Senate Bill sb1080
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Florida Senate - 2002 SB 1080
By Senator Campbell
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1 A bill to be entitled
2 An act relating to health care; requiring
3 health maintenance organizations to provide for
4 the resolution of grievances brought by
5 subscribers; specifying the services to be
6 included in a grievance system; requiring
7 health maintenance organizations to establish
8 an informal appeal process; providing for a
9 formal internal appeal process; providing for
10 an external appeal when a subscriber is
11 dissatisfied with the results of a formal
12 appeal; providing for the grievance to be
13 reviewed by an independent utilization-review
14 organization; providing for a party to appeal a
15 decision by the utilization-review organization
16 to the Agency for Health Care Administration;
17 requiring that the Agency for Health Care
18 Administration enter into contracts with
19 utilization-review organizations for the
20 purpose of reviewing appeals; authorizing the
21 agency to adopt rules; providing for the right
22 of a subscriber to maintain an action against a
23 health maintenance organization; defining
24 terms; providing that a health maintenance
25 organization has the duty to exercise ordinary
26 care when making treatment decisions; providing
27 that a health maintenance organization is
28 liable for damages for harm caused by failure
29 to exercise ordinary care; providing certain
30 limitations on actions; providing for a claim
31 of liability to be reviewed by an independent
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1 review organization; providing for the statute
2 of limitations to be tolled under certain
3 circumstances; requiring a health maintenance
4 organization to disclose certain information to
5 subscribers and prospective subscribers;
6 specifying additional information that must be
7 provided upon the request of a subscriber or
8 prospective subscriber; requiring that a health
9 maintenance organization provide notice if a
10 provider is unavailable to render services;
11 prescribing requirements for the notice;
12 requiring health maintenance organizations to
13 make certain allowances in developing provider
14 profiles and measuring the performance of
15 health care providers; providing for such
16 information to be made available to the
17 Department of Insurance, the Agency for Health
18 Care Administration, and subscribers;
19 prohibiting a health maintenance organization
20 from taking retaliatory action against an
21 employee for certain actions or disclosures
22 concerning improper patient care; requiring
23 that a health maintenance organization refer a
24 subscriber to an outside provider when there is
25 not a provider within the organization's
26 network to provide a covered benefit;
27 specifying circumstances under which a health
28 maintenance organization must refer a
29 subscriber to a specialist; limiting the cost
30 of services provided by a nonparticipating
31 provider; requiring that a health maintenance
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1 organization provide a procedure to allow a
2 subscriber to obtain drugs that are not
3 included in the organization's drug formulary;
4 prohibiting a health maintenance organization
5 from arbitrarily interfering with certain
6 decisions of a health care provider;
7 prohibiting a health maintenance organization
8 from discriminating against a subscriber based
9 on race, national origin, and other factors;
10 requiring health maintenance organizations to
11 establish a policy governing the termination of
12 health care providers; providing requirements
13 for the policy; authorizing the Insurance
14 Commissioner to suspend or revoke a certificate
15 of authority upon finding certain violations by
16 a health maintenance organization; providing
17 for civil penalties; repealing s. 641.513,
18 F.S., relating to requirements for providing
19 emergency services and care; prohibiting
20 coercion of provider selection; amending s.
21 627.419, F.S.; providing free choice to
22 subscribers to certain health care plans, and
23 to persons covered under certain health
24 insurance policies or contracts, in the
25 selection of specified health care providers;
26 specifying conditions under which any health
27 care provider must be permitted to provide
28 services under a health care plan or health
29 insurance policy or contract; providing
30 limitations; providing for civil penalties;
31 providing application; amending s. 641.28,
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1 F.S.; limiting the parties that may recover
2 attorney's fees and court costs in an action to
3 enforce the terms of a health maintenance
4 contract; providing an effective date.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Managed-care bill of rights.--
9 (1) GENERAL PROVISIONS.--
10 (a) Each health maintenance organization shall
11 establish a system to provide for the presentation and
12 resolution of grievances brought by a subscriber or brought by
13 a representative or provider acting on behalf of a subscriber
14 and with the subscriber's consent. Such grievance may include,
15 but need not be limited to, complaints regarding referral to a
16 specialist, quality of care, choice and accessibility of
17 providers, network adequacy, termination of coverage, denial
18 of approval for coverage, or other limitations in the receipt
19 of health care services. Each system for resolving grievances
20 must be in writing, must be given to each subscriber and each
21 provider, and must be incorporated into the health maintenance
22 contract. Each grievance system must include:
23 1. The provision of the telephone numbers and business
24 addresses of each employee of the health maintenance
25 organization who is responsible for grievance resolution.
26 2. A system to record and document the status of all
27 grievances, which must be maintained for at least 3 years.
28 3. The services of a representative to assist
29 subscribers with grievance procedures upon request.
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1 4. Establishment of a specified response time for the
2 resolution of grievances, which may not exceed the time limits
3 set forth in subsection (2) or subsection (3).
4 5. A detailed description of how grievances are
5 processed and resolved.
6 6. A requirement that the determination must set forth
7 the basis for any denial and include specific information
8 concerning appeal rights, procedures for an independent
9 external appeal, to whom and where to address any appeal, and
10 the applicable deadlines for appeal.
11 (b) If a health maintenance organization fails to
12 comply with any of the deadlines at any stage of the
13 organization's internal review process, or waives the
14 completion of the process, the subscriber, or the subscriber's
15 representative or provider, is relieved of the obligation to
16 complete the process and may proceed directly to the external
17 appeals process set forth in subsection (4).
