House Bill 0387

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    Florida House of Representatives - 1999                 HB 387

        By Representatives Crow, Lacasa, Barreiro, Fasano, Crist,
    Murman, Argenziano, Gottlieb, Greenstein, Sobel, Ogles, Rayson
    and Cosgrove




  1                      A bill to be entitled

  2         An act relating to health care service

  3         programs; amending s. 440.11, F.S.;

  4         establishing exclusive liability of health

  5         maintenance organizations; providing

  6         application; amending s. 641.28, F.S.; revising

  7         award of attorney's fees in civil actions under

  8         certain circumstances; amending s. 641.3903,

  9         F.S.; specifying additional practices as unfair

10         methods of competition or unfair or deceptive

11         acts or practices; amending s. 641.3917, F.S.;

12         authorizing civil actions against health

13         maintenance organizations by certain persons

14         under certain circumstances; providing

15         requirements and procedures; providing for

16         liability for damages and attorney's fees;

17         prohibiting punitive damages under certain

18         circumstances; requiring the advance posting of

19         discovery costs; providing a legislative

20         declaration; providing an appropriation;

21         providing an effective date.

22

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

24

25         Section 1.  Subsection (4) of section 440.11, Florida

26  Statutes, is amended to read:

27         440.11  Exclusiveness of liability.--

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

29  641.3917, the liability of a carrier or a health maintenance

30  organization to an employee or to anyone entitled to bring

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

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

  2  liability.

  3         Section 2.  Section 641.28, Florida Statutes, is

  4  amended to read:

  5         641.28  Civil remedy.--

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

  7  and conditions of a health maintenance organization contract:

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

  9  days after the subscriber or enrollee filed a grievance or

10  notice of intent to sue with the statewide provider and

11  subscriber assistance program established pursuant to s.

12  408.7056 or a notice pursuant to s. 641.3917, the prevailing

13  party is entitled to recover reasonable attorney's fees and

14  court costs.

15         (b)  If the civil action is filed pursuant to s.

16  641.3917 more than 60 days after the subscriber or enrollee

17  filed a notice of intent to sue with the statewide provider

18  and subscriber assistance program established pursuant to s.

19  408.7056 or a notice pursuant to s. 641.3917, and the

20  subscriber or enrollee receives a final judgment or decree

21  against the health maintenance organization in favor of the

22  subscriber or enrollee, the court shall enter a judgment or

23  decree against the health maintenance organization in favor of

24  the subscriber or enrollee for reasonable attorney's fees and

25  court costs.

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

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

28  Insurance Commissioner or against the Agency for Health Care

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

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

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

  3  subsection (14) is added to said section, to read:

  4         641.3903  Unfair methods of competition and unfair or

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

  6  defined as unfair methods of competition and unfair or

  7  deceptive acts or practices:

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

  9  CHARGES FOR HEALTH MAINTENANCE COVERAGE.--

10         (c)  Canceling or otherwise terminating any health

11  maintenance contract or coverage, or requiring execution of a

12  consent to rate endorsement, during the stated contract term

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

14  identical contract to the same subscriber or enrollee with the

15  same exposure at a higher premium rate or continuing an

16  existing contract with the same exposure at an increased

17  premium.

18         (d)  Issuing a nonrenewal notice on any health

19  maintenance organization contract, or requiring execution of a

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

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

22  subscriber or enrollee at a higher premium rate or continuing

23  an existing contract at an increased premium without meeting

24  any applicable notice requirements.

25         (e)  Canceling or issuing a nonrenewal notice on any

26  health maintenance organization contract without complying

27  with any applicable cancellation or nonrenewal provision

28  required under the Florida Insurance Code.

29         (14)  REFUSAL TO COVER.--In addition to other

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

31  cover, any individual solely because of:

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

  2  national origin;

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

  4  individual, unless there is a reasonable relationship between

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

  6  the coverage issued or to be issued; or

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

  8  previously refused insurance coverage or health maintenance

  9  organization coverage by any insurer or health maintenance

10  organization when such refusal to cover or continue to cover

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

12  general business practice.

