Senate Bill 1640

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    Florida Senate - 1998                                  SB 1640

    By Senator Kurth





    15-1115A-98                                             See HB

  1                      A bill to be entitled

  2         An act relating to insurance fraud; amending s.

  3         440.09, F.S.; conforming references to judges

  4         of compensation claims and administrative law

  5         judges; amending s. 440.105, F.S.; specifying a

  6         schedule of criminal penalties for certain

  7         prohibited activities; providing definitions;

  8         providing a period of limitations for

  9         undertaking certain proceedings; amending s.

10         624.416, F.S.; providing additional criteria

11         for the Department of Insurance to consider in

12         issuing certain certificates of authority;

13         amending s. 624.418, F.S.; providing an

14         additional criterion for suspending or revoking

15         certain certificates of authority; amending s.

16         626.989, F.S.; providing for reports of

17         insurance fraud to the Division of Insurance

18         Fraud of the Department of Insurance; amending

19         s. 626.9891, F.S.; requiring insurers to

20         provide for investigation of fraudulent claims;

21         requiring insurers to adopt an anti-fraud plan;

22         providing criteria and procedures; requiring

23         insurers to file an anti-fraud report with the

24         department; specifying contents; authorizing

25         the department to adopt rules; creating s.

26         626.9892, F.S.; establishing the Anti-Fraud

27         Reward Program in the department; providing for

28         awarding rewards under certain circumstances;

29         exempting certain department actions from

30         Florida Administrative Code requirements;

31         amending s. 627.062, F.S.; requiring the

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         department to consider certain additional

  2         factors in reviewing rate filings; amending s.

  3         627.072, F.S.; requiring consideration of

  4         certain additional factors in making and using

  5         rates; amending s. 627.411, F.S.; requiring the

  6         department to consider certain additional

  7         factors in determining the reasonableness of

  8         benefits in relation to premium charges;

  9         amending s. 641.31, F.S.; providing for

10         disapproval of rates, forms, or other filings;

11         creating s. 641.3915, F.S.; requiring certain

12         health maintenance organizations to provide for

13         investigation of fraudulent claims; requiring

14         health maintenance organizations to adopt an

15         anti-fraud plan; providing criteria and

16         procedures; requiring health maintenance

17         organizations to file an anti-fraud report with

18         the department; specifying contents;

19         authorizing the department to adopt rules;

20         amending s. 817.234, F.S.; specifying a

21         schedule of criminal penalties for committing

22         insurance fraud or insurance solicitation;

23         providing definitions; providing a period of

24         limitations for undertaking certain

25         proceedings; providing an appropriation;

26         providing an effective date.

27

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

29

30         Section 1.  Subsection (4) of section 440.09, Florida

31  Statutes, is amended to read:

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         440.09  Coverage.--

  2         (4)  An employee shall not be entitled to compensation

  3  or benefits under this chapter if any judge of compensation

  4  claims, administrative law judge hearing officer, court, or

  5  jury convened in this state determines that the employee has

  6  knowingly or intentionally engaged in any of the acts

  7  described in s. 440.105 for the purpose of securing workers'

  8  compensation benefits.

  9         Section 2.  Subsections (4) and (6) of section 440.105,

10  Florida Statutes, are amended, and subsection (8) is added to

11  said section, to read:

12         440.105  Prohibited activities; penalties;

13  limitations.--

14         (4)(a)  Whoever violates any provision of this

15  subsection commits insurance fraud. If the value of any

16  property involved in violation of this subsection:

17         1.  Is less than $20,000, the offender commits a felony

18  of the third degree, punishable as provided in s. 775.082, s.

19  775.083, or s. 775.084.

20         2.  Is $20,000 or more, but less than $100,000, the

21  offender commits a felony of the second degree, punishable as

22  provided in s. 775.082, s. 775.083, or s. 775.084.

23         3.  Is $100,000 or more, the offender commits a felony

24  of the first degree, punishable as provided in s. 775.082, s.

25  775.083, or s. 775.084.

26         (b)(a)  It shall be unlawful for any employer to

27  knowingly:

28         1.  Present or cause to be presented any false,

29  fraudulent, or misleading oral or written statement to any

30  person as evidence of compliance with s. 440.38.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         2.  Make a deduction from the pay of any employee

  2  entitled to the benefits of this chapter for the purpose of

  3  requiring the employee to pay any portion of premium paid by

  4  the employer to a carrier or to contribute to a benefit fund

  5  or department maintained by such employer for the purpose of

  6  providing compensation or medical services and supplies as

  7  required by this chapter.