18 (c) All time limits set forth in subsections (2), (3),
19 and (4) must include an additional 3 days for mailing
20 following the date of the postmark. A decision with respect to
21 urgent or emergency care must also be communicated by
22 telephone.
23 (2) INFORMAL APPEAL PROCESS.--
24 (a) Each health maintenance organization must
25 establish and maintain an informal internal appeal process
26 whereby any subscriber, or representative or provider acting
27 on behalf of a subscriber and with the subscriber's consent,
28 who has a grievance concerning any of the actions by the
29 health maintenance organization as described in paragraph
30 (1)(a) or related thereto, shall be given the opportunity to
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1 discuss and appeal that determination to the medical director
2 or the physician designee who rendered the determination.
3 (b) An informal appeal under this subsection must be
4 concluded as soon as possible in accordance with the medical
5 exigencies of the case. If the appeal is from a determination
6 regarding urgent or emergency care, the appeal must be
7 resolved within 72 hours after the initial contact by the
8 subscriber or the subscriber's representative or provider. In
9 the case of all other appeals, the appeal must be resolved
10 within 5 business days after the initial contact by the
11 subscriber or the subscriber's representative or provider. If
12 an appeal under this subsection is not resolved to the
13 satisfaction of the subscriber, the health maintenance
14 organization shall provide to the subscriber, the subscriber's
15 provider, and the subscriber's representative, if applicable,
16 a written explanation of the basis for the decision on the
17 grievance and notification of the right to proceed to a formal
18 appeals process under subsection (3). The notice must be
19 postmarked within the applicable time limits prescribed in
20 this paragraph.
21 (3) FORMAL INTERNAL APPEAL PROCESS.--
22 (a) Each health maintenance organization shall
23 establish and maintain a formal internal appeal process
24 whereby any subscriber, or representative or provider acting
25 on behalf of a subscriber and with the subscriber's consent,
26 who is dissatisfied with the results of the informal appeal
27 under subsection (2) may pursue the subscriber's appeal before
28 a panel of physicians selected by the health maintenance
29 organization who have not been involved in the determination
30 being appealed.
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1 (b) The members of the formal appeal panel must
2 include consultant practitioners who are trained in or who
3 practice in the same specialty that would typically manage the
4 case being appealed or must include other licensed health care
5 professionals who are mutually agreed upon by the parties. The
6 consulting practitioners or professionals may not have been
7 involved in the determination being appealed. The consulting
8 practitioners or professionals must participate in the panel's
9 review of the case at the request of the subscriber or the
10 subscriber's representative or provider.
11 (c) Within 10 business days after an appeal is filed
12 under this subsection, the health maintenance organization
13 must acknowledge in writing to the subscriber, or the
14 subscriber's representative or provider, receipt of the
15 appeal.
16 (d) A formal appeal under this subsection must be
17 concluded as soon as possible. If the appeal is from a
18 determination regarding urgent or emergency care, the appeal
19 must be resolved within 72 hours after the filing of the
20 formal appeal. In the case of all other appeals, the appeal
21 must be resolved within 5 business days after the filing of
22 the formal appeal.
23 (e) The health maintenance organization may extend the
24 review for up to an additional 20 days if it demonstrates
25 reasonable cause for the delay which is beyond its control and
26 if the health maintenance organization provides a written
27 progress report and explanation for the delay to the Agency
28 for Health Care Administration. The health maintenance
29 organization must notify the subscriber, and when applicable
30 the subscriber's representative or provider, of the delay
31 prior to the end of the time limitation in paragraph (d).
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1 (f) If a formal appeal under this subsection is
2 denied, the health maintenance organization must notify the
3 subscriber, and where applicable the subscriber's avocate or
4 provider, of the denial. The notice must be in writing, set
5 forth the basis for the denial, and include notice of the
6 subscriber's right to proceed to an independent external
7 appeal under subsection (4). The notice must include specific
8 instruction on how and where the subscriber may file for an
9 external appeal of the denial.
10 (4) EXTERNAL APPEAL PROCESS.--
11 (a) If a subscriber, or a subscriber's representative
12 or provider acting on behalf of a subscriber and with the
13 subscriber's consent, is dissatisfied with the results of a
14 formal internal appeal under subsection (3), the subscriber,
15 or the subscriber's representative or provider, may pursue an
16 appeal to the Agency for Health Care Administration for
17 referral to an independent utilization review organization.
18 (b) To initiate an external appeal, the subscriber, or
19 the subscriber's representative or provider, must file a
20 written request with the Agency for Health Care
21 Administration. The appeal must be filed within 30 business
22 days after receipt of the written decision of the formal
23 internal appeal under subsection (3). The agency may extend
24 for an additional 30 days the time for filing the appeal upon
25 a showing of good cause. A delay under this paragraph does not
26 affect a subscriber's right to proceed under any other
27 applicable state or federal law.
28 (c) Within 5 days after receiving a request for an
29 external appeal, the Agency for Health Care Administration
30 shall determine whether the procedural requirements described
31 in this section have been satisfied. If those requirements
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1 have been satisfied, the agency shall assign the appeal to an
2 independent utilization review organization for review.
