House Bill 1589

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    Florida House of Representatives - 2000                HB 1589

        By Representative Lawson






  1                      A bill to be entitled

  2         An act relating to joint negotiations by health

  3         care providers with health care insurers;

  4         providing a short title; providing legislative

  5         findings; providing application; providing

  6         definitions; providing exclusions; providing

  7         for negotiations relating to nonfee-related

  8         terms; providing for negotiations relating to

  9         fees and fee-related terms; providing

10         procedures and requirements; providing for

11         determinations of substantial market power;

12         providing duties and responsibilities of the

13         Insurance Commissioner; providing for conduct

14         of negotiations; providing requirements and

15         limitations; providing duties and

16         responsibilities of the Attorney General

17         relating to oversight, approval or disapproval

18         of negotiations and contracts, notice and

19         hearings, proceedings and appellate review, and

20         rulemaking authority; requiring good faith

21         negotiations; providing for arbitration;

22         providing requirements and procedures;

23         providing for fees; providing for severability;

24         providing for immunity from antitrust

25         liability; providing construction; providing an

26         effective date.

27

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

29

30         Section 1.  Short title.--This act may be cited as the

31  "Health Care Provider Joint Negotiation Act."

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  1         Section 2.  Legislative findings.--The Legislature

  2  finds and determines that:

  3         (1)  Active, robust, and fully competitive markets for

  4  health care services provide the best opportunity for

  5  residents of this state to receive high-quality health care

  6  services at an appropriate cost.

  7         (2)  A substantial amount of health care services in

  8  this state is purchased for the benefit of patients by health

  9  care insurers engaged in the provision of health care

10  financing services or is otherwise delivered subject to the

11  terms of agreements between health care insurers and health

12  care providers.

13         (3)  Health care insurers are able to control the flow

14  of patients to providers of health care services through

15  compelling financial incentives for patients in their plans to

16  utilize only the services of providers with whom the insurers

17  have contracted.

18         (4)  Health care insurers also control the health care

19  services rendered to patients through utilization review

20  programs and other managed care tools and associated coverage

21  and payment policies.

22         (5)  The power of health care insurers in markets of

23  this state for health care services has become great enough to

24  create a competitive imbalance, reducing levels of competition

25  and threatening the availability of high-quality,

26  cost-effective health care.

27         (6)  In many areas of this state, the health care

28  financing market is dominated by one or two health care

29  insurers, with some insurers controlling over 50 percent of

30  the market.

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  1         (7)  Health care insurers are often able to virtually

  2  dictate the terms of the provider contracts they offer

  3  physicians and other health care providers and commonly offer

  4  provider contracts on a take-it-or-leave-it basis.

  5         (8)  The power of health care insurers to unilaterally

  6  impose provider contract terms jeopardizes the ability of

  7  physicians and other health care providers to deliver the

  8  superior quality health care services that have been

  9  traditionally available in this state.

10         (9)  Physicians and other health care providers do not

11  have sufficient economic power to reject unfair provider

12  contract terms that impede their ability to deliver medically

13  appropriate care without undue delay or hassle.

14         (10)  Inequitable reimbursement and other unfair

15  payment terms adversely affect quality patient care and access

16  by reducing the resources that health care providers can

17  devote to patient care and decreasing the time that physicians

18  are able to spend with their patients.

19         (11)  Inequitable reimbursement and other unfair

20  payment terms also endanger the health care infrastructure and

21  medical advancement by diverting capital needed for

22  reinvestment in the health care delivery system and curtailing

23  the purchase of state-of-the-art technology, the pursuit of

24  medical research, and the expansion of medical services, all

25  to the detriment of the residents of this state.

26         (12)  The inevitable collateral reduction and migration

27  of the health care workforce will also have negative

28  consequences for this state's economy.

29         (13)  Empowering independent health care providers to

30  jointly negotiate with health care insurers as provided in

31  this act will help restore the competitive balance and improve

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  1  competition in the markets for health care services in this

  2  state, thereby providing benefits for consumers.

