House Bill 0291

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    Florida House of Representatives - 2000                 HB 291

        By Representatives Sobel, Kelly, Ritchie and Jacobs






  1                      A bill to be entitled

  2         An act relating to managed care; creating the

  3         "Managed Care Organization Accountability Act

  4         of 2000"; providing legislative intent;

  5         providing definitions; providing for

  6         responsibility to patients; providing duty to

  7         exercise ordinary care when making health care

  8         treatment decisions; providing for liability;

  9         providing certain defenses in actions against a

10         health insurance carrier, health maintenance

11         organization, or managed care entity; providing

12         severability; providing an effective date.

13

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

15

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

17  "Managed Care Organization Accountability Act of 2000."

18         Section 2.  Legislative findings and intent.--The

19  Legislature finds and declares as follows:

20         (1)  Based on the fundamental nature of the

21  relationships involved, a health insurance carrier, health

22  maintenance organization, or other managed care entity

23  regulated under chapter 627 or chapter 641, Florida Statutes,

24  is engaged in the business of insurance in this state as that

25  term is defined for purposes of the McCarran-Ferguson Act, 15

26  U.S.C. s. 1011 et seq.

27         (2)  The state's interest in regulating the business of

28  insurance as provided in this act is to protect insurance

29  purchasers and their beneficiaries, including employees and

30  their dependents and families, and any other patients covered

31  by private employer-sponsored health and disability insurance,

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  1  from the harm that may occur when insurance entities,

  2  including managed health care insurance entities, act

  3  improperly.

  4         (3)  Undue influence by a health care service plan or

  5  managed care entity based upon financial interests interferes

  6  with the role of the provider as the determiner of the

  7  patient's health care needs. A health care service plan,

  8  having established the organizational structure that fosters

  9  this conduct, should bear the liability for the injury

10  resulting from that conduct.

11         (4)  It is the intent of the Legislature in enacting

12  this act to do all of the following:

13         (a)  To provide state law remedies to health care

14  service plan members and enrollees and other insureds when

15  they suffer injury, whether it is physical, mental, emotional,

16  or economic, as a result of the failure of a health care

17  service plan or a medical insurer to provide quality health

18  care services to patients.

19         (b)  To ensure that adequate state law remedies exist

20  for all persons who are subject to the wrongful acts of those

21  entities that promise insurance for the life, health, and

22  disability of Florida citizens. The existence of these

23  remedies and the deterrent effects of these remedies is

24  necessary to protect the health and safety of the residents of

25  this state.

26         (c)  To address the harm caused to health care service

27  plan members and enrollees or other insureds by the failure or

28  refusal of the health care service plan or any other insurer

29  to timely approve members' requests for health care services

30  that are medically appropriate and that are health care

31  services otherwise provided as benefits under the plan. When

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  1  the health care services are otherwise set forth as benefits

  2  to be provided under the plan, the failure or refusal to

  3  provide those benefits when they are medically appropriate

  4  constitutes a breach of the health care service plan's or

  5  other insurer's duty of care to provide health care services

  6  at a level of quality acceptable in this act.

  7         (5)  The Legislature finds that this act will fulfill

  8  an important state interest.

  9         Section 3.  Definitions; legal responsibility and duty

10  to exercise ordinary care; civil remedy.--

11         (1)  As used in this section, the term:

12         (a)  "Appropriate and medically necessary" means the

13  standard for health care services as determined by physicians

14  and health care providers in accordance with the prevailing

15  practices and standards of the medical profession and

16  community.

17         (b)  "Enrollee" means an individual who is enrolled in

18  a health care plan, including covered dependents.

19         (c)  "Health care plan" means any plan whereby any

20  person undertakes to provide, arrange for, pay for, or

21  reimburse any part of the cost of any health care services.

22         (d)  "Health care provider" means any physician,

23  hospital, or other institution, organization, or person that

24  furnishes health care services and is licensed or otherwise

25  authorized to practice in this state.

26         (e)  "Health care treatment decision" means a

27  determination made when medical services are actually provided

28  by the health care plan and any decision which affects the

29  quality of the diagnosis, care, or treatment provided to the

30  plan's insureds or enrollees.

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  1         (f)  "Health insurance carrier" means an authorized

  2  insurance company that issues policies of accident and

  3  sickness insurance under chapter 627, Florida Statutes.

  4         (g)  "Health maintenance organization" means an

  5  organization licensed under chapter 641, Florida Statutes.

  6         (h)  "Managed care entity" means any entity that

  7  delivers, administers, or assumes risk for health care

  8  services with systems or techniques to control or influence

  9  the quality, accessibility, utilization, or costs and prices

10  of such services to a defined enrollee population, but does

11  not include an employer purchasing coverage or acting on

12  behalf of its employees or the employees of one or more

13  subsidiaries or affiliated corporations of the employer or a

14  pharmacy licensed by the Board of Pharmacy.

15         (i)  "Physician" means an individual licensed to

16  practice medicine in this state pursuant to chapter 458 or

17  chapter 459, Florida Statutes.

