Senate Bill sb0984

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    Florida Senate - 2001                                   SB 984

    By Senator Brown-Waite





    10-915-01                                           See HB 317

  1                      A bill to be entitled

  2         An act relating to health maintenance

  3         organizations; creating the "Managed Care

  4         Organization's Patient's Bill of Rights";

  5         providing legislative findings and intent;

  6         specifying that the purpose of the act is to

  7         ensure that quality health care and health

  8         benefits are provided to the people of this

  9         state; providing that managed care

10         organizations owe a fiduciary duty to provide

11         such care; creating s. 641.275, F.S.; providing

12         legislative intent that the rights and

13         responsibilities of subscribers who are covered

14         under health maintenance organization contracts

15         be recognized and summarized; requiring health

16         maintenance organizations to operate in

17         conformity with such rights; requiring

18         organizations to provide subscribers with a

19         copy of their rights and responsibilities;

20         listing specified requirements for

21         organizations that are currently required by

22         other statutes; authorizing civil remedies to

23         enforce the rights specified in s. 641.275,

24         F.S.; providing for actual and punitive damages

25         and attorney's fees and costs; providing for

26         administrative fines; providing that there is

27         not any liability on the part of certain

28         employers or employee organizations; requiring

29         a plaintiff to submit a written grievance as a

30         condition precedent to bringing an action for

31         damages; requiring that a managed care

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1         organization dispose of a grievance within a

  2         specified period; requiring notice of an action

  3         to enforce the rights provided under the act;

  4         authorizing the court to abate an action and

  5         require completion of an internal grievance

  6         procedure; providing certain exceptions;

  7         providing for the statute of limitations to be

  8         tolled under specified circumstances;

  9         authorizing an action for nonmonetary relief

10         without complying with conditions precedent for

11         the purpose of preventing potential death or

12         serious bodily harm; providing for

13         severability; providing an effective date.

14

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

16

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

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

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

20         Section 2.  Legislative findings and intent.--

21         (1)  The Legislature finds that:

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

23  this state are fundamental state interests that the

24  Legislature is responsible for protecting through the laws of

25  this state.

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

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

28  safety, and welfare of state residents.

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

30  managed care organizations and that the term "managed care

31  organization" include health insurance carriers; health

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1  maintenance organizations; health service plans; other managed

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

  3  entities regulated under chapters 624 through 631, Florida

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

  5  health care benefits. Managed care organizations are engaged

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

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

  8  seq.

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

10  business of insurance and to ensure that appropriate quality

11  health care and health benefits are provided through managed

12  health care to the people of this state.

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

14  the people of this state to ensure appropriate quality health

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

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

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

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

19  this act creates substantive rights for quality health care

20  and health benefits and provides remedies under state law for

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

22  organization to meet appropriate standards for quality health

23  care and health benefits guaranteed under this act.

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

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

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

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

28  The Legislature recognizes, however, that the rights and

29  remedies identified in this act are necessary to properly

30  regulate the business of insurance in this state and to

31

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




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

  2  state.

  3         Section 3.  Section 641.275, Florida Statutes, is

  4  created to read:

  5         641.275  Subscriber's rights and responsibilities under

  6  health maintenance contracts; required notice.--

  7         (1)  It is the intent of the Legislature that the

  8  rights and responsibilities of subscribers who are covered

  9  under health maintenance organization contracts be recognized

10  and summarized in a statement of subscriber rights and

11  responsibilities. An organization may not require a subscriber

12  to waive his or her rights as a condition of coverage or

13  treatment and must operate in conformity with such rights.

14         (2)  Each organization must provide subscribers with a

15  copy of their rights and responsibilities as set forth in this

16  section, in such form as approved by the department.

17         (3)  An organization shall:

18         (a)  Ensure that health care services provided to

19  subscribers are rendered under reasonable standards of quality

20  of care consistent with the prevailing standards of medical

21  practice in the community, as required by s. 641.51.

22         (b)  Have a quality assurance program for health care

23  services, as required by s. 641.51.

24         (c)  Not modify the professional judgment of a

25  physician unless the course of treatment is inconsistent with

26  the prevailing standards of medical practice in the community,

27  as required by s. 641.51.

28         (d)  Not restrict a provider's ability to communicate

29  information to the subscriber or patient regarding medical

30  care options that are in the best interest of the subscriber

31  or patient, as required by s. 641.315(5).

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1         (e)  Provide for standing referrals to specialists for

  2  subscribers with chronic and disabling conditions, as required

  3  by s. 641.51.