  8         3.  Fail to secure payment of compensation if required

  9  to do so by this chapter.

10         (c)(b)  It shall be unlawful for any person:

11         1.  To knowingly make, or cause to be made, any false,

12  fraudulent, or misleading oral or written statement for the

13  purpose of obtaining or denying any benefit or payment under

14  this chapter.

15         2.  To present or cause to be presented any written or

16  oral statement as part of, or in support of, a claim for

17  payment or of other benefit pursuant to any provision of this

18  chapter, knowing that such statement contains any false,

19  incomplete, or misleading information concerning any fact or

20  thing material to such claim.

21         3.  To prepare or cause to be prepared any written or

22  oral statement that is intended to be presented to any

23  employer, insurance company, or self-insured program in

24  connection with, or in support of, any claim for payment or

25  other benefit pursuant to any provision of this chapter,

26  knowing that such statement contains any false, incomplete, or

27  misleading information concerning any fact or thing material

28  to such claim.

29         4.  To knowingly assist, conspire with, or urge any

30  person to engage in activity prohibited by this section.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         5.  To knowingly make any false, fraudulent, or

  2  misleading oral or written statement, or to knowingly omit or

  3  conceal material information, required by s. 440.185 or s.

  4  440.381, for the purpose of obtaining workers' compensation

  5  coverage or for the purpose of avoiding, delaying, or

  6  diminishing the amount of payment of any workers' compensation

  7  premiums.

  8         6.  To knowingly misrepresent or conceal payroll,

  9  classification of workers, or information regarding an

10  employer's loss history which would be material to the

11  computation and application of an experience rating

12  modification factor for the purpose of avoiding or diminishing

13  the amount of payment of any workers' compensation premiums.

14         7.  To knowingly present or cause to be presented any

15  false, fraudulent, or misleading oral or written statement to

16  any person as evidence of compliance with s. 440.38.

17         (d)(c)  It shall be unlawful for any physician licensed

18  under chapter 458, osteopathic physician licensed under

19  chapter 459, chiropractic physician licensed under chapter

20  460, podiatric physician licensed under chapter 461,

21  optometric physician licensed under chapter 463, or any other

22  practitioner licensed under the laws of this state to

23  knowingly and willfully assist, conspire with, or urge any

24  person to fraudulently violate any of the provisions of this

25  chapter.

26         (e)(d)  It shall be unlawful for any person or

27  governmental entity licensed under chapter 395 to maintain or

28  operate a hospital in such a manner so that such person or

29  governmental entity knowingly and willfully allows the use of

30  the facilities of such hospital by any person, in a scheme or

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  conspiracy to fraudulently violate any of the provisions of

  2  this chapter.

  3         (f)(e)  It shall be unlawful for any attorney or other

  4  person, in his or her individual capacity or in his or her

  5  capacity as a public or private employee, or any firm,

  6  corporation, partnership, or association, to knowingly assist,

  7  conspire with, or urge any person to fraudulently violate any

  8  of the provisions of this chapter.

  9         (g)(f)  It shall be unlawful for any attorney or other

10  person, in his or her individual capacity or in his or her

11  capacity as a public or private employee or for any firm,

12  corporation, partnership, or association, to unlawfully

13  solicit any business in and about city or county hospitals,

14  courts, or any public institution or public place; in and

15  about private hospitals or sanitariums; in and about any

16  private institution; or upon private property of any character

17  whatsoever for the purpose of making workers' compensation

18  claims.

19         (6)  For the purpose of the section:, the term

20         (a)  "Statement" includes, but is not limited to, any

21  notice, representation, statement, proof of injury, bill for

22  services, diagnosis, prescription, hospital or doctor records,

23  X ray, test result, or other evidence of loss, injury, or

24  expense.

25         (b)  "Property" means property as defined in s.

26  812.012.

27         (c)  "Value" means value as defined in s. 812.012.

28         (8)  Notwithstanding any other provision of law, a

29  proceeding under subsection (4) may be commenced at any time

30  within 5 years after the cause of action accrues; however, in

31  such proceeding, the period of limitation is tolled whenever

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  the defendant is continuously absent from this state or is

  2  without a reasonably ascertainable place of residence or work

  3  within this state, but not to extend such period of limitation

  4  by more than 1 year. If a criminal prosecution, action, or

  5  other proceeding is brought, or intervened in, to punish,

  6  prevent, or restrain any violation of subsection (4), the

  7  running of the period of limitation prescribed by this

  8  section, which is based in whole or in part upon any matter

  9  complained of in any such prosecution, action, or proceeding,

10  shall be tolled during the pendency of the prosecution,

11  action, or proceeding and for 2 years following the

12  termination of such prosecution, action, or proceeding.

