Senate Bill 1900

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    Florida Senate - 2000                                  SB 1900

    By Senator Brown-Waite





    10-1149-00

  1                      A bill to be entitled

  2         An act relating to managed care organizations;

  3         creating the "Managed Care Organization's

  4         Patient's Bill of Rights"; providing

  5         legislative findings and intent; specifying

  6         that the purpose of the act is to ensure that

  7         quality health care and health benefits are

  8         provided to the people of this state; providing

  9         that managed care organizations own a fiduciary

10         duty to provide such care; requiring managed

11         care organizations to provide patients with a

12         copy of their rights as set forth in the act;

13         specifying the rights and responsibilities of

14         members of managed care organizations;

15         authorizing civil remedies to enforce the

16         rights specified in the act; providing for

17         actual and punitive damages and attorney's fees

18         and costs; providing for administrative fines;

19         providing that there is not any liability on

20         the part of certain employers or employee

21         organizations; requiring a plaintiff to submit

22         a written grievance as a condition precedent to

23         bringing an action for damages; requiring that

24         a managed care organization dispose of a

25         grievance within a specified period; requiring

26         notice of an action to enforce the rights

27         provided under the act; authorizing the court

28         to abate an action and require completion of an

29         internal grievance procedure; providing certain

30         exceptions; providing for the statute of

31         limitations to be tolled under specified

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  1         circumstances; authorizing an action for

  2         nonmonetary relief without complying with

  3         conditions precedent for the purpose of

  4         preventing potential death or serious bodily

  5         harm; providing for severability; providing an

  6         effective date.

  7

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

  9

10         Section 1.  Managed Care Organization's Patient's Bill

11  of Rights.--This act may be cited as the "Managed Care

12  Organization's Patient's Bill of Rights."

13         Section 2.  Legislative findings and intent.--

14         (1)  The Legislature finds that:

15         (a)  The health, safety, and welfare of the people of

16  this state are fundamental state interests that the

17  Legislature is responsible for protecting through the laws of

18  this state.

19         (b)  The manner in which health care is provided to the

20  people of this state has a direct impact upon the health,

21  safety, and welfare of state residents.

22         (2)  The Legislature intends that this act apply to all

23  managed care organizations and that the term "managed care

24  organization" include health insurance carriers; health

25  maintenance organizations; health service plans; other managed

26  care entities that provide health care or health benefits; and

27  entities regulated under chapters 624 through 631, Florida

28  Statutes, and chapter 641, Florida Statutes, which provide

29  health care benefits. Managed care organizations are engaged

30  in the business of insurance in this state as that term is

31

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  1  defined under the McCarran-Ferguson Act, 15 U.S.C. ss. 1011 et

  2  seq.

  3         (3)  The purpose of this act is to regulate the

  4  business of insurance and to ensure that appropriate quality

  5  health care and health benefits are provided through managed

  6  health care to the people of this state.

  7         (4)  Managed care organizations owe a fiduciary duty to

  8  the people of this state to ensure appropriate quality health

  9  care and health benefits to maintain and maximize the health,

10  safety, and welfare of the people of this state.

11         (5)  To ensure that adequate remedies exist to protect

12  the health, safety, and welfare of the people of this state,

13  this act creates substantive rights for quality health care

14  and health benefits and provides remedies under state law for

15  persons who are harmed by the failure of a managed care

16  organization to meet appropriate standards for quality health

17  care and health benefits guaranteed under this act.

18         (6)  It is the intent of the Legislature that all

19  managed care organizations be given notice of a violation of a

20  patient's rights and be provided with an opportunity to comply

21  with the law without the necessity of filing a civil action.

22  The Legislature recognizes, however, that the rights and

23  remedies identified in this act are necessary to properly

24  regulate the business of insurance in this state and to

25  protect the health, safety, and welfare of the people of this

26  state.

27         Section 3.  Managed care organization's patient's bill

28  of rights.--

29         (1)  It is a public policy of this state that the

30  interests of patients be recognized in a patient's bill of

31  rights and that a managed care organization or health care

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  1  provider may not require a patient to waive his or her rights

  2  as a condition of coverage or treatment. All managed care

  3  organizations shall adopt and provide patients with a copy of

  4  their rights as set forth in this section and shall treat

  5  patients in accordance with those rights. All managed care

  6  organizations shall assure that:

  7         (a)  A patient has the right to be treated fairly,

  8  honestly, with dignity, and with respect and has the right to

  9  privacy.

10         (b)  A patient has the right to receive adequate and

11  appropriate health care services that are accessible in a

12  reasonable and timely manner from any participating provider

13  designated by the patient.

14         (c)  A patient has the right to accurate and easily

15  understood information so that the patient may make informed

16  decisions about health plans, providers, facilities, and

17  treatment options.