  3         (14)  Allowing independent health care providers to

  4  jointly negotiate with health care insurers through a common

  5  joint negotiation representative will improve the efficiency

  6  and effectiveness of communications between the parties and

  7  result in provider contracts that better reflect the mutual

  8  areas of agreement.

  9         (15)  This act is necessary and proper and constitutes

10  an appropriate exercise of the authority of this state to

11  regulate the business of insurance and the delivery of health

12  care services.

13         (16)  Joint negotiation by certain competing health

14  care providers of certain terms and conditions of contracts

15  with health plans will result in procompetitive effects.

16         (17)  The procompetitive effects and other benefits of

17  the joint negotiations and related joint activity authorized

18  by this act, including, but not limited to, restoring the

19  competitive balance in the market for health care services,

20  protecting access to quality patient care, promoting the

21  health care infrastructure and medical advancement, and

22  improving communications, outweigh any anticompetitive

23  effects.

24         (18)  Although the Legislature finds that joint

25  negotiation over fee-related terms may, under some

26  circumstances, yield anticompetitive effects, the Legislature

27  also recognizes that there are instances in which health plans

28  dominate the market to such a degree that fair negotiations

29  between health care providers and the plan are unobtainable

30  absent any joint action on behalf of health care providers.

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  1         (19)  It is the intention of the Legislature to

  2  authorize independent health care providers to jointly

  3  negotiate with health care insurers and to qualify such joint

  4  negotiations and related joint activities for the state-action

  5  exemption to the federal antitrust laws through the

  6  articulated state policy and active supervision provided in

  7  this act.

  8         Section 3.  Scope.--This act applies solely to any

  9  health benefit plan that provides benefits for medical or

10  surgical expenses incurred as a result of a health condition,

11  accident, or sickness, including an individual, group,

12  blanket, or franchise insurance policy or insurance agreement,

13  a group hospital service contract, or an individual or group

14  evidence of coverage or similar coverage document, that is

15  offered by a health care insurer and the health care insurer's

16  affiliates.

17         Section 4.  Definitions.--As used in this act, unless

18  the context clearly indicates otherwise:

19         (1)  "Covered lives" means the total number of

20  individuals who are entitled to benefits under a health care

21  insurance plan, including, but not limited to, beneficiaries,

22  subscribers, and members of the plan.

23         (2)  "Health care insurer" means any entity licensed

24  under the Florida Insurance Code, subject to the insurance

25  laws of this state, or otherwise subject to the jurisdiction

26  of the Insurance Commissioner, which contracts or offers to

27  contract to provide, deliver, arrange for, pay for, or

28  reimburse any of the costs of health care services, except as

29  provided in section 5. For purposes of this act, a third party

30  administrator shall be considered a health care insurer when

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  1  interacting with health care providers and enrollees on behalf

  2  of a health care insurer.

  3         (3)  "Health care insurer affiliate" means a health

  4  care insurer that is affiliated with another entity by either

  5  the health care insurer or the entity having a 5 percent or

  6  greater, direct or indirect, ownership or investment interest

  7  in the other through equity, debt, or other means.

  8         (4)  "Health care provider" means a person who is

  9  licensed, certified, or otherwise regulated to provide health

10  care services under the laws of this state, including, but not

11  limited to, a physician, dentist, podiatrist, optometrist,

12  pharmacist, psychologist, chiropractor, physical therapist,

13  certified nurse practitioner, or nurse midwife. The term does

14  not include hospitals, health care facilities, or medical

15  equipment suppliers.

16         (5)  "Health care services" means services for the

17  diagnosis, prevention, treatment, cure, or relief of a health

18  condition, injury, disease, or illness, including, but not

19  limited to, the professional and technical component of

20  professional services, supplies, drugs and biologicals,

21  diagnostic X ray, laboratory and other diagnostic tests,

22  preventive screening services and tests, such as pap smears

23  and mammograms, X ray, radium and radioactive isotope therapy,

24  surgical dressings, devices for the reduction of fractures,

25  durable medical equipment, braces, trusses, artificial limbs

26  and eyes, dialysis services, home health services, and

27  hospital and other facility services.