13         Section 3.  Subsection (4) of section 624.416, Florida

14  Statutes, is amended to read:

15         624.416  Continuance, expiration, reinstatement, and

16  amendment of certificate of authority.--

17         (4)  The department may amend a certificate of

18  authority at any time to accord with changes in the insurer's

19  charter or insuring powers. Prior to amending an existing

20  certificate of authority to authorize an insurer to transact a

21  new line of business, the department shall require the

22  applicant to demonstrate compliance with the provisions of s.

23  626.9891 and to allocate sufficient resources to identify and

24  eliminate fraud.  The department shall consider the extent of

25  such resources in determining whether to authorize an insurer

26  to transact a new line of business.

27         Section 4.  Subsection (1) of section 624.418, Florida

28  Statutes, is amended to read:

29         624.418  Suspension, revocation of certificate of

30  authority for violations and special grounds.--

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (1)  The department shall suspend or revoke an

  2  insurer's certificate of authority if it finds that the

  3  insurer:

  4         (a)  Is in unsound financial condition.

  5         (b)  Is using such methods and practices in the conduct

  6  of its business as to render its further transaction of

  7  insurance in this state hazardous or injurious to its

  8  policyholders or to the public.

  9         (c)  Has failed to pay any final judgment rendered

10  against it in this state within 60 days after the judgment

11  became final.

12         (d)  Has failed to comply with the requirements of s.

13  626.9891 or has failed to allocate sufficient resources to

14  identify and eliminate fraud.

15         (e)(d)  No longer meets the requirements for the

16  authority originally granted.

17         Section 5.  Subsection (6) of section 626.989, Florida

18  Statutes, is amended to read:

19         626.989  Division of Insurance Fraud; definition;

20  investigative, subpoena powers; protection from civil

21  liability; reports to division; division investigator's power

22  to execute warrants and make arrests.--

23         (6)  Any person, other than an insurer, agent, or other

24  person licensed under the code, or an employee thereof, having

25  knowledge or who believes that a fraudulent insurance act or

26  any other act or practice which, upon conviction, constitutes

27  a felony or a misdemeanor under the code, under s. 440.105, or

28  under s. 817.234, is being or has been committed may send to

29  the Division of Insurance Fraud a report or information

30  pertinent to such knowledge or belief and such additional

31  information relative thereto as the department may request.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  Any professional practitioner licensed or regulated by the

  2  Department of Business and Professional Regulation, except as

  3  otherwise provided by law, any medical review committee as

  4  defined in s. 766.101, any private medical review committee,

  5  and any insurer, agent, or other person licensed under the

  6  code, or an employee thereof, having knowledge or who believes

  7  that a fraudulent insurance act or any other act or practice

  8  which, upon conviction, constitutes a felony or a misdemeanor

  9  under the code, under s. 440.105, or under s. 817.234, is

10  being or has been committed shall send to the Division of

11  Insurance Fraud a report or information pertinent to such

12  knowledge or belief and such additional information relative

13  thereto as the department may require. The Division of

14  Insurance Fraud shall review such information or reports and

15  select such information or reports as, in its judgment, may

16  require further investigation. It shall then cause an

17  independent examination of the facts surrounding such

18  information or report to be made to determine the extent, if

19  any, to which a fraudulent insurance act or any other act or

20  practice which, upon conviction, constitutes a felony or a

21  misdemeanor under the code, under s. 440.105, or under s.

22  817.234, is being committed. The Division of Insurance Fraud

23  shall report any alleged violations of law which its

24  investigations disclose to the appropriate licensing agency

25  and state attorney or other prosecuting agency having

26  jurisdiction with respect to any such violation, as provided

27  in s. 624.310. If prosecution by the state attorney or other

28  prosecuting agency having jurisdiction with respect to such

29  violation is not begun within 60 days of the division's

30  report, the state attorney or other prosecuting agency having

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  jurisdiction with respect to such violation shall inform the

  2  division of the reasons for the lack of prosecution.