  4         (f)  Allow a female subscriber to select an

  5  obstetrician/gynecologist as her primary care physician, as

  6  required by s. 641.19(13)(e).

  7         (g)  Provide direct access, without prior

  8  authorization, for a female subscriber to visit a

  9  obstetrician/gynecologist, as required by s. 641.51(11).

10         (h)  Provide direct access, without prior

11  authorization, to a dermatologist, as required by s.

12  641.31(33).

13         (i)  Not limit coverage for the length of stay in a

14  hospital for a mastectomy for any time period that is less

15  than that determined to be medically necessary by the treating

16  physician, as required by s. 641.31(31).

17         (j)  Not limit coverage for the length of a maternity

18  or newborn stay in a hospital or for followup care outside the

19  hospital to any time period less than that determined to be

20  medically necessary by the treating provider, as required by

21  s. 641.31(18).

22         (k)  Not exclude coverage for bone marrow transplant

23  procedures determined by the Agency for Health Care

24  Administration to not be experimental, as required by s.

25  627.4236.

26         (l)  Not exclude coverage for drugs on the ground that

27  the drug is not approved by the United States Food and Drug

28  Administration, as required by s. 627.4239.

29         (m)  Give the subscriber the right to a second medical

30  opinion as required by s. 641.51(5).

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1         (n)  Allow subscribers to continue treatment from a

  2  provider after the provider's contract with the organization

  3  has been terminated, as required by s. 641.51(8).

  4         (o)  Establish a procedure for resolving subscriber

  5  grievances, including review of adverse determinations by the

  6  organization and expedited review of urgent subscriber

  7  grievances, as required by s. 641.511.

  8         (p)  Notify subscribers of the right to an independent

  9  external review of grievances not resolved by the

10  organization, as required by s. 408.7056.

11         (q)  Provide, without prior authorization, coverage for

12  emergency services and care, as required by s. 641.513.

13         (r)  Not require or solicit genetic information or use

14  genetic test results for any insurance purposes, as required

15  by s. 627.4301.

16         (s)  Promptly pay or deny claims as required by s.

17  641.3155.

18         (t)  Provide information to subscribers regarding

19  benefits, limitations, resolving grievances, emergency

20  services and care, treatment by noncontract providers, list of

21  contract providers, authorization and referral process, the

22  process used to determine whether services are medically

23  necessary, quality assurance program, prescription drug

24  benefits and use of a drug formulary, confidentiality and

25  disclosure of medical records, process of determining

26  experimental or investigational medical treatments, and

27  process used to examine qualifications of contract providers,

28  as required by ss. 641.31, 641.495, and 641.54.

29         (4)  The statement of rights in subsection (3) is a

30  summary of selected requirements for organizations contained

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1  in other sections of the Florida Statutes. This section does

  2  not alter the requirements of such other sections.

  3         (5)(a)  Patients and providers are responsible for

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

  5  complete information about present complaints, past illnesses,

  6  hospitalizations, medications, and other matters that relate

  7  to the patient's health.

  8         (b)  A patient is responsible for reporting unexpected

  9  changes in his or her condition.

10         (c)  A patient is responsible for reporting to the

11  recommending physician whether he or she understands a

12  contemplated medical course of action and what is expected of

13  him or her.

14         (d)  A patient is responsible for following the

15  treatment plan recommended.

16         (e)  A patient is responsible for keeping appointments

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

18  notifying the health care provider or health care facility.

19         (f)  A patient is responsible for following the

20  procedures of the managed care organization for selecting a

21  primary care physician and obtaining referrals.

22         (g)  A patient is responsible for reading and ensuring

23  the accuracy and completeness of information on an application

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

25  blank, incomplete, or inaccurate form.

26         (h)  A patient is responsible for reading and

27  understanding the contract of his or her managed care

28  organization.

29         (i)  A patient is responsible for paying the monthly

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

31  dispute with the managed care organization.

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1         (j)  A patient is responsible for paying his or her

  2  coinsurance, deductibles, or copayments.

  3         (k)  A patient is responsible for arranging for prior

  4  approval before accepting care from a noncontracted provider,

  5  except in an emergency, as defined in s. 641.19, and for

  6  understanding the financial consequences of failing to obtain

  7  prior approval.

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

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

10  641.275, Florida Statutes, are violated has a cause of action

11  against the managed care organization or provider. The action

12  may be brought by the person, by the person's guardian, by an

13  individual or organization acting on behalf of the person with

14  the consent of the person or his or her guardian, or by the

15  personal representative of the estate of a deceased person.

