical services
30 rendered by any physician, hospital, clinic, or other person
31 or institution shall be submitted to the insurer on a properly
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1 completed Centers for Medicare and Medicaid Services (CMS)
2 Health Care Finance Administration 1500 form, UB 92 forms, or
3 any other standard form approved by the department for
4 purposes of this paragraph. All billings for such services
5 rendered by providers shall, to the extent applicable, follow
6 the Physicians' Current Procedural Terminology (CPT) or
7 Healthcare Correct Procedural Coding System (HCPCS), or ICD-9
8 in effect for the year in which services are rendered and
9 comply with the Centers for Medicare and Medicaid Services
10 (CMS) 1500 form instructions and the American Medical
11 Association Current Procedural Terminology (CPT) Editorial
12 Panel and Healthcare Correct Procedural Coding System (HCPCS).
13 All providers other than hospitals shall include on the
14 applicable claim form the professional license number of the
15 provider in the line or space provided for "Signature of
16 Physician or Supplier, Including Degrees or Credentials." In
17 determining compliance with applicable CPT and HCPCS coding,
18 guidance shall be provided by the Physicians' Current
19 Procedural Terminology (CPT) or the Healthcare Correct
20 Procedural Coding System (HCPCS) in effect for the year in
21 which services were rendered, the Office of the Inspector
22 General (OIG), Physicians Compliance Guidelines, and other
23 authoritative treatises designated by rule by the Agency for
24 Health Care Administration. No statement of medical services
25 may include charges for medical services of a person or entity
26 that performed such services without possessing the valid
27 licenses required to perform such services. For purposes of
28 paragraph (4)(b), an insurer shall not be considered to have
29 been furnished with notice of the amount of covered loss or
30 medical bills due unless the statements or bills comply with
31 this paragraph, and unless the statements or bills are
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1 properly completed in their entirety as to all material
2 provisions, with all relevant information being provided
3 therein.
4 (e)1. At the initial treatment or service provided,
5 each physician, other licensed professional, clinic, or other
6 medical institution providing medical services upon which a
7 claim for personal injury protection benefits is based shall
8 require an insured person, or his or her guardian, to execute
9 a disclosure and acknowledgment form, which reflects at a
10 minimum that:
11 a. The insured, or his or her guardian, must
12 countersign the form attesting to the fact that the services
13 set forth therein were actually rendered;
14 b. The insured, or his or her guardian, has both the
15 right and affirmative duty to confirm that the services were
16 actually rendered;
17 c. The insured, or his or her guardian, was not
18 solicited by any person to seek any services from the medical
19 provider;
20 d. That the physician, other licensed professional,
21 clinic, or other medical institution rendering services for
22 which payment is being claimed explained the services to the
23 insured or his or her guardian; and
24 e. If the insured notifies the insurer in writing of a
25 billing error, the insured may be entitled to a certain
26 percentage of a reduction in the amounts paid by the insured's
27 motor vehicle insurer.
28 2. The physician, other licensed professional, clinic,
29 or other medical institution rendering services for which
30 payment is being claimed has the affirmative duty to explain
31 the services rendered to the insured, or his or her guardian,
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1 so that the insured, or his or her guardian, countersigns the
2 form with informed consent.
3 3. Countersignature by the insured, or his or her
4 guardian, is not required for the reading of diagnostic tests
5 or other services that are of such a nature that they are not
6 required to be performed in the presence of the insured.
7 4. The licensed medical professional rendering
8 treatment for which payment is being claimed must sign, by his
9 or her own hand, the form complying with this paragraph.
10 5. The original completed disclosure and
11 acknowledgement form shall be furnished to the insurer
12 pursuant to paragraph (4)(b) and may not be electronically
13 furnished.
14 6. This disclosure and acknowledgement form is not
15 required for services billed by a hospital or billed by
16 another provider for emergency services as defined in s.
17 395.002, for inpatient services rendered at a hospital-owned
18 facility, for emergency services and care as defined in s.
19 395.002 rendered in a hospital emergency department, or for
20 transport and treatment rendered by an ambulance provider
21 licensed pursuant to part III of chapter 401.
22 7. The Financial Services Commission shall adopt, by
23 rule, a standard disclosure and acknowledgment form that shall
24 be used to fulfill the requirements of this paragraph,
25 effective 90 days after such form is adopted and becomes
26 final. The commission shall adopt a proposed rule by October
27 1, 2003. Until the rule is final, the provider may use a form
28 of its own which otherwise complies with the requirements of
29 this paragraph.