  3         Section 6.  Section 626.9891, Florida Statutes, is

  4  amended to read:

  5         (Substantial rewording of section.  See

  6         s. 626.9891, F.S., for present text.)

  7         626.9891  Insurer anti-fraud plans, reports, and

  8  investigative units.--

  9         (1)  Each authorized insurer that had $10 million or

10  more in direct premiums written during the previous calendar

11  year shall:

12         (a)  Establish and maintain a unit or division within

13  the company to investigate possible fraudulent claims by

14  insureds or by persons making claims for services or repairs

15  against policies held by insureds; or

16         (b)  Contract with others to investigate possible

17  fraudulent claims for services or repairs against policies

18  held by insureds.

19

20  For purposes of this section, the term "unit or division"

21  includes the assignment of fraud investigation to employees

22  whose principal responsibilities are the investigation and

23  disposition of claims.  If an insurer creates a distinct unit

24  or division, hires additional employees, or contracts with

25  another entity to fulfill the requirements of this section,

26  the additional cost incurred must be included as an

27  administrative expense for ratemaking purposes.

28         (2)(a)  Each authorized insurer shall adopt an

29  anti-fraud plan, which shall be filed with the department

30  prior to January 1, 1999.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (b)  Any insurer that previously filed an anti-fraud

  2  plan with the department shall amend the plan to comply with

  3  the requirements of subsection (3) and shall file all plan

  4  amendments with the department prior to January 1, 1999.

  5         (c)  Any insurer that files an application for a

  6  certificate of authority with the department prior to January

  7  1, 1999, shall, if the certificate is not issued as of that

  8  date, comply with the requirements of this section within 90

  9  days after the issuance of a certificate of authority.

10         (d)  Any insurer that files an application for a

11  certificate of authority with the department on or after

12  January 1, 1999, shall comply with the requirements of this

13  section when the application is filed.

14         (3)  Each insurer's anti-fraud plan shall include:

15         (a)  A description of the unit or division established,

16  or a copy of the contract and related documents required under

17  subsection (1), if applicable.

18         (b)  A description of the insurer's policies and

19  procedures that facilitate the detection and investigation of

20  possible fraudulent insurance acts, including specific policy

21  provisions and investigative procedures intended to combat

22  complex instances of fraud with respect to each of the

23  following coverages: health, property, casualty, and workers'

24  compensation and employer's liability.

25         (c)  A description of the insurer's procedures for the

26  mandatory reporting of possible fraudulent insurance acts to

27  the department.

28         (d)  A description of the insurer's procedures for

29  auditing workers' compensation insureds to verify covered

30  employees and to ensure proper classification, loss experience

31  reporting, and premium collection practices.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (e)  A description of the insurer's anti-fraud

  2  education and training program for claims adjusters or other

  3  personnel.

  4         (f)  A description or chart that includes the

  5  organizational arrangement of the insurer's anti-fraud

  6  personnel and the education, training, and claims adjusting,

  7  law enforcement, or other investigative experience of such

  8  personnel responsible for the investigation of possible

  9  fraudulent insurance acts.

10         (4)  Each insurer shall file an anti-fraud report with

11  the department prior to March 1, 2000, and annually

12  thereafter, which shall include, for the previous calendar

13  year:

14         (a)  Material changes or amendments to personnel,

15  policies, or procedures in the insurer's anti-fraud plan.

16         (b)  A summary of significant actions taken by the

17  insurer to combat or prosecute cases of insurance fraud and

18  cases of workers' compensation insurance premium fraud.

19         (c)  A statement of the insurer's actual or estimated

20  losses in this state due to fraudulent insurance claims, by

21  line of coverage, and the increase or decrease in such losses

22  compared to previous calendar years.

23         (d)  The amount of direct premiums written, by line of

24  coverage, in the previous calendar year and the number of

25  fraud referrals, by line of coverage, made by the insurer to

26  the department during the reporting period.

27         (5)  The department may recommend changes or amendments

28  to an insurer's anti-fraud plan.

29         (6)  The department may adopt any rules necessary to

30  implement the provisions of this section.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         Section 7.  Section 626.9892, Florida Statutes, is

  2  created to read:

  3         626.9892  Anti-Fraud Reward Program; reporting of

  4  insurance fraud.--

  5         (1)  The Anti-Fraud Reward Program is hereby

  6  established within the department, to be funded from the

  7  Insurance Commissioner's Regulatory Trust Fund.

  8         (2)  The department may, at its discretion, pay rewards

  9  of up to $25,000 to persons responsible for providing

10  information leading to the arrest and conviction of persons

11  committing complex and organized crimes, investigated by the

12  Division of Insurance Fraud, arising from violations of the

13  insurance code, s. 440.105, or s. 817.234.

