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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