28         (6)  "Health maintenance organization" has the same

29  meaning as that provided in s. 641.19, Florida Statutes, and

30  includes any health care insurer product that requires

31  enrollees to use health care providers in a designated

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  1  provider network to obtain covered services except in limited

  2  circumstances, including, but not limited to, emergencies.

  3         (7)  "Joint negotiation" means negotiation with a

  4  health care insurer by two or more independent health care

  5  providers acting together as part of a formal entity or group

  6  or otherwise.

  7         (8)  "Joint negotiation representative" means a

  8  representative selected by a group of independent health care

  9  providers to be the group's representative in joint

10  negotiations with a health care insurer under this act.

11         (9)  "Point-of-service plan" includes, but is not

12  limited to, a variation of a health maintenance organization

13  contract that provides limited coverage for certain

14  out-of-network services.

15         (10)  "Preferred provider" has the same meaning as that

16  provided in s. 627.6471, Florida Statutes, and includes any

17  health care insurer product, other than a health maintenance

18  organization or point-of-service product, that provides

19  financial incentives for enrollees to use health care

20  providers in a designated provider network for covered

21  services.

22         (11)  "Provider contract" means an agreement between a

23  health care provider and a health care insurer which sets

24  forth the terms and conditions under which the health care

25  provider is to deliver health care services to enrollees of

26  the health care insurer. The term does not include employment

27  contracts between a health care insurer and a health care

28  professional.

29         (12)  "Provider network" means a group of health care

30  providers who have provider contracts with a health care

31  insurer.

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  1         (13)  "Self-funded health benefit plan" means a plan

  2  that provides for the assumption of the cost of or spreading

  3  the risk of loss resulting from health care services of

  4  covered lives by an employer, union, or other sponsor,

  5  substantially out of the current revenues, assets, or any

  6  other funds of the sponsor.

  7         (14)  "Third party administrator" means an entity that

  8  provides utilization review, provider network credentialing,

  9  or other administrative services for a health care insurer or

10  a self-funded health benefit plan.

11         Section 5.  Exclusions.--Nothing in this act authorizes

12  joint negotiations regarding health care services covered

13  under the following insurance policies or coverage programs:

14         (1)  Workers' compensation.

15         (2)  Disability insurance, including policies that

16  specify payments be provided in lieu of wages for a period

17  during which an employee is absent from work because of

18  sickness or injury.

19         (3)  Motor vehicle insurance that includes payments

20  issued for medical coverage.

21         (4)  Medicare Supplemental, as defined by s. 1882(g)(1)

22  of the Social Security Act, 42 U.S.C. s. 1395ss, as amended.

23         (5)  Civilian Health and Medical Program of the

24  Uniformed Services (CHAMPUS).

25         (6)  Accident only, including death and dismemberment.

26         (7)  Specified disease only, or other such limited

27  benefits.

28         (8)  Long-term care, including a nursing home indemnity

29  policy, unless the Attorney General determines that the policy

30  provides benefit coverage so comprehensive that the policy is

31  a health benefit plan as described in section 3.

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  1         (9)  Credit insurance.

  2         (10)  Policies or programs supplemental to liability

  3  insurance.

  4         Section 6.  Negotiations regarding nonfee-related

  5  terms.--Competing health care providers may meet and

  6  communicate with each other for the purpose of jointly

  7  negotiating terms and conditions of contracts and may jointly

  8  negotiate with a health care insurer and engage in related

  9  joint activity, as provided in section 9 and subsection (1) of

10  section 10, regarding nonfee-related matters which can affect

11  patient care, including, but not limited to:

12         (1)  The definition of medical necessity and other

13  conditions of coverage insofar as such terms are not defined

14  by other provisions of law.

15         (2)  Utilization review criteria and procedures.

16         (3)  Clinical practice guidelines.

17         (4)  Preventive care and other medical management

18  policies.

19         (5)  Patient referral standards and procedures,

20  including, but not limited to, those applicable to

21  out-of-network and out-of-region care sites.

22         (6)  Drug formularies and standards and procedures for

23  prescribing off-formulary drugs.

24         (7)  Quality assurance programs.