18         (d)  A patient has the right to be provided medical

19  care by the managed care organization, with the goal of

20  maintaining the patient's good health and treating the

21  patient's medical conditions, as necessary and appropriate to

22  maintain good health.

23         (e)  A patient has the right to expedited decisions and

24  treatment of any covered condition that jeopardizes the life

25  or health of a patient or jeopardizes the patient's ability to

26  regain maximum function.

27         (f)  A patient has the right to a health care provider

28  that advocates on the patient's behalf for appropriate and

29  medically necessary health care without the patient's managed

30  care organization removing the provider from its plan or

31  refusing to renew the provider's contract due to such

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  1  advocacy. A managed care organization may not prohibit or

  2  restrict a health care provider from advising a patient about

  3  his or her health-care status or treatment options, regardless

  4  of whether coverage is provided under the contract.

  5         (g)  A patient has the right to be provided with timely

  6  notice of an adverse determination with respect to coverage

  7  for the patient, including notice of the reasons for the

  8  determination and the clinical rational or scientific-based

  9  evidence that was used to make the determination, which is

10  written in a manner that is understandable to the average

11  patient. A patient has the right to be informed of the

12  procedures necessary to obtain additional information

13  concerning an adverse determination and to be informed of the

14  right to submit a grievance regarding the determination. A

15  patient has the right to be provided with instructions on how

16  to submit a grievance. The managed care organization has the

17  burden of proving that an adverse determination is consistent

18  with the prevailing standards of medical practice in the

19  community.

20         (h)  Upon the recommendation of the primary care

21  physician, a patient has the right to a timely referral,

22  including payment preauthorization, for covered treatment

23  outside the managed care organization's provider network when,

24  in the judgment of the primary care physician, a managed care

25  organization does not have a provider in the network which

26  meets the particular health care needs of the patient. A

27  patient has the right to be notified of the procedure by which

28  he or she may obtain such referral.

29         (i)  If the contract between a managed care

30  organization and a health care provider is terminated, or if

31  benefits or coverage provided by a health care provider are

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  1  terminated because of a change in the terms of provider

  2  participation, and a patient is undergoing a course of

  3  treatment from the provider at the time of such termination,

  4  the patient has the right to timely notification of the

  5  termination and the right to continued coverage for the course

  6  of treatment with the provider, as set forth in section

  7  641.51(7), Florida Statutes.

  8         (j)  A patient has the right to receive a referral for

  9  medically necessary and appropriate specialty care from any

10  participating specialty care provider. If the patient has a

11  condition that requires ongoing care from a specialist, the

12  patient has the right to a standing referral to that

13  specialist, which is subject to review by the managed care

14  organization every 6 months to determine medical necessity.

15         (k)  A patient who has an emergency medical condition,

16  as defined in section 641.47, Florida Statutes, has the right

17  to coverage for emergency services:

18         1.  Without the need for prior authorization;

19         2.  Regardless of whether the health care provider is a

20  participating provider; and

21         3.  Without the patient being held liable for any

22  amount that exceeds the contracted amount or the amount

23  established under section 641.513, Florida Statutes, for

24  noncontracted providers.

25         (l)  A patient has the right to a managed care

26  organization that complies with all laws and rules that affect

27  coverage, claims, or treatment.

28         (m)  A patient has the right to receive any covered

29  services at no cost, other than for coinsurance, deductibles,

30  or copayments. A managed care organization, a provider, or the

31  agent of an organization or provider may not collect any

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  1  additional charge from a patient. In addition, a provider or

  2  the agent of a provider may not submit a patient's unpaid

  3  balance to a credit or collection agency while the patient has

  4  a grievance pending regarding the payment at issue if the

  5  patient has notified the provider that he or she has filed a

  6  grievance or submitted the grievance to the statewide provider

  7  and subscriber assistance panel as provided in section

  8  408.7056, Florida Statutes.

  9         (n)  A patient has the right to rely upon a

10  preauthorization or precertification for treatment made by a

11  managed care organization. Once a preauthorization or

12  precertification is made by the managed care organization and

13  the authorized or certified treatment is performed, the

14  managed care organization may not reverse its authorization or

15  certification, and the managed care organization may not

16  refuse to pay the covered amount for the authorized or

17  certified treatment performed.

18         (o)  A patient has the right to have his or her medical

19  history, records, and personal information kept confidential,

20  including the right to decline the dissemination or sale of

21  his or her medical history, records, or personal information,

22  unless otherwise required by law.

23         (p)  A patient has the right to gynecological,

24  maternity, or obstetric care from a participating provider who

25  specializes in such care without first obtaining an

26  authorization or a referral from the primary care provider.