3 (d) The independent utilization review organization
4 shall assign the case for a full review within 5 days after
5 receiving an appeal under paragraph (c) and shall determine
6 whether, as a result of the health maintenance organization's
7 determination, the subscriber was deprived of any of the
8 rights described in paragraph (1)(a). The independent
9 utilization review organization shall consider all pertinent
10 medical records; reports submitted by the consulting physician
11 and other documents submitted by the parties; any applicable
12 and generally accepted practice guidelines developed by the
13 Federal Government, national or professional medical
14 societies, boards, or associations; and any applicable
15 clinical protocols or practice guidelines developed by the
16 health maintenance organization. The independent utilization
17 review organization shall refer all cases for review to a
18 consultant physician or other health care professional in the
19 same speciality or area of practice who manages the type of
20 treatment that is the subject of the appeal. All final
21 recommendations of the independent utilization review
22 organization are subject to approval by the medical director
23 of the independent utilization review organization or by an
24 alternate physician if the medical director has a conflict of
25 interest.
26 (e) The independent utilization review organization
27 shall issue its recommended decision to the Agency for Health
28 Care Administration and provide copies to the subscriber, the
29 subscriber's representative or provider if applicable, and the
30 health maintenance organization. The decision must be issued
31 as soon as possible in accordance with the medical exigencies
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1 of the case which, except as provided in this paragraph, may
2 not exceed 30 business days after receipt of all documentation
3 necessary to complete the review. However, the independent
4 utilization review organization may extend its review for a
5 reasonable period due to circumstances beyond the control of
6 all parties to the action, and must advise the subscriber, the
7 subscriber's representative or provider if applicable, the
8 health maintenance organization, and the Agency for Health
9 Care Administration in a formal statement explaining the
10 delay. If any party fails to provide documentation sought by
11 the independent utilization review organization which is
12 within that party's control, the party waives its position
13 with respect to the review.
14 (f) If the independent utilization review organization
15 determines that the subscriber was deprived of medically
16 necessary covered services, the independent utilization review
17 organization shall, in its recommended decision, advise all
18 parties of the appropriate covered health care services the
19 subscriber is entitled to receive. In all cases, the
20 independent utilization review organization shall advise all
21 parties of the basis of its recommended decision.
22 (g) Any party may appeal the recommended decision to
23 the Agency for Health Care Administration, with a copy of the
24 appeal to all other parties, within 20 days after the date the
25 decision is issued. If a decision is appealed, any other party
26 may file with the Agency for Health Care Administration its
27 position on the issues raised in the appeal, with copies to
28 all other parties, within 20 days after receipt of the initial
29 appeal.
30 (h) The Agency for Health Care Administration shall
31 issue its decision within 30 days after completion of the
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1 record in the case. The decision must include an explanation
2 of the basis supporting the decision. The final decision of
3 the Agency for Health Care Administration is binding on the
4 health maintenance organization.
5 (i) The Agency for Health Care Administration shall
6 issue a report 30 days after the end of each calendar quarter
7 which summarizes all appeals and final decisions. The report
8 must maintain the confidentiality of patient information and
9 shall be provided to the Governor, the Insurance Commissioner,
10 and the appropriate substantive committees of the Senate and
11 the House of Representatives. The quarterly reports shall be
12 available to the public.
13 (5) INDEPENDENT UTILIZATION-REVIEW ORGANIZATIONS.--
14 (a) The Agency for Health Care Administration shall
15 enter into contracts with as many independent
16 utilization-review organizations throughout the state as the
17 agency considers necessary to conduct external appeals under
18 this section. Each independent utilization-review organization
19 must be independent of any insurance carrier, and a physician
20 may not be assigned to hear any appeal that would constitute a
21 conflict of interest. As part of its contract, each
22 independent utilization-review organization shall submit to
23 the Agency for Health Care Administration a list of the
24 organization's physician reviewers and the health maintenance
25 organizations, health insurers, health providers, and other
26 health care providers with whom the organization has a
27 contractual or other business arrangement. Each organization
28 shall update the list of its business relationships as
29 changes, additions, or deletions occur.
30 (b) Upon any request for an external appeal, the
31 Agency for Health Care Administration shall assign the appeal
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1 to an approved independent utilization-review organization on
2 a random basis. The agency may deny an assignment if, in its
3 determination, the assignment would result in a conflict of
4 interest or would otherwise create the appearance of
5 impropriety.
6 (c) The Agency for Health Care Administration shall
7 adopt rules to administer this section.
8 Section 2. Right of subscribers to maintain an action
9 against a health maintenance organization.--
10 (1) DEFINITIONS.--As used in this section, the term:
11 (a) "Appropriate and medically necessary" means the
12 standard for health care services as determined by physicians
13 and health care providers in accordance with the prevailing
14 practices and standards of the medical profession and
15 community.
16 (b) "Health care treatment decision" means a
17 determination made when medical services are actually provided
18 by the health care plan and a decision that affects the
19 quality of the diagnosis, care, or treatment provided to the
20 plans subscribers.
21 (c) "Ordinary care" means, in the case of a health
22 maintenance organization, that degree of care that a health
23 maintenance organization of ordinary prudence would use under
24 the same or similar circumstances. In the case of a person who
25 is an employee, agent, or representative of a health
26 maintenance organization, the term "ordinary care" means that
27 degree of care that a person of ordinary prudence in the same
28 profession, specialty, or area of practice would use in the
29 same or similar circumstances.
30 (2) APPLICATION.--
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1 (a) A health maintenance organization has the duty to
2 exercise ordinary care when making health care treatment
3 decisions and is liable for damages for harm to a subscriber
4 which is proximately caused by its failure to exercise such
5 ordinary care.