25         (8)  Delineation of liability between health care

26  provider and health care insurer liability for the treatment

27  or lack of treatment of health plan enrollees.

28         (9)  Fiscally oriented administrative procedures,

29  including, but not limited to, the methods and timing of

30  payments, including, but not limited to, interest and

31  penalties for late payments.

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  1         (10)  Nonfiscally oriented administrative procedures,

  2  including, but not limited to, enrollee eligibility

  3  verification systems and claim documentation requirements.

  4         (11)  Credentialing standards and procedures for the

  5  selection, retention, and termination of participating health

  6  care providers.

  7         (12)  Mechanisms for resolving disputes between the

  8  health care insurer and health care providers, including, but

  9  not limited to, the appeals process for utilization review and

10  credentialing determination.

11         (13)  Whether and the extent to which the health care

12  providers are required to participate in other health

13  insurance plans sold or administered by the health care

14  insurer.

15         (14)  Practices and procedures to encourage and promote

16  patient education and treatment compliance.

17         (15)  Practices and procedures to identify, correct,

18  and prevent potentially fraudulent activities.

19         (16)  Procedures by which expanded access to care may

20  be achieved.

21         (17)  Procedures by which inclusion or alteration of

22  contractual terms and conditions may occur, to the extent they

23  are the subject of government regulation prohibiting or

24  requiring their existence, provided that such restriction does

25  not limit health care providers' rights to jointly petition

26  government to change such regulation.

27         Section 7.  Negotiation regarding fees and fee-related

28  terms.--If a health care insurer has substantial market power

29  over independent health care providers, competing health care

30  providers may meet and communicate with each other for the

31  purpose of jointly negotiating terms and conditions of

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  1  contracts and may jointly negotiate with the health care

  2  insurer, and engage in related joint activity, as provided in

  3  section 9 and subsection (1) of section 10 regarding fees and

  4  fee-related matters, including, but not limited to:

  5         (1)  The amount of payment or the methodology for

  6  determining the payment for a health care service.

  7         (2)  The conversion factor for a resource-based

  8  relative value scale or similar reimbursement methodology for

  9  health care services.

10         (3)  The amount of any discount on the price of a

11  health care service.

12         (4)  The procedure code or other description of the

13  health care service or services covered by a payment.

14         (5)  The amount of a bonus related to the provision of

15  health care services or a withhold from the payment due for a

16  health care service.

17         (6)  The amount of any other component of the

18  reimbursement methodology for a health care service.

19         (7)  The amount of capitation or fixed payment for

20  health care services rendered by health care providers to

21  enrollees of the health care insurer.

22         Section 8.  Substantial market power.--

23         (1)  For purposes of this section:

24         (a)  A health care insurer has substantial market power

25  over health care providers if:

26         1.  The comprehensive health care financing market or a

27  relevant segment of that market reflects a market

28  concentration of 1800 or greater as calculated by the

29  Herfindahl-Hirschman Index, and the health care insurer, alone

30  or in combination with the market shares of health care

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  1  insurer affiliates, has one of the five highest market shares

  2  in that market or relevant segment; or

  3         2.  The Attorney General determines that the market

  4  power of the health care insurer in the relevant product and

  5  geographic markets for the services of the health care

  6  providers seeking to jointly negotiate significantly exceeds

  7  the countervailing market power of the health care providers

  8  acting individually.

  9         (b)  The comprehensive health care financing market

10  includes:

11         1.  All health care insurer products which provide

12  comprehensive coverage, alone or in combination with other

13  products sold together as a package, including, but not

14  limited to, indemnity, health maintenance organization,

15  preferred provider, and point-of-service products and

16  packages.

17         2.  Self-funded health benefit plans which provide

18  comprehensive coverage.

19         (c)  Relevant market segments in the comprehensive

20  health care financing market include:

21         1.  Health care insurer products and self-funded health

22  benefit plans.

23         2.  Within the health care insurer product category,

24  private health insurance, Medicare health maintenance

25  organizations, Medicare preferred provider organizations,

26  Medicare point-of-service plans, and Medicaid health

27  maintenance organizations.

28         3.  Within the private health insurance category,

29  indemnity, health maintenance organization, preferred

30  provider, and point-of-service products.