14         (3)  Only a single reward amount may be awarded for

15  each case, regardless of the number of persons arrested and

16  convicted in connection with the case and regardless of how

17  many persons submit claims for the reward.

18         (4)  The department shall establish procedures to

19  implement and administer the Anti-Fraud Reward Program.

20  Applications for rewards authorized by this section must be

21  made pursuant to the procedures established by the department.

22         (5)  All determinations and other actions of the

23  department pursuant to this section are exempt from the

24  provisions of chapter 120.

25         Section 8.  Paragraph (b) of subsection (2) of section

26  627.062, Florida Statutes, is amended to read:

27         627.062  Rate standards.--

28         (2)  As to all such classes of insurance:

29         (b)  Upon receiving a rate filing, the department shall

30  review the rate filing to determine if a rate is excessive,

31  inadequate, or unfairly discriminatory.  In making that

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  determination, the department shall, in accordance with

  2  generally accepted and reasonable actuarial techniques,

  3  consider the following factors:

  4         1.  Past and prospective loss experience within and

  5  without this state.

  6         2.  Past and prospective expenses.

  7         3.  The degree of competition among insurers for the

  8  risk insured.

  9         4.  Investment income reasonably expected by the

10  insurer, consistent with the insurer's investment practices,

11  from investable premiums anticipated in the filing, plus any

12  other expected income from currently invested assets

13  representing the amount expected on unearned premium reserves

14  and loss reserves.  The department may promulgate rules

15  utilizing reasonable techniques of actuarial science and

16  economics to specify the manner in which insurers shall

17  calculate investment income attributable to such classes of

18  insurance written in this state and the manner in which such

19  investment income shall be used in the calculation of

20  insurance rates.  Such manner shall contemplate allowances for

21  an underwriting profit factor and full consideration of

22  investment income which produce a reasonable rate of return;

23  however, investment income from invested surplus shall not be

24  considered. The profit and contingency factor as specified in

25  the filing shall be utilized in computing excess profits in

26  conjunction with s. 627.0625.

27         5.  The reasonableness of the judgment reflected in the

28  filing.

29         6.  Dividends, savings, or unabsorbed premium deposits

30  allowed or returned to Florida policyholders, members, or

31  subscribers.

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    Florida Senate - 1998                                  SB 1640
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  1         7.  The adequacy of loss reserves.

  2         8.  The cost of reinsurance.

  3         9.  Trend factors, including trends in actual losses

  4  per insured unit for the insurer making the filing.

  5         10.  Conflagration and catastrophe hazards, if

  6  applicable.

  7         11.  A reasonable margin for underwriting profit and

  8  contingencies.

  9         12.  The cost of medical services, if applicable.

10         13.  Compliance with the requirements of s. 626.9891

11  and the allocation of sufficient resources to identify and

12  eliminate fraud.

13         14.13.  Other relevant factors which impact upon the

14  frequency or severity of claims or upon expenses.

15

16  The provisions of this subsection shall not apply to workers'

17  compensation and employer's liability insurance and to motor

18  vehicle insurance.

19         Section 9.  Subsection (1) of section 627.072, Florida

20  Statutes, is amended to read:

21         627.072  Making and use of rates.--

22         (1)  As to workers' compensation and employer's

23  liability insurance,  the following factors shall be used in

24  the determination and fixing of rates:

25         (a)  The past loss experience and prospective loss

26  experience within and outside this state;

27         (b)  The conflagration and catastrophe hazards;

28         (c)  A reasonable margin for underwriting profit and

29  contingencies;

30

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  1         (d)  Dividends, savings, or unabsorbed premium deposits

  2  allowed or returned by insurers to their policyholders,

  3  members, or subscribers;

  4         (e)  Investment income on unearned premium reserves and

  5  loss reserves;

  6         (f)  Past expenses and prospective expenses, both those

  7  countrywide and those specifically applicable to this state;

  8  and

  9         (g)  Compliance with the requirements of s. 626.9891

10  and the allocation of sufficient resources to identify and

11  eliminate fraud; and

12         (h)(g)  All other relevant factors, including judgment

13  factors, within and outside this state.