16  The action may be brought in any court of competent

17  jurisdiction to enforce such rights and recover actual and

18  punitive damages for any violation of the rights of the

19  person. The damages recoverable include all reasonably

20  foreseeable harm caused by the violation of the rights

21  specified in section 641.275, Florida Statutes. The damages

22  are not limited by any other state law. Punitive damages may

23  be awarded for conduct that is willful, wanton, gross,

24  flagrant, reckless, or consciously indifferent to the rights

25  of an individual protected by this act. Any plaintiff who

26  prevails in such an action may recover reasonable attorney's

27  fees, costs of the action, and damages, unless the court finds

28  that the plaintiff has acted in bad faith or with malicious

29  purpose or that there was a complete absence of a justiciable

30  issue of law or fact. A prevailing defendant may claim

31  reasonable attorney's fees under section 57.105, Florida

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1  Statutes. The remedies provided in this section are remedial

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

  3  equitable, administrative, contractual, or informal remedies

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

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

  6  liable for actual and punitive damages as provided in

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

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

  9  together with court costs and reasonable attorney's fees

10  incurred by the plaintiff.

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

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

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

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

15  employee organization, a voluntary employee-beneficiary

16  organization, or a similar organization, unless such

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

18  coverage determinations under a managed care plan.

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

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

21  grievance to the managed care organization and received a

22  final disposition of the grievance from the managed care

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

24  organization fails to render a final disposition of the

25  grievance within 30 days, the disposition shall be deemed to

26  be adverse to the managed care organization. The 30-day time

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

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

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

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

31  managed care organization within 1 year after the action

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1  giving rise to the grievance, as required by s. 641.511(1),

  2  Florida Statutes, the patient is not required to submit a

  3  grievance as a condition precedent to initiating and

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

  5  However, the patient must provide 30 days' written notice to

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

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

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

  9  include:

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

11         2.  The facts and circumstances giving rise to the

12  violation.

13         3.  The name of any individual involved in the

14  violation.

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

16  give the managed care organization the opportunity to comply

17  with the law.

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

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

20  the patient complete the internal grievance procedure of the

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

22  give the 30 days' notice, as provided in paragraph (4)(b). The

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

24  60 days. Such orders of the court are the only remedies

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

26  comply with subsection (4).

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

28  patient has already occurred or is imminent.

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

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

31  submission of a grievance in accordance with section 641.511,

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1  Florida Statutes, or submission of 30 days' notice, whichever

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

  3  pending is not included within the period limiting the time

  4  for bringing such action.

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

  6  an action under this section.

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

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

  9  enforce their rights through equitable, injunctive, or other

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

11  for nonmonetary relief may be brought in conjunction with a

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

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

14  brought under this section without complying with the

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

16  immediate relief is necessary to prevent potential death or

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

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

19  potential death or serious bodily harm.

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

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

22  invalidity does not affect other provisions or applications of

23  the act which can be given effect without the invalid

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

25  this act are severable.

26         Section 6.  This act shall take effect July 1, 2001,

27  and shall apply to contracts issued or renewed on or after

28  that date.

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    Florida Senate - 2001                                   SB 984
    10-915-01                                           See HB 317




  1            *****************************************

  2                       LEGISLATIVE SUMMARY

  3
      Creates the "Managed Care Organization's Patient's Bill
  4    of Rights." Provides legislative intent that the rights
      and responsibilities of subscribers who are covered under
  5    health maintenance organization contracts be recognized
      and summarized. Requires health maintenance organizations
  6    to operate in conformity with such rights and to provide
      subscribers with a copy of their rights and
  7    responsibilities. Lists specified requirements for
      organizations that are currently required by other
  8    statutes. Authorizes civil remedies to enforce the rights
      specified in the act. Provides for actual and punitive
  9    damages, attorney's fees and costs, and administrative
      fines. Provides that there is not any liability on the
10    part of certain employers or employee organizations.
      Requires a plaintiff to submit a written grievance as a
11    condition precedent to bringing an action for damages.
      Requires that a managed care organization dispose of a
12    grievance within a specified period. Requires notice of
      an action to enforce the rights provided under the act.
13    Authorizes the court to abate an action and require
      completion of an internal grievance procedure, and
14    provides certain exceptions. Provides for the statute of
      limitations to be tolled under specified circumstances.
15    Authorizes an action for nonmonetary relief without
      complying with conditions precedent for the purpose of
16    preventing potential death or serious bodily harm.

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