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  1         4.  Such other segments as the Attorney General

  2  determines are appropriate for purposes of determining whether

  3  a health care insurer has substantial market power.

  4         (2)(a)  By March 31 of each year, the Insurance

  5  Commissioner shall calculate the number of covered lives of

  6  each health care insurer and its health care insurer

  7  affiliates in the comprehensive health care financing market

  8  and in each relevant market segment for each county in this

  9  state. The Insurance Commissioner shall make these

10  calculations by averaging quarterly data from the preceding

11  year unless the Insurance Commissioner determines that using

12  other data and information would be more appropriate. The

13  Insurance Commissioner may recalculate covered lives

14  determinations earlier than the required annual recalculation

15  when the Insurance Commissioner deems appropriate.

16         (b)  Recipients of Medicare, Medicaid, and other

17  governmental programs shall not be counted as covered lives in

18  the health care financing market unless they receive their

19  governmental program coverage through a health maintenance

20  organization or another health care insurer product.

21         (c)  When calculating the market share of a health care

22  insurer or health care insurer affiliate that has third party

23  administration products, the covered lives of the health care

24  insurers and self-funded health benefit plans for whom the

25  health care insurer or health care insurer affiliate provides

26  administrative services shall be treated as the covered lives

27  of the health care insurer or health care insurer affiliate.

28         (d)  The Insurance Commissioner's covered lives

29  calculations shall be used for purposes of determining the

30  market share of health care insurers in the comprehensive

31  health care financing market from the date of the

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  1  determination until the next annual determination or until the

  2  Insurance Commissioner recalculates the determination,

  3  whichever is earlier.

  4         (e)  In cases in which the relevant geographic market

  5  consists of multiple counties, the Insurance Commissioner's

  6  calculations for those counties shall be aggregated when

  7  counting the covered lives of the health care insurer whose

  8  market power is being evaluated.

  9         (f)  The Insurance Commissioner shall collect and

10  investigate information necessary to calculate the covered

11  lives of health care insurers and health care insurer

12  affiliates.

13         Section 9.  Conduct of negotiations.--The following

14  requirements shall apply to the exercise of joint negotiation

15  rights and related activity under this act:

16         (1)  Health care providers shall select the members of

17  a joint negotiation group by mutual agreement.

18         (2)  Health care providers shall designate a joint

19  negotiation representative as the sole party authorized to

20  negotiate with the health care insurer on behalf of the health

21  care providers as a group.

22         (3)  Health care providers may communicate with each

23  other and the joint negotiation representative with respect to

24  the matters to be negotiated with the health care insurer.

25         (4)  Health care providers may agree upon a proposal to

26  be presented by the joint negotiation representative to the

27  health care insurer.

28         (5)  Health care providers may agree to be bound by the

29  terms and conditions negotiated by the joint negotiation

30  representative.

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  1         (6)  The joint negotiation representative may provide

  2  the health care providers with the results of negotiations

  3  with the health care insurer and an evaluation of any offer

  4  made by the health care insurer.

  5         (7)  The joint negotiation representative may reject a

  6  contract proposal by a health care insurer on behalf of the

  7  health care providers as long as the health care providers

  8  remain free to individually contract with the health care

  9  insurer.

10         (8)  The joint negotiation representative shall advise

11  the health care providers of the provisions of this act and

12  shall inform the health care providers of the potential for

13  legal action against health care providers who violate federal

14  antitrust laws.

15         (9)  Health care providers may not negotiate the

16  inclusion or alteration of terms and conditions to the extent

17  the terms or conditions are required or prohibited by

18  government regulation. This subsection shall not be construed

19  to limit the right of health care providers to jointly

20  petition government for a change in such regulation.

21         Section 10.  Attorney General; oversight;

22  determinations; notice and hearings; proceedings and appellate

23  review; rules.--

24         (1)(a)  Before engaging in any joint negotiation with a

25  health care insurer, health care providers shall petition the

26  Attorney General for approval to proceed with the

27  negotiations. The petition seeking approval shall include:

28         1.  The name and business address of the health care

29  providers' joint negotiation representative.