6 (b) A health maintenance organization is also liable
7 for damages for harm to a subscriber which are proximately
8 caused by the health care treatment decisions made by its
9 employees, agents, or representatives who act on behalf of the
10 health maintenance organization and over whom it has the right
11 to exercise influence or control and whose actions or failure
12 to act constitute the failure to exercise ordinary care.
13 (c) It is a defense to any action asserted against a
14 health maintenance organization that:
15 1. Neither the health maintenance organization or any
16 employee, agent, or representative for whose conduct such
17 health maintenance organization is liable under paragraph (b)
18 controlled, influenced, or participated in the health care
19 treatment decision; and
20 2. The health maintenance organization did not deny or
21 delay payment for any treatment prescribed or recommended by a
22 health care provider to the subscriber.
23 (d) The standards in paragraphs (a) and (b) do not
24 create an obligation on the part of the health maintenance
25 organization to provide treatment to a subscriber which is not
26 covered by the health care plan.
27 (e) This section does not create any liability on the
28 part of an employer, an employer group-purchasing
29 organization, or a pharmacy licensed by the Board of Pharmacy
30 which purchases coverage or assumes risk on behalf of its
31 employees.
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1 (f) A health maintenance organization may not remove a
2 physician or health care provider from its plan or refuse to
3 renew the physician or health care provider with its plan for
4 advocating on behalf of a subscriber for appropriate and
5 medically necessary health care for the subscriber.
6 (g) A health maintenance organization may not enter
7 into a contract with a physician, hospital, or other health
8 care provider or pharmaceutical company which includes an
9 indemnification or hold-harmless clause for the acts or
10 conduct of the health maintenance organization. Any such
11 indemnification or hold-harmless clause in an existing
12 contract is void.
13 (h) Any law of this state prohibiting a health
14 maintenance organization from practicing medicine or being
15 licensed to practice medicine may not be asserted as a defense
16 by a health maintenance organization in an action brought
17 against it pursuant to this section or any other law.
18 (i) In an action against a health maintenance
19 organization, a finding that a physician or other health care
20 provider is an employee, agent, or representative of such
21 health maintenance organization may not be based solely on
22 proof that such person's name appears in a listing of approved
23 physicians or health care providers made available to
24 subscribers under a health care plan.
25 (j) This section does not apply to workers'
26 compensation insurance coverage.
27 (3) LIMITATIONS ON ACTIONS.--
28 (a) A person may not maintain an action under this
29 section against a health maintenance organization that is
30 required to comply with the appeal process provided under
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1 section 1 of this act unless the subscriber or the
2 subscriber's representative:
3 1. Has exhausted the appeals and review applicable
4 under the appeal process; or
5 2. Before instituting the action:
6 a. Gives written notice of the claim as provided by
7 paragraph (b); and
8 b. Agrees to submit the claim to a review by an
9 independent review organization as required by paragraph (c).
10 (b) Notice of intent to maintain an action must be
11 delivered or mailed to the health maintenance organization
12 against whom the action is made not later than the 30th day
13 before the date the claim is filed.
14 (c) The subscriber, or the subscriber's
15 representative, must submit the claim to a review by an
16 independent review organization if the health maintenance
17 organization against whom the claim is made requests the
18 review not later than the 14th day after the date notice under
19 paragraph (b) is received by the health maintenance
20 organization. If the health maintenance organization does not
21 request the review within the period specified by this
22 paragraph, the subscriber, or the subscriber's representative,
23 is not required to submit the claim to independent review
24 before maintaining the action.
25 (d) Subject to paragraph (e), if the subscriber has
26 not complied with paragraph (a), an action under this section
27 may not be dismissed by the court, but the court may, in its
28 discretion, order the parties to submit to an independent
29 review or mediation or other nonbinding alternative dispute
30 resolution and may abate the action for a period not to exceed
31 30 days for such purposes. Such orders of the court are the
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1 sole remedies available to a party complaining of a
2 subscriber's failure to comply with paragraph (a).
3 (e) The subscriber is not required to comply with
4 paragraph (c) and an order of abatement or other order
5 pursuant to paragraph (d) for failure to comply may not be
6 imposed if the subscriber has filed a pleading alleging in
7 substance that:
8 1. Harm to the subscriber has already occurred because
9 of the conduct of the health maintenance organization or
10 because of an act or omission of an employee, agent, or
11 representative of such organization for whose conduct it is
12 liable; and
13 2. The review would not be beneficial to the
14 subscriber.
15 (f) If the court, upon motion by the defendant health
16 maintenance organization, finds after hearing that such
17 pleading was not made in good faith, the court may enter an
18 order pursuant to paragraph (d).
19 (g) If the subscriber, or the subscriber's
20 representative, seeks to exhaust the appeals and review or
21 provides notice, as required by paragraph (a), before the
22 statute of limitations applicable to a claim against a health
23 maintenance organization has expired, the limitations period
24 is tolled until the later of:
25 1. The 30th day after the date the subscriber, or the
26 subscriber's representative, has exhausted the process for
27 appeals and review applicable under the appeals process; or
28 2. The 40th day after the date the subscriber, or the
29 subscriber's representative, gives notice under paragraph (b).
30 (h) This section does not prohibit a subscriber from
31 pursuing other appropriate remedies, including injunctive
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1 relief, a declaratory judgment, or other relief available
2 under law, if the requirement of exhausting the process for
3 appeal and review places the subscriber's health in serious
4 jeopardy.