30 8. As used in this paragraph, "countersigned" means a
31 second or verifying signature, as on a previously signed
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1 document, and is not satisfied by the statement "signature on
2 file" or any similar statement.
3 9. The requirements of this paragraph apply only with
4 respect to the initial treatment or service of the insured by
5 a provider. For subsequent treatments or service, the provider
6 must maintain a patient log signed by the patient, in
7 chronological order by date of service, that is consistent
8 with the services being rendered to the patient as claimed.
9 (f) Upon written notification by any person, an
10 insurer shall investigate any claim of improper billing by a
11 physician or other medical provider. The insurer shall
12 determine if the insured was properly billed for only those
13 services and treatments that the insured actually received. If
14 the insurer determines that the insured has been improperly
15 billed, the insurer shall notify the insured, the person
16 making the written notification and the provider of its
17 findings and shall reduce the amount of payment to the
18 provider by the amount determined to be improperly billed. If
19 a reduction is made due to such written notification by any
20 person, the insurer shall pay to the person 20 percent of the
21 amount of the reduction, up to $500. If the provider is
22 arrested due to the improper billing, then the insurer shall
23 pay to the person 40 percent of the amount of the reduction,
24 up to $500.
25 (h) An insurer may not systematically downcode with
26 the intent to deny reimbursement otherwise due. Such action
27 constitutes a material misrepresentation under s.
28 626.9541(1)(i)2.
29 (6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON;
30 DISPUTES.--
31 (a) Every employer shall, if a request is made by an
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1 insurer providing personal injury protection benefits under
2 ss. 627.730-627.7405 against whom a claim has been made,
3 furnish forthwith, in a form approved by the department, a
4 sworn statement of the earnings, since the time of the bodily
5 injury and for a reasonable period before the injury, of the
6 person upon whose injury the claim is based.
7 (b) Every physician, hospital, clinic, or other
8 medical institution providing, before or after bodily injury
9 upon which a claim for personal injury protection insurance
10 benefits is based, any products, services, or accommodations
11 in relation to that or any other injury, or in relation to a
12 condition claimed to be connected with that or any other
13 injury, shall, if requested to do so by the insurer against
14 whom the claim has been made, furnish forthwith a written
15 report of the history, condition, treatment, dates, and costs
16 of such treatment of the injured person and why the items
17 identified by the insurer were reasonable in amount and
18 medically necessary, together with a sworn statement that the
19 treatment or services rendered were reasonable and necessary
20 with respect to the bodily injury sustained and identifying
21 which portion of the expenses for such treatment or services
22 was incurred as a result of such bodily injury, and produce
23 forthwith, and permit the inspection and copying of, his or
24 her or its records regarding such history, condition,
25 treatment, dates, and costs of treatment; provided that this
26 shall not limit the introduction of evidence at trial. Such
27 sworn statement shall read as follows: "Under penalty of
28 perjury, I declare that I have read the foregoing, and the
29 facts alleged are true, to the best of my knowledge and
30 belief." No cause of action for violation of the
31 physician-patient privilege or invasion of the right of
18
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1 privacy shall be permitted against any physician, hospital,
2 clinic, or other medical institution complying with the
3 provisions of this section. The person requesting such records
4 and such sworn statement shall pay all reasonable costs
5 connected therewith. If an insurer makes a written request for
6 documentation or information under this paragraph within 30
7 days after having received notice of the amount of a covered
8 loss under paragraph (4)(a), the amount or the partial amount
9 which is the subject of the insurer's inquiry shall become
10 overdue if the insurer does not pay in accordance with
11 paragraph (4)(b) or within 10 days after the insurer's receipt
12 of the requested documentation or information, whichever
13 occurs later. For purposes of this paragraph, the term
14 "receipt" includes, but is not limited to, inspection and
15 copying pursuant to this paragraph. Any insurer that requests
16 documentation or information pertaining to reasonableness of
17 charges or medical necessity under this paragraph without a
18 reasonable basis for such requests as a general business
19 practice is engaging in an unfair trade practice under the
20 insurance code.