30         2.  The names and business addresses of the health care

31  providers petitioning to jointly negotiate.

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  1         3.  The name and business address of the health care

  2  insurer or insurers with which the petitioning health care

  3  providers seek to jointly negotiate.

  4         4.  The proposed subject matter of the negotiations or

  5  discussions with the health care insurer or insurers.

  6         5.  The proportionate relationship of the health care

  7  providers to the total population of health care providers in

  8  the relevant geographic service area by health care provider

  9  type and specialty.

10         6.  In the case of a petition seeking approval of joint

11  negotiations regarding one or more fee or fee-related terms, a

12  statement of the reasons the health care insurer has

13  substantial market power over the health care providers.

14         7.  A statement of the procompetitive effects and other

15  benefits of the proposed negotiations.

16         8.  The health care providers' joint negotiation

17  representative's plan of operation and procedures to ensure

18  compliance with this act.

19         9.  Such other data, information, and documents the

20  health care providers desire to submit in support of the

21  petition.

22         (b)  The health care providers shall supplement a

23  petition under paragraph (a) as new information becomes

24  available that indicates that the subject matter of the

25  proposed negotiations with the health care insurer has or will

26  materially change and shall petition the Attorney General for

27  approval of modification of the subject matter of the joint

28  negotiations. The petition seeking approval of modification

29  shall include:

30         1.  The Attorney General's file reference for the

31  original petition for approval of joint negotiations.

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  1         2.  The proposed new subject matter.

  2         3.  The information required by subparagraphs (a)6. and

  3  7. with respect to the proposed new subject matter.

  4         4.  Such other data, information, and documents the

  5  health care providers desire to submit in support of the

  6  petition.

  7         (c)  No provider contract terms negotiated under this

  8  act shall be effective until the terms are approved by the

  9  Attorney General. The petition seeking approval of provider

10  contract terms shall be jointly submitted to the Attorney

11  General by the health care providers and the health care

12  insurer who are parties to the contract. The petition seeking

13  approval of provider contract terms shall include:

14         1.  The Attorney General's file reference for the

15  original petition for approval of joint negotiations.

16         2.  The negotiated provider contract terms.

17         3.  A statement of the procompetitive and other

18  benefits of the negotiated provider contract terms.

19         4.  Such other data, information, and documents the

20  health care providers desire to submit in support of the

21  petition.

22         (d)  Joint negotiations approved under this act may

23  continue until the health care insurer notifies the joint

24  negotiation representative that the health care insurer

25  declines to negotiate or is terminating negotiations. If the

26  health care insurer notifies the joint negotiation

27  representative that the health care insurer desires to resume

28  negotiations within 60 days after the end of prior

29  negotiations, the health care providers may renew the

30  previously approved negotiations without obtaining a separate

31  approval of the renewal from the Attorney General.

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  1         (2)(a)  The Office of Attorney General shall either

  2  approve or disapprove a petition under subsection (1) within

  3  30 days after the filing. If disapproved, the Attorney General

  4  shall furnish a written explanation of any deficiencies along

  5  with a statement of specific remedial measures as to how such

  6  deficiencies may be corrected.

  7         (b)1.  The Office of Attorney General shall approve a

  8  petition under paragraph (1)(a) or paragraph (1)(b) if:

  9         a.  The petition meets the requirements set forth in

10  such paragraphs, as applicable.

11         b.  The anticompetitive effects, if any, do not

12  outweigh the procompetitive effects and other benefits of the

13  joint negotiations.

14         c.  In the case of a petition seeking approval to

15  jointly negotiate one or more fee or fee-related terms, the

16  health care insurer has substantial market power over the

17  health care providers as determined pursuant to section 8.

18         2.  The Office of Attorney General shall approve a

19  petition under paragraph (1)(c) if:

20         a.  The petition meets the requirements set forth in

21  such paragraph.

22         b.  The anticompetitive effects, if any, do not

23  outweigh the procompetitive effects and other benefits of the

24  contract terms.

25         c.  The contract terms are consistent with other

26  applicable laws and regulations.