13         Section 4.  Section 641.3917, Florida Statutes, is

14  amended to read:

15         641.3917  Civil liability.--The provisions of this part

16  are cumulative to rights under the general civil and common

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

18  rights to damage or other relief in any court.

19         (1)  Any person may bring a civil action against a

20  health maintenance organization when such person suffers

21  damages as a result of:

22         (a)  A violation of s. 641.3903(5)(a), (b), (c)1.-7.,

23  (10), or (12) by the health maintenance organization; or

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

25  provide a covered service when in good faith the health

26  maintenance organization should have provided such service had

27  it acted fairly and honestly toward its subscriber or enrollee

28  and with due regard for the subscriber's interests and, in the

29  independent medical judgment of a physician, the service is

30  medically necessary.

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

  2  not prove that such act was committed or performed with such

  3  frequency as to indicate a general business practice.

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

  5  under this section, the department and the health maintenance

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

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

  8  specificity, the 60-day time period shall not begin until a

  9  proper notice is filed.

10         (b)  The notice shall be on a form provided by the

11  department and shall state with specificity the following

12  information, and such other information as the department may

13  require:

14         1.  The provision of law, including the specific

15  language of the law, which the health maintenance organization

16  has allegedly violated.

17         2.  The facts and circumstances giving rise to the

18  violation.

19         3.  The name of any individual involved in the

20  violation.

21         4.  Any reference to specific contract language that is

22  relevant to the violation.

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

24  perfect the right to pursue the civil remedy authorized by

25  this section.

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

27  department may return any notice that does not provide the

28  specific information required by this section and the

29  department shall indicate the specific deficiencies contained

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

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  1  notice for lack of specificity is exempt from the requirements

  2  of chapter 120.

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

  4  60 days after filing notice, the damages are paid or the

  5  circumstances giving rise to the violation are corrected.

  6         (e)  The health maintenance organization that is the

  7  recipient of a notice filed pursuant to this section shall

  8  report to the department on the disposition of the alleged

  9  violation.

10         (f)  The applicable statute of limitations for an

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

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

13  or the mailing of a subsequent notice required by this

14  subsection.

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

16  the health maintenance organization shall be liable for

17  damages, together with court costs and reasonable attorney's

18  fees, incurred by the plaintiff.

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

20  section unless the acts giving rise to the violation occur

21  with such frequency as to indicate a general business practice

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

23  reckless disregard for the rights of any subscriber or

24  enrollee.  Any person who pursues a claim under this

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

26  Such costs shall be awarded to the health maintenance

27  organization if no punitive damages are awarded to the

28  plaintiff.

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

30  class action suit against a health maintenance organization or

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

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    Florida House of Representatives - 1999                 HB 387

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  1  Insurance Commissioner, or against the Agency for Health Care

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

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

  4  organization or a prepaid health plan refuses to provide

  5  service on the grounds that the charge for a service was

  6  unreasonably high, unless otherwise provided in paragraph

  7  (1)(b).

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

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

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

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

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

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

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

15  action.  The damages recoverable under this section include

16  damages which are a reasonably foreseeable result of a

17  specified violation of this section by the health maintenance

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

19  that exceeds contract limits.

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

21  medical malpractice.  Such action shall be subject to the

22  provisions of chapter 766.

23         (c)  This section shall not apply to the provision of

24  medical care, treatment, or attendance pursuant to chapter

25  440.

26         Section 5.  The Legislature finds that the provisions

27  of this bill will fulfill an important state interest.

28         Section 6.  There are hereby appropriated three

29  positions and $112,000 from the Insurance Commissioner's

30  Regulatory Trust Fund to the Department of Insurance for the

31  purposes of carrying out the provisions of this act.

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    Florida House of Representatives - 1999                 HB 387

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  1         Section 7.  This act shall take effect July 1, 1999.

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  4                          HOUSE SUMMARY

  5
      Establishes exclusive liability for health maintenance
  6    organizations.  Clarifies award of attorney's fees in
      civil actions against health maintenance organizations
  7    and prepaid health plans.  Specifies additional
      activities as unfair methods of competition and unfair or
  8    deceptive acts or practices.  Provides procedures and
      requirements for bringing civil actions against health
  9    maintenance organizations. See bill for details.

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