21 (c) In the event of any dispute regarding an insurer's
22 right to discovery of facts under this section about an
23 injured person's earnings or about his or her history,
24 condition, or treatment, or the dates and costs of such
25 treatment, the insurer may petition a court of competent
26 jurisdiction to enter an order permitting such discovery. The
27 order may be made only on motion for good cause shown and upon
28 notice to all persons having an interest, and it shall specify
29 the time, place, manner, conditions, and scope of the
30 discovery. Such court may, in order to protect against
31 annoyance, embarrassment, or oppression, as justice requires,
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1 enter an order refusing discovery or specifying conditions of
2 discovery and may order payments of costs and expenses of the
3 proceeding, including reasonable fees for the appearance of
4 attorneys at the proceedings, as justice requires.
5 (d) The injured person shall be furnished, upon
6 request, a copy of all information obtained by the insurer
7 under the provisions of this section, and shall pay a
8 reasonable charge, if required by the insurer.
9 (e) Notice to an insurer of the existence of a claim
10 shall not be unreasonably withheld by an insured.
11 (7) MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
12 REPORTS.--
13 (a) Whenever the mental or physical condition of an
14 injured person covered by personal injury protection is
15 material to any claim that has been or may be made for past or
16 future personal injury protection insurance benefits, such
17 person shall, upon the request of an insurer, submit to mental
18 or physical examination by a physician or physicians. The
19 costs of any examinations requested by an insurer shall be
20 borne entirely by the insurer. Such examination shall be
21 conducted within the municipality where the insured is
22 receiving treatment, or in a location reasonably accessible to
23 the insured, which, for purposes of this paragraph, means any
24 location within the municipality in which the insured resides,
25 or any location within 10 miles by road of the insured's
26 residence, provided such location is within the county in
27 which the insured resides. If the examination is to be
28 conducted in a location reasonably accessible to the insured,
29 and if there is no qualified physician to conduct the
30 examination in a location reasonably accessible to the
31 insured, then such examination shall be conducted in an area
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1 of the closest proximity to the insured's residence. Personal
2 protection insurers are authorized to include reasonable
3 provisions in personal injury protection insurance policies
4 for mental and physical examination of those claiming personal
5 injury protection insurance benefits. An insurer may not
6 withdraw payment of a treating physician without the consent
7 of the injured person covered by the personal injury
8 protection, unless the insurer first obtains a valid report by
9 a Florida physician licensed under the same chapter as the
10 treating physician whose treatment authorization is sought to
11 be withdrawn, stating that treatment was not reasonable,
12 related, or necessary. A valid report is one that is prepared
13 and signed by the physician examining the injured person or
14 reviewing the treatment records of the injured person and is
15 factually supported by the examination and treatment records
16 if reviewed and that has not been modified by anyone other
17 than the physician. The physician preparing the report must be
18 in active practice, unless the physician is physically
19 disabled. Active practice means that during the 3 years
20 immediately preceding the date of the physical examination or
21 review of the treatment records the physician must have
22 devoted professional time to the active clinical practice of
23 evaluation, diagnosis, or treatment of medical conditions or
24 to the instruction of students in an accredited health
25 professional school or accredited residency program or a
26 clinical research program that is affiliated with an
27 accredited health professional school or teaching hospital or
28 accredited residency program. The physician preparing a report
29 at the request of an insurer and physicians rendering expert
30 opinions on behalf of persons claiming medical benefits for
31 personal injury protection, or on behalf of an insurer through
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1 an attorney or another entity, shall maintain, for at least 3
2 years, copies of all examination reports as medical records
3 and shall maintain, for at least 3 years, records of all
4 payments for the examinations and reports. Neither an insurer
5 nor any person acting at the direction of or on behalf of an
6 insurer may materially change an opinion in a report prepared
7 under this paragraph or direct the physician preparing the
8 report to change such opinion. The denial of a payment as the
9 result of such a changed opinion constitutes a material
10 misrepresentation under s. 626.9541(1)(i)2.; however, this
11 provision does not preclude the insurer from calling to the
12 attention of the physician errors of fact in the report based
13 upon information in the claim file.
14 (b) If requested by the person examined, a party
15 causing an examination to be made shall deliver to him or her
16 a copy of every written report concerning the examination
17 rendered by an examining physician, at least one of which
18 reports must set out the examining physician's findings and
19 conclusions in detail. After such request and delivery, the
20 party causing the examination to be made is entitled, upon
21 request, to receive from the person examined every written
22 report available to him or her or his or her representative
23 concerning any examination, previously or thereafter made, of
24 the same mental or physical condition. By requesting and
25 obtaining a report of the examination so ordered, or by taking
26 the deposition of the examiner, the person examined waives any
27 privilege he or she may have, in relation to the claim for
28 benefits, regarding the testimony of every other person who
29 has examined, or may thereafter examine, him or her in respect
30 to the same mental or physical condition. If a person
31 unreasonably refuses to submit to an examination, the personal
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Amendment No. ___ Barcode 554712
1 injury protection carrier is no longer liable for subsequent
2 personal injury protection benefits.