27         3.  The procompetitive effects and other benefits of

28  joint negotiations or negotiated provider contract terms may

29  include, but shall not be limited to:

30         a.  Restoration of the competitive balance in the

31  market for health care services.

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  1         b.  Protections for access to quality patient care.

  2         c.  Promotion of the health care infrastructure and

  3  medical advancement.

  4         d.  Improved communications between health care

  5  providers and health care insurers.

  6         4.  When weighing the anticompetitive effects of

  7  provider contract terms, the Attorney General may consider

  8  whether the terms:

  9         a.  Provide for excessive payments; or

10         b.  Contribute to the escalation of the cost of

11  providing health care services.

12         5.  A petition may be denied only if the petition does

13  not meet the requirements of this subsection.

14         (c)  For the purpose of enabling the Attorney General

15  to make the findings and determinations required by this

16  section, the Attorney General may require the submission of

17  such supplemental information as the Attorney General may deem

18  necessary or proper to enable him or her to reach a

19  determination.

20         (3)(a)  In the case of a petition under paragraph

21  (1)(a) or paragraph (1)(b), the Attorney General shall notify

22  the health care insurer of the petition and provide the health

23  care insurer with the opportunity to submit written comments

24  within a specified timeframe that does not extend beyond the

25  date on which the Attorney General is required to act on the

26  petition.

27         (b)1.  Except as provided in paragraph (a), the

28  Attorney General shall not be required to provide public

29  notice of a petition under paragraph (1)(a), paragraph (1)(b),

30  or paragraph (1)(c) to hold a public hearing on the petition

31  or to otherwise accept public comment on the petition.

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  1         2.  The Attorney General may, at his or her discretion,

  2  publish notice of a petition for approval of provider contract

  3  terms in the Florida Administrative Weekly and receive written

  4  comment from interested persons, so long as the opportunity

  5  for public comment does not prevent the Attorney General from

  6  acting on the petition within the time period set forth in

  7  this act.

  8         (4)(a)  Within 30 days after the mailing of a notice of

  9  disapproval of a petition under subsection (2), the

10  petitioners may make a written application to the Attorney

11  General for a hearing.

12         (b)  Upon receipt of a timely written application for a

13  hearing, the Attorney General shall schedule and conduct a

14  hearing as provided for in chapter 120, Florida Statutes. The

15  hearing shall be held within 30 days after the application

16  unless the petitioners seek an extension.

17         (c)  If the Attorney General does not issue a written

18  approval or disapproval of a petition under subsection (2)

19  within the required time period, the parties to the petition

20  shall have the right to petition a court for a mandamus order

21  requiring the Attorney General to approve or disapprove the

22  petition.

23         (d)  The sole parties with respect to any petition

24  under subsection (2) shall be the petitioners and the Attorney

25  General, and notwithstanding any otherwise applicable

26  provision of law, the Attorney General shall not be required

27  to treat any other person as a party and no other person shall

28  be entitled to appeal the Attorney General's determination.

29         (5)  The Attorney General may adopt any rules

30  reasonably necessary to implement the purposes of this act.

31         Section 11.  Good faith negotiations.--

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  1         (1)  Both health care insurers and health care

  2  providers shall negotiate in good faith regarding the terms of

  3  insurer-provider contracts.

  4         (2)  Health care providers may not propose a plan to

  5  exclude, limit, or otherwise restrict any other health care

  6  provider from participation in a health benefit plan.

  7         (3)  The joint negotiation representative shall advise

  8  health care providers of the provisions herein and shall warn

  9  health care providers of the potential for legal action

10  against health care providers who violate state or federal

11  antitrust laws when acting outside the authority granted in

12  this act.

13         Section 12.  Arbitration.--

14         (1)  Health care providers within the coverage of this

15  act shall have the right to jointly negotiate with health care

16  insurers and the right to invoke a dispute resolution process.

17         (2)  Health care providers within the coverage of this

18  act shall exert every reasonable effort to settle all disputes

19  by engaging in joint negotiations in good faith and by

20  achieving written agreements.

21         (3)  Joint negotiations shall begin at least 6 months

22  before the termination of a contract and any request for

23  arbitration shall be made at least 3 months before termination

24  of a contract.