14         Section 10.  Paragraph (e) is added to subsection (2)

15  of section 627.411, Florida Statutes, to read:

16         627.411  Grounds for disapproval.--

17         (2)  In determining whether the benefits are reasonable

18  in relation to the premium charged, the department, in

19  accordance with reasonable actuarial techniques, shall

20  consider:

21         (e)  Compliance with the requirements of s. 626.9891

22  and the allocation of sufficient resources to identify and

23  eliminate fraud.

24         Section 11.  Paragraph (d) is added to subsection (3)

25  of section 641.31, Florida Statutes, to read:

26         641.31  Health maintenance contracts.--

27         (3)

28         (d)  The department shall withdraw or withhold approval

29  of any health maintenance organization rate, form, or other

30  filing required under this subsection if the department

31  determines that the health maintenance organization has not

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  complied with the requirements of s. 641.3915 or has not

  2  allocated sufficient resources to identify and eliminate

  3  fraud.

  4         Section 12.  Section 641.3915, Florida Statutes, is

  5  created to read:

  6         641.3915  Health maintenance organization anti-fraud

  7  plans, reports, and investigative units.--

  8         (1)  Each authorized health maintenance organization

  9  that had $10 million or more in revenues during the previous

10  calendar year shall:

11         (a)  Establish and maintain a unit or division within

12  the company to investigate possible fraudulent claims by

13  subscribers or by persons making claims for services against

14  policies held by subscribers; or

15         (b)  Contract with others to investigate possible

16  fraudulent claims for services against policies held by

17  subscribers.

18

19  For purposes of this section, the term "unit or division"

20  includes the assignment of fraud investigation to employees

21  whose principal responsibilities are the investigation and

22  disposition of claims.  If a health maintenance organization

23  creates a distinct unit or division, hires additional

24  employees, or contracts with another entity to fulfill the

25  requirements of this section, the additional cost incurred

26  shall be included as an administrative expense for ratemaking

27  purposes.

28         (2)(a)  Each authorized health maintenance organization

29  must adopt an anti-fraud plan and file it with the department

30  before January 1, 1999.

31

                                  17

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (b)  Any health maintenance organization that has filed

  2  an application for a certificate of authority with the

  3  department prior to January 1, 1999, shall, if the certificate

  4  is not issued as of that date, comply with the requirements of

  5  this section within 90 days after the issuance of the

  6  certificate of authority.

  7         (c)  Any health maintenance organization that files an

  8  application for a certificate of authority with the department

  9  on or after January 1, 1999, shall comply with the

10  requirements of this section when the application is filed.

11         (3)  Each health maintenance organization's anti-fraud

12  plan shall include:

13         (a)  A description of the unit or division established,

14  or a copy of the contract and related documents required under

15  subsection (1), if applicable.

16         (b)  A description of the health maintenance

17  organization's policies and procedures that facilitate the

18  detection and investigation of possible fraudulent insurance

19  acts.

20         (c)  A description of the health maintenance

21  organization's procedures for the mandatory reporting of

22  possible fraudulent insurance acts to the department.

23         (d)  A description of the health maintenance

24  organization's anti-fraud education and training program for

25  claims adjusters or other personnel.

26         (e)  A description or chart that includes the

27  organizational arrangement of the health maintenance

28  organization's anti-fraud personnel and the education,

29  training, and claims adjusting, law enforcement, or other

30  investigative experience of such personnel responsible for the

31  investigation of fraudulent insurance acts.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (4)  Each health maintenance organization shall file an

  2  anti-fraud report with the department before March 1, 2000,

  3  and annually thereafter, which shall include, for the previous

  4  calendar year:

  5         (a)  Material changes or amendments to personnel,

  6  policies, or procedures in the health maintenance

  7  organization's anti-fraud plan.

  8         (b)  A summary of significant actions taken by the

  9  health maintenance organization to combat or prosecute cases

10  of insurance fraud.

11         (c)  A statement of the health maintenance

12  organization's actual or estimated losses in this state due to

13  fraudulent claims and the increase or decrease in such losses

14  compared to previous calendar years.

15         (d)  The number of fraud referrals made by the health

16  maintenance organization to the department during the

17  reporting period.

18         (5)  The department may recommend changes or amendments

19  to a health maintenance organization's anti-fraud plan.

20         (6)  The department may adopt any rules necessary to

21  implement the provisions of this section.