5 Section 3. Disclosure of information.--This section
6 applies to all health maintenance contracts entered into by a
7 health maintenance organization with a subscriber or group of
8 subscribers.
9 (1) Each health maintenance organization shall supply
10 written disclosure information to each subscriber, and upon
11 request to each prospective subscriber prior to enrollment,
12 which may be incorporated into the health maintenance
13 contract. If any inconsistency exists between a separate
14 written disclosure statement and the health maintenance
15 contract, the terms of the health maintenance contract shall
16 control. The information to be disclosed must include at least
17 the following:
18 (a) A description of coverage provisions; health care
19 benefits; benefit maximums, including benefit limitations; and
20 exclusions of coverage, including the definition of medical
21 necessity used in determining whether benefits will be
22 covered.
23 (b) A description of requirements for prior
24 authorization or other requirements for treatments and
25 services.
26 (c) A description of the utilization review policies
27 and procedures used by the health maintenance organization,
28 including:
29 1. The circumstances under which utilization review
30 will be undertaken;
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1 2. The toll-free telephone number of the utilization
2 review agent;
3 3. The timeframes under which utilization review
4 decisions must be made for prospective, retrospective, and
5 concurrent decisions;
6 4. The right to reconsideration;
7 5. The right to an appeal, including the expedited and
8 standard appeals processes and the timeframes for such
9 appeals;
10 6. The right to designate a representative;
11 7. A notice that all denials of claims will be made by
12 qualified health care providers and that all notices of
13 denials will include information about the basis of the
14 decision;
15 8. A notice of the right to an appeal, together with a
16 description of the appeal process established under section 1
17 of this act; and
18 9. Any further appeal rights, if any.
19 (d) A description prepared annually of the types of
20 methodologies the health maintenance organization uses to
21 reimburse health care providers, specifying the type of
22 methodology that is used to reimburse particular types of
23 providers or reimburse for the provision of particular types
24 of services. However, this paragraph does not require
25 disclosure of individual contracts or the specific details of
26 any financial arrangement between a health maintenance
27 organization and a health care provider.
28 (e) An explanation of a subscriber's financial
29 responsibility for payment of premiums, coinsurance,
30 copayments, deductibles, and any other charges; annual limits
31 on a subscriber's financial responsibility; caps on payments
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1 for covered services; and financial responsibility for
2 noncovered health care procedures, treatments, or services.
3 (f) An explanation, where applicable, of a
4 subscriber's financial responsibility for payment when
5 services are provided by a health care provider who is not
6 part of the health maintenance organization's network of
7 providers or by any provider without required authorization.
8 (g) A description of the grievance procedures to be
9 used to resolve disputes between the health maintenance
10 organization and a subscriber, including:
11 1. The right to file a grievance regarding any dispute
12 between the health maintenance organization and a subscriber;
13 2. The right to file a grievance orally when the
14 dispute is about referrals or covered benefits;
15 3. The toll-free telephone number that subscribers may
16 use to file an oral grievance;
17 4. The timeframes and circumstances for expedited and
18 standard grievances;
19 5. The right to appeal a grievance determination and
20 the procedures for filing such an appeal;
21 6. The timeframes and circumstances for expedited and
22 standard appeals;
23 7. The right to designate a representative; and
24 8. A notice that all disputes involving clinical
25 decisions will be made by qualified health care providers and
26 that all notices of determination will include information
27 about the basis of the decision and further appeal rights, if
28 any.
29 (h) A description of the procedure for obtaining
30 emergency services. Such description must include a definition
31 of emergency services, a notice that emergency services are
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1 not subject to prior approval, and a description of the
2 subscriber's financial and other responsibilities regarding
3 obtaining such services, including the subscriber's financial
4 responsibilities, if any, when such services are received
5 outside the service area of the health maintenance
6 organization.
7 (i) Where applicable, a description of procedures for
8 subscribers to select and access the health maintenance
9 organization's primary and specialty care providers, including
10 notice of how to determine whether a participating provider is
11 accepting new patients.
12 (j) Where applicable, a description of the procedures
13 for changing primary and specialty care providers within the
14 health maintenance organization's network of providers.
15 (k) Where applicable, notice that a subscriber may
16 obtain a referral to a health care provider outside of the
17 organization's network when the health maintenance
18 organization does not have a health care provider in the
19 network with appropriate training and experience to meet the
20 particular health care needs of the subscriber, and the
21 procedure by which the subscriber may obtain such referral.
22 (l) Where applicable, notice that a subscriber with a
23 condition that requires ongoing care from a specialist may
24 request a standing referral to such a specialist and the
25 procedure for requesting and obtaining such a standing
26 referral.
27 (m) Where applicable, notice that a subscriber with a
28 life-threatening condition or disease, or a degenerative and
29 disabling condition or disease, either of which requires
30 specialized medical care over a prolonged period, may request
31 a specialist responsible for providing or coordinating the
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1 subscriber's medical care, and the procedure for requesting
2 and obtaining such a specialist.
3 (n) Where applicable, notice that a subscriber with a
4 life-threatening condition or disease, or a degenerative and
5 disabling condition or disease, either of which requires
6 specialized medical care over a prolonged period, may request
7 access to a specialty care center, and the procedure by which
8 such access may be obtained.
9 (o) A description of how the health maintenance
10 organization addresses the needs of non-English-speaking
11 subscribers.