18         (j)  "Ordinary care" means, in the case of a health

19  insurance carrier, health maintenance organization, or managed

20  care entity, that degree of care that a health insurance

21  carrier, health maintenance organization, or managed care

22  entity of ordinary prudence would use under the same or

23  similar circumstances. In the case of a person who is an

24  employee, agent, ostensible agent, or representative of a

25  health insurance carrier, health maintenance organization, or

26  managed care entity, "ordinary care" means that degree of care

27  that a person of ordinary prudence in the same profession,

28  specialty, or area of practice as such person would use in the

29  same or similar circumstances.

30         (2)  A health insurance carrier, health maintenance

31  organization, or other managed care entity shall be legally

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  1  responsible to patients to ensure that health care providers,

  2  rather than the health care service plan, are in charge of

  3  patient care.

  4         (3)  A health insurance carrier, health maintenance

  5  organization, or other managed care entity for a health care

  6  plan has the duty to exercise ordinary care when making health

  7  care treatment decisions and is liable for damages for harm to

  8  an insured or enrollee proximately caused by its failure to

  9  exercise such ordinary care.

10         (4)  A health insurance carrier, health maintenance

11  organization, or other managed care entity or a health care

12  plan is also liable for damages for harm to an insured or

13  enrollee proximately caused by the health care treatment

14  decisions made by its:

15         (a)  Employees;

16         (b)  Agents;

17         (c)  Ostensible agents; or

18         (d)  Representatives,

19

20  who are acting on its behalf and over whom it has the right to

21  exercise influence or control or has actually exercised

22  influence or control which result in the failure to exercise

23  ordinary care.

24         (5)  It shall be a defense to any action asserted

25  against a health insurance carrier, health maintenance

26  organization, or other managed care entity for a health care

27  plan that:

28         (a)  Neither the health insurance carrier, health

29  maintenance organization, or other managed care entity, nor

30  any employee, agent, ostensible agent, or representative for

31  whose conduct such health insurance carrier, health

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  1  maintenance organization, or other managed care entity is

  2  liable under subsection (4), controlled, influenced, or

  3  participated in the health care treatment decision.

  4         (b)  The health insurance carrier, health maintenance

  5  organization, or other managed care entity did not deny or

  6  delay payment for any treatment prescribed or recommended by a

  7  provider to the insured or enrollee.

  8         (6)  A health insurance carrier, health maintenance

  9  organization, or other managed care entity shall not seek

10  indemnity, whether contractual or equitable, from a provider

11  for liability imposed under this section. Any provision to the

12  contrary in a contract with providers is void and

13  unenforceable.

14         (7)  Any waiver of the provisions of this section by a

15  member, subscriber, or enrollee is contrary to public policy

16  and shall be unenforceable and void.

17         (8)  This section does not abrogate or limit any other

18  theory of liability otherwise available at law.

19         (9)  The standards in this section create no obligation

20  on the part of the health insurance carrier, health

21  maintenance organization, or other managed care entity to

22  provide to an insured or enrollee treatment which is not

23  covered by the health care plan of the entity.

24         (10)  This section does not create any liability on the

25  part of an employer, an employer group purchasing

26  organization, or a pharmacy licensed by the Board of Pharmacy

27  that purchases coverage or assumes risk on behalf of its

28  employees.

29         (11)  Nothing in any law of this state prohibiting a

30  health insurance carrier, health maintenance organization, or

31  other managed care entity from practicing medicine or being

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  1  licensed to practice medicine may be asserted as a defense by

  2  such health insurance carrier, health maintenance

  3  organization, or other managed care entity in an action

  4  brought against it pursuant to this section or any other law.

  5         (12)  In an action against a health insurance carrier,

  6  health maintenance organization, or managed care entity, a

  7  finding that a physician or other health care provider is an

  8  employee, agent, ostensible agent, or representative of such

  9  health insurance carrier, health maintenance organization, or

10  managed care entity shall not be based solely on proof that

11  such person's name appears in a listing of approved physicians

12  or health care providers made available to insureds or

13  enrollees under a health care plan.

14         (13)  If any provision of this section or the

15  application thereof to any person or circumstance is held to

16  be unconstitutional or otherwise invalid or unenforceable, the

17  remainder of the section and the application of those

18  provisions to other persons or circumstances shall not be

19  affected thereby.

20         Section 4.  This act shall take effect July 1, 2000.

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22            *****************************************

23                          HOUSE SUMMARY

24
      Creates the "Managed Care Organization Accountability Act
25    of 2000." Provides legislative findings and intent.
      Provides definitions. Provides that health insurance
26    carriers, health maintenance organizations, and other
      managed care entities have certain legal responsibility
27    with respect to patient care. Providing for the duty to
      exercise ordinary care when making health care treatment
28    decisions. Providing for liability for damages for harm
      caused by treatment decisions made by employees and
29    agents of such entities and failure to exercise ordinary
      care. Providing certain defenses in actions against such
30    entities.

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