3 (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
4 FEES.--With respect to any dispute under the provisions of ss.
5 627.730-627.7405 between the insured and the insurer, or
6 between an assignee of an insured's rights and the insurer,
7 the provisions of s. 627.428 shall apply, except as provided
8 in subsection (11). Contingency risk multipliers shall not
9 apply unless the court makes a specific finding that the
10 attorney performed work that was novel or complex and involved
11 issues beyond those normally found in such cases.
12 (10) An insurer may negotiate and enter into contracts
13 with licensed health care providers for the benefits described
14 in this section, referred to in this section as "preferred
15 providers," which shall include health care providers licensed
16 under chapters 458, 459, 460, 461, and 463. The insurer may
17 provide an option to an insured to use a preferred provider at
18 the time of purchase of the policy for personal injury
19 protection benefits, if the requirements of this subsection
20 are met. If the insured elects to use a provider who is not a
21 preferred provider, whether the insured purchased a preferred
22 provider policy or a nonpreferred provider policy, the medical
23 benefits provided by the insurer shall be as required by this
24 section. If the insured elects to use a provider who is a
25 preferred provider, the insurer may pay medical benefits in
26 excess of the benefits required by this section and may waive
27 or lower the amount of any deductible that applies to such
28 medical benefits. If the insurer offers a preferred provider
29 policy to a policyholder or applicant, it must also offer a
30 nonpreferred provider policy. The insurer shall provide each
31 policyholder with a current roster of preferred providers in
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1 the county in which the insured resides at the time of
2 purchase of such policy, and shall make such list available
3 for public inspection during regular business hours at the
4 principal office of the insurer within the state.
5 (11) DEMAND LETTER.--
6 (a) As a condition precedent to filing any action for
7 an overdue claim for benefits under this section paragraph
8 (4)(b), the insurer must be provided with written notice of an
9 intent to initiate litigation; provided, however, that, except
10 with regard to a claim or amended claim or judgment for
11 interest only which was not paid or was incorrectly
12 calculated, such notice is not required for an overdue claim
13 that the insurer has denied or reduced, nor is such notice
14 required if the insurer has been provided documentation or
15 information at the insurer's request pursuant to subsection
16 (6). Such notice may not be sent until the claim is overdue,
17 including any additional time the insurer has to pay the claim
18 pursuant to paragraph (4)(b).
19 (b) The notice required shall state that it is a
20 "demand letter under s. 627.736(11)" and shall state with
21 specificity:
22 1. The name of the insured upon which such benefits
23 are being sought, including a copy of the assignment giving
24 rights to the claimant if the claimant is not the insured.
25 2. The claim number or policy number upon which such
26 claim was originally submitted to the insurer.
27 3. To the extent applicable, the name of any medical
28 provider who rendered to an insured the treatment, services,
29 accommodations, or supplies that form the basis of such claim;
30 and an itemized statement specifying each exact amount, the
31 date of treatment, service, or accommodation, and the type of
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1 benefit claimed to be due. A completed form satisfying the
2 requirements of paragraph (5)(d) or the lost-wage statement
3 previously submitted Health Care Finance Administration 1500
4 form, UB 92, or successor forms approved by the Secretary of
5 the United States Department of Health and Human Services may
6 be used as the itemized statement. To the extent that the
7 demand involves an insurer's withdrawal of payment under
8 paragraph (7)(a) for future treatment not yet rendered, the
9 claimant shall attach a copy of the insurer's notice
10 withdrawing such payment and an itemized statement of the
11 type, frequency, and duration of future treatment claimed to
12 be reasonable and medically necessary.
13 (c) Each notice required by this subsection section
14 must be delivered to the insurer by United States certified or
15 registered mail, return receipt requested. Such postal costs
16 shall be reimbursed by the insurer if so requested by the
17 claimant provider in the notice, when the insurer pays the
18 overdue claim. Such notice must be sent to the person and
19 address specified by the insurer for the purposes of receiving
20 notices under this subsection section, on the document denying
21 or reducing the amount asserted by the filer to be overdue.