12 (p) Notice of all appropriate mailing addresses and
13 telephone numbers to be used by subscribers seeking
14 information or authorization.
15 (q) Where applicable, a listing by specialty, which
16 may be in a separate document that is updated annually, of the
17 name, address, and telephone number of all participating
18 health care providers, including facilities, and the board
19 certification number of physicians.
20 (r) A description of the mechanisms by which
21 subscribers may participate in developing policies of the
22 health maintenance organization.
23 (2) Each health maintenance organization, upon the
24 request of a subscriber or prospective subscriber shall:
25 (a) Provide a list of the names, business addresses,
26 and official positions of the board of directors, officers,
27 and members of the health maintenance organization.
28 (b) Provide a copy of the most recent annual certified
29 financial statement of the health maintenance organization,
30 including its balance sheet and summary of receipts and
31 disbursements prepared by a certified public accountant.
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1 (c) Provide a copy of the most recent health
2 maintenance contracts.
3 (d) Provide information relating to consumer
4 complaints compiled under section 408.10, Florida Statutes.
5 (e) Provide the procedures for protecting the
6 confidentiality of medical records and other subscriber
7 information.
8 (f) Where applicable, allow subscribers and
9 prospective subscribers to inspect drug formularies used by
10 the health maintenance organization and disclose whether
11 individual drugs are included or excluded from coverage.
12 (g) Provide a written description of the
13 organizational arrangements and ongoing procedures of the
14 health maintenance organization's quality assurance program,
15 if any.
16 (h) Provide a description of the procedures followed
17 by the health maintenance organization in making decisions
18 about the experimental or investigational nature of individual
19 drugs, medical devices, or treatments in clinical trials.
20 (i) Provide individual health care provider's
21 affiliations with participating hospitals, if any.
22 (j) Upon written request, provide specific written
23 clinical review criteria relating to a particular condition or
24 disease and, where appropriate, other clinical information
25 that the health maintenance organization considers in its
26 utilization review and a description of how it is used in the
27 utilization-review process. However, to the extent such
28 information is proprietary to the health maintenance
29 organization, the information may only be used for the
30 purposes of assisting the subscriber or prospective subscriber
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1 in evaluating the covered services provided by the
2 organization.
3 (k) Where applicable, provide the written application
4 procedures and minimum qualification requirements for a health
5 care provider to be considered by the health maintenance
6 organization for participation in the organization's network
7 of providers.
8 (l) Disclose any other information required by rule of
9 the Department of Insurance or the Agency for Health Care
10 Administration.
11 (3) This section does not prevent a health maintenance
12 organization from changing or updating the materials that are
13 made available to subscribers.
14 (4) As to any program where the subscriber must select
15 a primary care provider, if a participating primary care
16 provider becomes unavailable to provide services to a
17 subscriber, the health maintenance organization shall provide
18 written notice within 15 days after the date the organization
19 becomes aware of such unavailability to each subscriber who
20 has chosen the provider as his or her primary care provider.
21 If a subscriber is enrolled in a managed care plan and is
22 undergoing an ongoing course of treatment with any other
23 participating provider who becomes unavailable to continue to
24 provide services to such subscriber, and the health
25 maintenance organization is aware of such ongoing course of
26 treatment, the organization shall provide written notice
27 within 15 days after the date the organization becomes aware
28 of such unavailability to such subscriber. Each notice must
29 also describe the procedures for continuing care and for
30 choosing an alternative provider.
31
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1 Section 4. Provider profiles.--Each health maintenance
2 organization, in developing provider profiles or otherwise
3 measuring the performance of health care providers, shall:
4 (1) Make allowances for the severity of illness or
5 condition of the patient mix;
6 (2) Make allowances for patients with multiple
7 illnesses or conditions;
8 (3) Make available to the Department of Insurance and
9 the Agency for Health Care Administration documentation of how
10 the health maintenance organization makes such allowances; and
11 (4) Inform subscribers and participating providers,
12 upon request, how the health maintenance organization
13 considers patient mix when profiling or evaluating providers.
14 Section 5. Retaliatory action prohibited.--A health
15 maintenance organization may not take any retaliatory action
16 against an employee because the employee does any of the
17 following:
18 (1) Discloses, or threatens to disclose, to a
19 supervisor or any agency an activity, policy, or practice of
20 the health maintenance organization or another employer with
21 whom there is a business relationship which the employee
22 reasonably believes violates a law or rule, or, in the case of
23 an employee who is a licensed or certified health care
24 provider, reasonably believes constitutes improper quality of
25 patient care.
26 (2) Provides information to, or testifies before, any
27 agency conducting an investigation, hearing, or inquiry into
28 any violation of law or rule by a health maintenance
29 organization or another employer with whom there is a business
30 relationship, or, in the case of an employee who is a licensed
31 or certified health care provider, provides information to, or
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1 testifies before, any agency conducting an investigation,
2 hearing, or inquiry into the quality of patient care.
3 (3) Objects to, or refuses to participate in any
4 activity, policy, or practice that the employee reasonably
5 believes:
6 (a) Violates a law or rule, or, if the employee is a
7 licensed or certified health care provider, constitutes
8 improper quality of patient care;
9 (b) Is fraudulent or criminal; or
10 (c) Is incompatible with a clear mandate of public
11 policy concerning the public health, safety, or welfare or
12 protection of the environment.