27         (q)  To the extent that a managed care organization

28  provides coverage for benefits with respect to prescription

29  drugs and limits such coverage to drugs included in a

30  formulary, the organization must ensure participation of

31  physicians and pharmacists in developing and reviewing such

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  1  formulary, and, in accordance with applicable quality

  2  assurance and utilization review standards, the managed care

  3  organization must provide for exceptions from the formulary

  4  when a nonformulary alternative is medically necessary and

  5  appropriate.

  6         (r)  A patient has the right to be informed of all

  7  financial arrangements, financial interests in, or contractual

  8  provisions that the managed care organization has with

  9  utilization review companies or any other health care provider

10  or facility which would encourage or limit the type, amount,

11  duration, or scope of services offered or which would restrict

12  or limit referral of or treatment to patients, including, but

13  not limited to, financial incentives to limit, restrict, or

14  deny access to or delivery of medical or other services. A

15  managed care organization may not offer an incentive to a

16  provider to provide services to a patient which are less than

17  medically necessary.

18         (s)  A patient has the right to have tests evaluated by

19  a medically competent laboratory.

20         (t)  A patient has the right not to be subjected to

21  experimental treatments without his or her knowledge and

22  consent.

23         (u)  A patient has the right to be treated fairly by a

24  managed care organization and may not be discriminated against

25  in the delivery of health care services, consistent with the

26  benefits covered under the plan or coverage, or as required by

27  law based on race, color, creed, ethnicity, national origin,

28  religion, sex, age, marital status, place of residence, lawful

29  occupation, mental or physical disability, genetic

30  information, or source of payment. A managed care organization

31  may not refuse to cover, or continue to cover, any patient

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  1  solely because the patient has been previously refused

  2  coverage by a managed care organization when such refusal to

  3  cover, or continue to cover, for this reason occurs with such

  4  frequency as to indicate a general business practice as

  5  provided in section 626.9541(1)(x)5.

  6         (v)  A patient has the right not to be subjected to

  7  unfair and deceptive acts or practices by the managed care

  8  organization.

  9         (w)  A patient has the right to a description of how

10  the managed care organization addresses the needs of

11  non-English-speaking patients.

12         (x)  Patients and providers are responsible for

13  providing, to the best of their knowledge, accurate and

14  complete information about present complaints, past illnesses,

15  hospitalizations, medications, and other matters that relate

16  to the patient's health.

17         (y)  A patient is responsible for reporting unexpected

18  changes in his or her condition.

19         (z)  A patient is responsible for reporting to the

20  recommending physician whether he or she understands a

21  contemplated medical course of action and what is expected of

22  him or her.

23         (aa)  A patient is responsible for following the

24  treatment plan recommended.

25         (bb)  A patient is responsible for keeping appointments

26  and, when he or she is unable to do so for any reason, for

27  notifying the health care provider or health care facility.

28         (cc)  A patient is responsible for following the

29  procedures of the managed care organization for selecting a

30  primary care physician and obtaining referrals.

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  1         (dd)  A patient is responsible for reading and ensuring

  2  the accuracy and completeness of information on an application

  3  to the best of his or her ability, and for not signing any

  4  blank, incomplete, or inaccurate form.

  5         (ee)  A patient is responsible for reading and

  6  understanding the contract of his or her managed care

  7  organization.

  8         (ff)  A patient is responsible for paying the monthly

  9  premium, even if the patient is involved in a financial

10  dispute with the managed care organization.

11         (gg)  A patient is responsible for paying his or her

12  coinsurance, deductibles, or copayments.

13         (hh)  A patient is responsible for arranging for prior

14  approval before accepting care from a noncontracted provider,

15  except in an emergency, as defined in section 641.19, Florida

16  Statutes, and for understanding the financial consequences of

17  failing to obtain prior approval.

18         Section 4.  Civil remedy to enforce rights.--

19         (1)  Any person whose rights, as specified in section

20  3, are violated has a cause of action against the managed care

21  organization or provider. The action may be brought by the

22  person, by the person's guardian, by an individual or

23  organization acting on behalf of the person with the consent

24  of the person or his or her guardian, or by the personal

25  representative of the estate of a deceased person. The action

26  may be brought in any court of competent jurisdiction to

27  enforce such rights and recover actual and punitive damages

28  for any violation of the rights of the person. The damages

29  recoverable include all reasonably foreseeable harm caused by

30  the violation of the rights specified in section 3. The

31  damages are not limited by any other state law. Punitive

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  1  damages may be awarded for conduct that is willful, wanton,

  2  gross, flagrant, reckless, or consciously indifferent to the

  3  rights of an individual protected by this act. Any plaintiff

  4  who prevails in such an action may recover reasonable

  5  attorney's fees, costs of the action, and damages, unless the

  6  court finds that the plaintiff has acted in bad faith or with

  7  malicious purpose or that there was a complete absence of a

  8  justiciable issue of law or fact. A prevailing defendant may

  9  claim reasonable attorney's fees under section 57.105, Florida

10  Statutes. The remedies provided in this section are remedial

11  and are in addition to and cumulative with all other legal,

12  equitable, administrative, contractual, or informal remedies

13  available to the people of this state or to state agencies.