22         Section 13.  Subsections (1), (2), (3), (4), (8), and

23  (9) of section 817.234, Florida Statutes, are amended, and

24  subsections (11), (12), and (13) are added to said section, to

25  read:

26         817.234  False and fraudulent insurance claims.--

27         (1)(a)  Any person who, with the intent to injure,

28  defraud, or deceive any insurer:

29         1.  Presents or causes to be presented any written or

30  oral statement as part of, or in support of, a claim for

31  payment or other benefit pursuant to an insurance policy,

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  knowing that such statement contains any false, incomplete, or

  2  misleading information concerning any fact or thing material

  3  to such claim;

  4         2.  Prepares or makes any written or oral statement

  5  that is intended to be presented to any insurer in connection

  6  with, or in support of, any claim for payment or other benefit

  7  pursuant to an insurance policy, knowing that such statement

  8  contains any false, incomplete, or misleading information

  9  concerning any fact or thing material to such claim; or

10         3.  Knowingly presents, causes to be presented, or

11  prepares or makes with knowledge or belief that it will be

12  presented to any insurer, purported insurer, servicing

13  corporation, insurance broker, or insurance agent, or any

14  employee or agent thereof, any false, incomplete, or

15  misleading information or written or oral statement as part

16  of, or in support of, an application for the issuance of, or

17  the rating of, any insurance policy, or who conceals

18  information concerning any fact material to such application,

19

20  commits insurance fraud a felony of the third degree,

21  punishable as provided in subsection (11) s. 775.082, s.

22  775.083, or s. 775.084.

23         (b)  All claims and application forms shall contain a

24  statement that is approved by the Department of Insurance that

25  clearly states in substance the following: "Any person who

26  knowingly and with intent to injure, defraud, or deceive any

27  insurer files a statement of claim or an application

28  containing any false, incomplete, or misleading information is

29  guilty of a felony of the third degree."  The changes in this

30  paragraph relating to applications shall take effect on March

31  1, 1996.

                                  20

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (2)  Any physician licensed under chapter 458,

  2  osteopathic physician licensed under chapter 459, chiropractor

  3  licensed under chapter 460, or other practitioner licensed

  4  under the laws of this state who knowingly and willfully

  5  assists, conspires with, or urges any insured party to

  6  fraudulently violate any of the provisions of this section or

  7  part XI of chapter 627, or any person who, due to such

  8  assistance, conspiracy, or urging by said physician,

  9  osteopathic physician, chiropractor, or practitioner,

10  knowingly and willfully benefits from the proceeds derived

11  from the use of such fraud, commits insurance fraud is guilty

12  of a felony of the third degree, punishable as provided in

13  subsection (11) s. 775.082, s. 775.083, or s. 775.084. In the

14  event that a physician, osteopathic physician, chiropractor,

15  or practitioner is adjudicated guilty of a violation of this

16  section, the Board of Medicine as set forth in chapter 458,

17  the Board of Osteopathic Medicine as set forth in chapter 459,

18  the Board of Chiropractic as set forth in chapter 460, or

19  other appropriate licensing authority shall hold an

20  administrative hearing to consider the imposition of

21  administrative sanctions as provided by law against said

22  physician, osteopathic physician, chiropractor, or

23  practitioner.

24         (3)  Any attorney who knowingly and willfully assists,

25  conspires with, or urges any claimant to fraudulently violate

26  any of the provisions of this section or part XI of chapter

27  627, or any person who, due to such assistance, conspiracy, or

28  urging on such attorney's part, knowingly and willfully

29  benefits from the proceeds derived from the use of such fraud,

30  commits insurance fraud a felony of the third degree,

31

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  punishable as provided in subsection (11) s. 775.082, s.

  2  775.083, or s. 775.084.

  3         (4)  Any No person or governmental unit licensed under

  4  chapter 395 to maintain or operate a hospital, and any no

  5  administrator or employee of any such hospital, who shall

  6  knowingly and willfully allows allow the use of the facilities

  7  of said hospital by an insured party in a scheme or conspiracy

  8  to fraudulently violate any of the provisions of this section

  9  or part XI of chapter 627.  Any hospital administrator or

10  employee who violates this subsection commits insurance fraud

11  a felony of the third degree, punishable as provided in

12  subsection (11) s. 775.082, s. 775.083, or s. 775.084.  Any

13  adjudication of guilt for a violation of this subsection, or

14  the use of business practices demonstrating a pattern

15  indicating that the spirit of the law set forth in this

16  section or part XI of chapter 627 is not being followed, shall

17  be grounds for suspension or revocation of the license to

18  operate the hospital or the imposition of an administrative

19  penalty of up to $5,000 by the licensing agency, as set forth

20  in chapter 395.