13 Section 6. Referrals to another provider.--In any case
14 in which there is not a health care provider within the health
15 maintenance organization's provider network to provide a
16 covered benefit, the health maintenance organization shall
17 arrange for a referral to a provider with the necessary
18 expertise and ensure that the subscriber obtains the covered
19 benefit at a cost that does not exceed the subscriber's cost
20 if the benefit were obtained from a participating provider.
21 Section 7. Prescription drug formulary.--If a health
22 maintenance organization uses a formulary for prescription
23 drugs, the health maintenance organization must include a
24 written procedure whereby a subscriber may obtain, without
25 penalty and in a timely fashion, specific drugs and
26 medications that are not included in the formulary when:
27 (1) The formulary's equivalent has been ineffective in
28 the treatment of the subscriber's disease or condition; or
29 (2) The formulary's drug causes, or is reasonably
30 expected to cause, adverse or harmful reactions in the
31 subscriber.
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1 Section 8. Arbitrary limitations or conditions for the
2 provision of services prohibited.--
3 (1) A health maintenance organization may not
4 arbitrarily interfere with or alter the decision of the health
5 care provider regarding the manner or setting in which
6 particular services are delivered if the services are
7 medically necessary or appropriate for treatment or diagnosis
8 to the extent that such treatment or diagnosis is otherwise a
9 covered benefit.
10 (2) Subsection (1) does not prohibit a health
11 maintenance organization from limiting the delivery of
12 services to one or more health care providers within a network
13 of such providers.
14 (3) As used in subsection (1), the term "medically
15 necessary or appropriate" means a service or benefit that is
16 consistent with generally accepted principles of professional
17 medical practice.
18 Section 9. Discrimination prohibited.--
19 (1) Subject to subsection (2), a health maintenance
20 organization, with respect to health insurance coverage, may
21 not discriminate against a subscriber in the delivery of
22 health care services consistent with the benefits covered
23 under the health maintenance contract, or coverage required by
24 law, based on race, color, ethnicity, national origin,
25 religion, sex, age, mental or physical disability, sexual
26 orientation, genetic information, or source of payment.
27 (2) Subsection (1) does not apply to eligibility for
28 coverage; the offering or guaranteeing of an offer of
29 coverage; the application of an exclusion for a preexisting
30 condition, consistent with applicable law; or premiums charged
31 for coverage under the health maintenance contract.
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1 Section 10. Termination of a provider.--Each health
2 maintenance organization shall establish a policy governing
3 the termination of providers. The policy must assure the
4 continued coverage of services at the contract price by a
5 terminated provider for up to 120 calendar days in cases where
6 it is medically necessary for the subscriber to continue
7 treatment with the terminated provider. The case of the
8 pregnancy of a subscriber constitutes medical necessity and
9 coverage of services by the terminated provider shall continue
10 to the postpartum evaluation of the subscriber, up to 6 weeks
11 after delivery. The policy must clearly state that the
12 determination as to the medical necessity of a subscriber's
13 continued treatment with a terminated provider is subject to
14 the appeal procedures set forth in section 1 of this act.
15 Section 11. (1) The Insurance Commissioner may
16 suspend or revoke a certificate of authority issued under part
17 I of chapter 641, Florida Statutes, or deny an application for
18 a certificate of authority, if the commissioner finds that:
19 (a) The health maintenance organization is operating
20 significantly in contravention of its basic organizational
21 document, unless amendments to the basic organizational
22 document or other submissions that are consistent with the
23 operations of the organization have been filed with and
24 approved by the commissioner.
25 (b) The health maintenance organization does not
26 provide or arrange for basic health care services.
27 (c) The health maintenance organization is unable to
28 fulfill its obligations to furnish health care coverage.
29 (d) The health maintenance organization is no longer
30 financially responsible and may reasonably be expected to be
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1 unable to meet its obligations to subscribers or prospective
2 subscribers.
3 (e) The health maintenance organization has failed to
4 correct, within the time prescribed, any deficiency occurring
5 due to the impairment of the prescribed minimum net worth of
6 the health maintenance organization.
7 (f) The health maintenance organization has failed to
8 implement the grievance procedures and appeal process required
9 by section 1 of this act in a reasonable manner to resolve
10 valid complaints.
11 (g) The health maintenance organization, or a person
12 acting on behalf of the organization, has intentionally
13 advertised or merchandised the services of the organization in
14 an untrue, a misrepresentative, a misleading, a deceptive, or
15 an unfair manner.
16 (h) The continued operation of the health maintenance
17 organization would be hazardous to the subscribers of the
18 organization.
19 (i) The health maintenance organization has otherwise
20 failed to substantially comply with part I of chapter 641,
21 Florida Statutes.
22 (2) The Insurance Commissioner may impose a civil
23 penalty of not more than $25,000 against a health maintenance
24 organization for each cause listed in subsection (1). The
25 civil penalties may not exceed $100,000 against any one health
26 maintenance organization in 1 calendar year. The penalty may
27 be imposed in addition to or instead of a suspension or
28 revocation of the organization's certificate of authority.
29 Section 12. Section 641.513, Florida Statutes, is
30 repealed.
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1 Section 13. Prohibition against requiring or coercing
2 a subscriber to use a provider other than the provider
3 selected by the subscriber; penalties.--
4 (1) Notwithstanding any other provision of law to the
5 contrary, any subscriber to a health plan offered by or
6 through a health maintenance organization, managed care
7 organization, or prepaid health plan is entitled at all times
8 to free, full, and absolute choice in the selection of a
9 provider or facility licensed or permitted under chapter 458,
10 chapter 459, chapter 460, chapter 461, chapter 463, chapter
11 465, or chapter 466, Florida Statutes. It is expressly
12 forbidden for any health plan to contain any provision that
13 would require or coerce a subscriber to the plan to use any
14 provider other than the provider selected by the subscriber.