14         (2)  Upon an adverse adjudication, the defendant is

15  liable for actual and punitive damages as provided in

16  subsection (1) or $500 per violation of the managed care

17  organization's patient's bill of rights, whichever is greater,

18  together with court costs and reasonable attorney's fees

19  incurred by the plaintiff.

20         (3)  This section does not create any liability on the

21  part of an employer of a patient or that employer's employees,

22  unless the employer is the patient's managed care entity. This

23  section does not create any liability on the part of an

24  employee organization, a voluntary employee-beneficiary

25  organization, or a similar organization, unless such

26  organization is the patient's managed care entity and makes

27  coverage determinations under a managed care plan.

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

29  under this section, the patient must have submitted a written

30  grievance to the managed care organization and received a

31  final disposition of the grievance from the managed care

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  1  organization. For purposes of this section, if a managed care

  2  organization fails to render a final disposition of the

  3  grievance within 90 days, the disposition shall be deemed to

  4  be adverse to the managed care organization. The 90-day time

  5  limit does not apply if the medical records necessary for a

  6  review of the grievance are not available or if a delay in the

  7  final disposition of the grievance is caused by the patient.

  8         (b)  If the patient does not submit a grievance to the

  9  managed care organization within 1 year after the action

10  giving rise to the grievance, as required by section

11  641.511(1), Florida Statutes, the patient is not required to

12  submit a grievance as a condition precedent to initiating and

13  maintaining a cause of action to enforce his or her rights.

14  However, the patient must provide 60 days' written notice to

15  the managed care organization of the patient's intent to

16  pursue a civil action for a violation of the managed care

17  organization's patient's bill of rights. The notice must

18  include:

19         1.  The alleged violation of the patient's rights.

20         2.  The facts and circumstances giving rise to the

21  violation.

22         3.  The name of any individual involved in the

23  violation.

24         4.  A statement that the notice is given in order to

25  give the managed care organization the opportunity to comply

26  with the law.

27         (5)  If the patient does not comply with subsection

28  (4), the court may not dismiss the action, but may order that

29  the patient complete the internal grievance procedure of the

30  managed care organization, as provided in paragraph (4)(a), or

31  give the 60-day notice, as provided in paragraph (4)(b). The

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  1  court may abate the action for such purposes for not more than

  2  90 days. Such orders of the court are the only remedies

  3  available to a party that complains of a patient's failure to

  4  comply with subsection (4).

  5         (6)  Subsection (4) does not apply if harm to the

  6  patient has already occurred or is imminent.

  7         (7)  The statute of limitations with respect to an

  8  action that may be brought under this section is tolled upon

  9  submission of a grievance in accordance with section 641.511,

10  Florida Statutes, or submission of 60 days' notice, whichever

11  is applicable, and the time such grievance or notice is

12  pending is not included within the period limiting the time

13  for bringing such action.

14         (8)  There is no other condition precedent to bringing

15  an action under this section.

16         (9)(a)  It is the intent of the Legislature that this

17  section provide to the people of this state the ability to

18  enforce their rights through equitable, injunctive, or other

19  relief, in addition to relief for monetary damages. A claim

20  for nonmonetary relief may be brought in conjunction with a

21  claim for monetary damages by complying with subsection (4).

22         (b)  An action for nonmonetary relief may also be

23  brought under this section without complying with the

24  conditions precedent that are identified in subsection (4) if

25  immediate relief is necessary to prevent potential death or

26  serious bodily harm. The court shall provide for an expedited

27  hearing to resolve the matter in a manner designed to avoid

28  potential death or serious bodily harm.

29         Section 5.  If any provision of this act or its

30  application to any person or circumstance is held invalid, the

31  invalidity does not affect other provisions or applications of

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  1  the act which can be given effect without the invalid

  2  provision or application, and to this end the provisions of

  3  this act are severable.

  4         Section 6.  This act shall take effect October 1, 2000.

  5

  6            *****************************************

  7                          SENATE SUMMARY

  8    Creates the "Managed Care Organization's Patient's Bill
      of Rights." Provides that managed care organizations own
  9    a fiduciary duty to provide quality health care and
      health benefits to the people of this state. Requires
10    that managed care organizations provide patients with a
      copy of their rights. Authorizes civil remedies to
11    enforce the patient's bill of rights. Requires that a
      plaintiff submit a written grievance before bringing an
12    action for damages. Authorizes an action for nonmonetary
      relief without complying with other requirements to
13    prevent imminent death or serious bodily harm. (See bill
      for details.)
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