22 Each licensed insurer, whether domestic, foreign, or alien,
23 shall may file with the office department designation of the
24 name and address of the person to whom notices pursuant to
25 this subsection section shall be sent which the office shall
26 make available on its Internet website when such document does
27 not specify the name and address to whom the notices under
28 this section are to be sent or when there is no such document.
29 The name and address on file with the office department
30 pursuant to s. 624.422 shall be deemed the authorized
31 representative to accept notice pursuant to this subsection
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1 section in the event no other designation has been made.
2 (d) If, within 15 7 business days after receipt of
3 notice by the insurer, the overdue claim specified in the
4 notice is paid by the insurer together with applicable
5 interest and a penalty of 10 percent of the overdue amount
6 paid by the insurer, subject to a maximum penalty of $250, no
7 action for nonpayment or late payment may be brought against
8 the insurer. If the demand involves an insurer's withdrawal of
9 payment under paragraph (7)(a) for future treatment not yet
10 rendered, no action may be brought against the insurer if,
11 within 15 days after its receipt of the notice, the insurer
12 mails to the person filing the notice a written statement of
13 the insurer's agreement to pay for such treatment in
14 accordance with the notice and to pay a penalty of 10 percent,
15 subject to a maximum penalty of $250, when it pays for such
16 future treatment in accordance with the requirements of this
17 section. To the extent the insurer determines not to pay any
18 the overdue amount demanded, the penalty shall not be payable
19 in any subsequent action for nonpayment or late payment. For
20 purposes of this subsection, payment or the insurer's
21 agreement shall be treated as being made on the date a draft
22 or other valid instrument that is equivalent to payment, or
23 the insurer's written statement of agreement, is placed in the
24 United States mail in a properly addressed, postpaid envelope,
25 or if not so posted, on the date of delivery. The insurer
26 shall not be obligated to pay any attorney's fees if the
27 insurer pays the claim or mails its agreement to pay for
28 future treatment within the time prescribed by this
29 subsection.
30 (e) The applicable statute of limitation for an action
31 under this section shall be tolled for a period of 15 business
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1 days by the mailing of the notice required by this subsection.
2 (f) Any insurer making a general business practice of
3 not paying valid claims until receipt of the notice required
4 by this subsection section is engaging in an unfair trade
5 practice under the insurance code.
6 (12) CIVIL ACTION FOR INSURANCE FRAUD.--
7 (a) An insurer shall have a cause of action against
8 any person convicted of, or who, regardless of adjudication of
9 guilt, pleads guilty or nolo contendere to insurance fraud
10 under s. 817.234, patient brokering under s. 817.505, or
11 kickbacks under s. 456.054, associated with a claim for
12 personal injury protection benefits in accordance with this
13 section. An insurer prevailing in an action brought under
14 this subsection may recover compensatory, consequential, and
15 punitive damages subject to the requirements and limitations
16 of part II of chapter 768, and attorney's fees and costs
17 incurred in litigating a cause of action against any person
18 convicted of, or who, regardless of adjudication of guilt,
19 pleads guilty or nolo contendere to insurance fraud under s.
20 817.234, patient brokering under s. 817.505, or kickbacks
21 under s. 456.054, associated with a claim for personal injury
22 protection benefits in accordance with this section.
23 (b) Notwithstanding its payment, an insurer and
24 insured shall not be precluded from maintaining a civil cause
25 of action against any person or business entity to recover
26 payments for services later determined to have been unlawfully
27 rendered or otherwise in violation of any provision of this
28 section.
29 (13) If the Financial Services Commission determines
30
31
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Amendment No. ___ Barcode 554712
1 ================ T I T L E A M E N D M E N T ===============
2 And the title is amended as follows:
3 On page 2, lines 13-30, delete those lines
4
5 and insert:
6 be lawfully rendered; requiring the Department
7 of Health, in consultation with medical boards,
8 to identify certain diagnostic tests;
9 specifying effective dates; deleting certain
10 provisions governing arbitration; providing for
11 compliance with billing procedures; prohibiting
12 insurers from authorizing physicians to change
13 opinion in reports; providing requirements for
14 physicians with respect to maintaining such
15 reports; limiting the application of
16 contingency risk multipliers for awards of
17 attorney's fees; expanding provisions providing
18 for a demand letter;
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