15 Health maintenance organizations, managed care provider
16 organizations, and prepaid health plans must allow any health
17 care provider to participate as a service provider under a
18 health plan offered by the health maintenance organization,
19 managed care organization, or prepaid health plan, if the
20 health care provider agrees to:
21 (a) Accept the reimbursement rates negotiated by the
22 health maintenance organization, managed care provider
23 organization, or prepaid health plan with other health care
24 providers that provide the same service under the health plan;
25 and
26 (b) Comply with all guidelines relating to quality of
27 care and utilization criteria which must be met by other
28 employee or nonemployee providers.
29 (2) A health maintenance organization, managed care
30 provider organization, or prepaid health plan that violates
31 subsection (1) is subject to a civil fine in the amount of:
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1 (a) Up to $25,000 for each violation; or
2 (b) If the Director of Health Care Administration
3 determines that the entity has engaged in a pattern of
4 violations of subsection (1), up to $100,000 for each
5 violation.
6 Section 14. Subsection (10) is added to section
7 627.419, Florida Statutes, to read:
8 627.419 Construction of policies.--
9 (10)(a) Notwithstanding any other provision of law to
10 the contrary, any person covered under any health insurance
11 policy, health care services plan, or other contract that
12 provides for payment for medical expense benefits or
13 procedures is entitled at all times to free, full, and
14 absolute choice in the selection of a provider or facility
15 licensed or permitted under chapter 458, chapter 459, chapter
16 460, chapter 461, chapter 463, chapter 465, or chapter 466.
17 It is expressly forbidden for any health plan to contain any
18 provision that would require or coerce a person covered by the
19 plan to use any provider other than the provider selected by
20 the subscriber. Any health insurance policy, health care
21 services plan, or other contract that provides for payment for
22 medical expense benefits or procedures must allow any health
23 care provider to participate as a service provider under a
24 health plan offered by the health insurance policy, health
25 care services plan, or other contract that provides for
26 payment for medical expense benefits or procedures, if the
27 health care provider agrees to:
28 1. Accept the reimbursement rates negotiated by the
29 health insurance policy, health care services plan, or other
30 contract that provides for payment for medical expense
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1 benefits or procedures with other health care providers that
2 provide the same service under the health plan; and
3 2. Comply with all guidelines relating to quality of
4 care and utilization criteria which must be met by other
5 providers with whom the health insurance policy, health care
6 services plan, or other contract that provides for payment for
7 medical expense benefits or procedures has contractual
8 arrangements for those services.
9 (b) The provider of any health insurance policy,
10 health care services plan, or other contract that violates
11 paragraph (a) is subject to a civil fine in the amount of:
12 1. Up to $25,000 for each violation; or
13 2. If the Insurance Commissioner determines that the
14 provider has engaged in a pattern of violations of paragraph
15 (a), up to $100,000 for each violation.
16 Section 15. The provisions of sections 13 and 14 of
17 this act do not apply to any health insurance policy that is
18 in force before the effective date of this act but do apply to
19 such policies at the next renewal period immediately following
20 October 1, 2002.
21 Section 16. Section 641.28, Florida Statutes, is
22 amended to read:
23 641.28 Civil remedy.--In any civil action brought to
24 enforce the terms and conditions of a health maintenance
25 organization contract, only the prevailing subscriber, or a
26 representative or provider acting on behalf of a subscriber,
27 party is entitled to recover reasonable attorney's fees and
28 court costs. This section shall not be construed to authorize
29 a civil action against the department, its employees, or the
30 Insurance Commissioner or against the Agency for Health Care
31 Administration, its employees, or the director of the agency.
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1 Section 17. This act shall take effect October 1,
2 2002.
3
4 *****************************************
5 SENATE SUMMARY
6 Requires health maintenance organizations to provide an
appeal process to resolve grievances brought by
7 subscribers. Provides for an external appeal when a
subscriber is dissatisfied with the results of a formal
8 appeal. Provides for the Agency for Health Care
Administration to adopt rules governing the appeal
9 process. Provides that a subscriber may maintain an
action against a health maintenance organization that has
10 not exercised ordinary care in making treatment
decisions. Provides for a claim of liability to be
11 reviewed by an independent review organization. Provides
requirements for profiles of health care providers and
12 the measurement of the performance of health care
providers. Prohibits a health maintenance organization
13 from taking retaliatory action against an employee for
certain actions or disclosures concerning improper
14 patient care. Requires that a health maintenance
organization refer a subscriber to an outside provider in
15 cases in which there is not a provider within the
organization's network to provide a covered benefit.
16 Prohibits a health maintenance organization from
arbitrarily interfering with certain decisions of a
17 health care provider. Authorizes the Insurance
Commissioner to suspend or revoke a certificate of
18 authority upon finding certain violations by a health
maintenance organization. Provides that subscribers are
19 entitled to free, full, and absolute choice of providers
offering physician, chiropractic, podiatry, optometry,
20 pharmacy, or dental services, and prohibits coercion or
coercive requirements relating to subscriber selection.
21 Provides for civil fines for violations. (See bill for
details.)
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