21         (8)  It is unlawful for any person, in his or her

22  individual capacity or in his or her capacity as a public or

23  private employee, or for any firm, corporation, partnership,

24  or association, to solicit any business in or about city

25  receiving hospitals, city and county receiving hospitals,

26  county hospitals, justice courts, or municipal courts; in any

27  public institution; in any public place; upon any public

28  street or highway; in or about private hospitals, sanitariums,

29  or any private institution; or upon private property of any

30  character whatsoever for the purpose of making motor vehicle

31  tort claims or claims for personal injury protection benefits

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1  required by s. 627.736.  Any person who violates the

  2  provisions of this subsection commits insurance solicitation a

  3  felony of the third degree, punishable as provided in

  4  subsection (11) s. 775.082, s. 775.083, or s. 775.084.

  5         (9)  It is unlawful for any attorney to solicit any

  6  business relating to the representation of persons injured in

  7  a motor vehicle accident for the purpose of filing a motor

  8  vehicle tort claim or a claim for personal injury protection

  9  benefits required by s. 627.736.  The solicitation by

10  advertising of any business by an attorney relating to the

11  representation of a person injured in a specific motor vehicle

12  accident is prohibited by this section. Any attorney who

13  violates the provisions of this subsection commits insurance

14  solicitation a felony of the third degree, punishable as

15  provided in subsection (11) s. 775.082, s. 775.083, or s.

16  775.084.  Whenever any circuit or special grievance committee

17  acting under the jurisdiction of the Supreme Court finds

18  probable cause to believe that an attorney is guilty of a

19  violation of this section, such committee shall forward to the

20  appropriate state attorney a copy of the finding of probable

21  cause and the report being filed in the matter. This section

22  shall not be interpreted to prohibit advertising by attorneys

23  which does not entail a solicitation as described in this

24  subsection and which is permitted by the rules regulating The

25  Florida Bar as promulgated by the Florida Supreme Court.

26         (11)  If the value of any property involved in

27  violation of this section:

28         (a)  Is less than $20,000, the offender commits a

29  felony of the third degree, punishable as provided in s.

30  775.082, s. 775.083, or s. 775.084.

31

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         (b)  Is $20,000 or more, but less than $100,000, the

  2  offender commits a felony of the second degree, punishable as

  3  provided in s. 775.082, s. 775.083, or s. 775.084.

  4         (c)  Is $100,000 or more, the offender commits a felony

  5  of the first degree, punishable as provided in s. 775.082, s.

  6  775.083, or s. 775.084.

  7         (12)  As used in this section:

  8         (a)  "Property" means property as defined in s.

  9  812.012.

10         (b)  "Value" means value as defined in s. 812.012.

11         (13)  Notwithstanding any other provision of law, a

12  proceeding under this section may be commenced at any time

13  within 5 years after the cause of action accrues; however, in

14  such proceeding, the period of limitation is tolled whenever

15  the defendant is continuously absent from this state or is

16  without a reasonably ascertainable place of residence or work

17  within this state, but not to extend such period of limitation

18  by more than 1 year. If a criminal prosecution, action, or

19  other proceeding is brought, or intervened in, to punish,

20  prevent, or restrain any violation of this section, the

21  running of the period of limitation prescribed by this

22  section, which is based in whole or in part upon any matter

23  complained of in any such prosecution, action, or proceeding,

24  shall be tolled during the pendency of the prosecution,

25  action, or proceeding and for 2 years following the

26  termination of such prosecution, action, or proceeding.

27         Section 14.  The sum of $250,000 is hereby appropriated

28  from the Insurance Commissioner's Regulatory Trust Fund in a

29  nonoperating category to implement the purpose and provisions

30  of funding the anti-fraud reward program established by this

31  act.

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    Florida Senate - 1998                                  SB 1640
    15-1115A-98                                             See HB




  1         Section 15.  This act shall take effect upon becoming a

  2  law.

  3

  4            *****************************************

  5                       LEGISLATIVE SUMMARY

  6
      Requires insurers and health maintenance organizations to
  7    provide for investigating insurance fraud and to submit
      anti-fraud plans to the division. Establishes penalty
  8    levels and prescribes time limitations for prosecution of
      prohibited insurance fraud and solicitations. Provides
  9    for disapproval of rates, forms, and filings.

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