25         (4)(a)  Either the health care insurer or the health

26  care provider may request appointment of a board of

27  arbitration by providing written notice to the other party

28  containing specifications of each disputed issue causing the

29  impasse.

30         (b)  Such request shall be filed with the Attorney

31  General and shall lead to the appointment of a board of

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  1  arbitration composed of three persons; one each shall be

  2  appointed by the health care insurer and health care provider,

  3  and these two shall mutually concur as to appointment of the

  4  third.

  5         (c)  Such appointments shall be made within 5 days

  6  after filing. If, after 10 additional days, the third person

  7  has not been chosen, the American Arbitration Association, or

  8  its successor in function, shall be requested by the Attorney

  9  General to furnish a list of three members of said association

10  from which the third arbitrator shall be selected.  Within 5

11  days thereafter, the already-appointed arbitrators shall

12  sequentially delete one name from the three-person list, with

13  the first deletion made by the arbitrator appointed by the

14  non-requesting party.

15         (d)  The arbitrator who has not been appointed by

16  either disputing party shall serve as the chair of the board

17  of arbitrators.

18         (e)  The board of arbitrators thus established shall

19  commence the arbitration proceedings within 10 days after the

20  third arbitrator has been selected and the board shall make

21  its determination within 30 days after the appointment of the

22  third arbitrator.

23         (f)  Each of the arbitrators shall have the power to

24  administer oaths, to compel the attendance of witnesses, and

25  to subpoena provision of physical evidence.

26         (g)  The determination of the majority of the board of

27  arbitration shall be final on each disputed issue and shall be

28  binding on all parties, such determination shall be provided

29  in writing to all parties, and no appeal from such

30  determination shall be allowed to any court.

31

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  1         (5)  Fees incurred through the arbitration process

  2  shall be split equally between the parties.

  3         (6)  Nothing contained in this act shall be construed

  4  to permit health care providers within the coverage of this

  5  act to jointly coordinate any cessation, reduction, or

  6  limitation of health care services.

  7         (7)  If subsection (1), paragraph (4)(a), or paragraph

  8  (4)(g), or the application of such provisions to any person or

  9  circumstances, shall, for any reason, be adjudged by a court

10  of competent jurisdiction to be invalid, such judgment shall

11  have the effect of also invalidating subsection (6).

12         Section 13.  Immunity from antitrust liability.--Any

13  actions by health care providers or their representatives

14  pursuant to this act shall be exempt from all federal and

15  state antitrust laws and shall not give rise to any legal

16  cause of action or liability against health care providers

17  whose conduct is consistent with this act.

18         Section 14.  Construction.--Nothing contained in this

19  act shall be construed to:

20         (1)  Prohibit or restrict activity by health care

21  providers that is sanctioned under federal or state laws.

22         (2)  Prohibit or require governmental approval of or

23  otherwise restrict activity by health care providers that is

24  not prohibited under federal antitrust laws.

25         (3)  Require approval of provider contract terms to the

26  extent that the terms are exempt from state regulation under

27  section 514 of the Employee Retirement Income Security Act of

28  1974, Pub. L. No. 93-406.

29         (4)  Expand a health care provider's scope of practice

30  under current law or to require a health care insurer to

31  contract with any type or specialty of health care providers.

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  1         Section 15.  This act shall take effect October 1,

  2  2000.

  3

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

  5                          HOUSE SUMMARY

  6
      Creates the Health Care Provider Joint Negotiation Act to
  7    authorize health care providers to meet and communicate
      for purposes of jointly negotiating, through a joint
  8    negotiation representative, with health care insurers to
      restore competitive balance and improve competition in
  9    markets for health care services. Distinguishes between
      negotiations relating to nonfee-related and fee-related
10    terms. Establishes the concepts of substantial market
      power and market share relating to health care services
11    and products. Specifies procedures for conducting
      negotiations. Provides duties and responsibilities of the
12    Attorney General in overseeing, reviewing, and approving
      negotiations. Provides for arbitration. Provides for
13    immunity from antitrust liability. See bill for details.

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