Senate Bill sb0256

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    Florida Senate - 2002                                   SB 256

    By the Committee on Health, Aging and Long-Term Care





    317-320A-02

  1                      A bill to be entitled

  2         An act relating to the Subscriber Assistance

  3         Program; amending s. 408.7056, F.S.;

  4         redesignating the Statewide Provider and

  5         Subscriber Assistance Program as the Subscriber

  6         Assistance Program; requiring the Agency for

  7         Health Care Administration to adopt rules

  8         governing the hearing of grievances by the

  9         Subscriber Assistance Panel; specifying

10         circumstances under which the agency or the

11         Department of Insurance may decline to issue an

12         initial order or emergency order recommended by

13         the panel; authorizing the agency or department

14         to require that the panel reconsider a

15         recommendation; requiring that the Agency for

16         Health Care Administration develop a training

17         program for panel members; amending ss.

18         641.3154, 641.511, 641.58, F.S.; redesignating

19         the Statewide Provider and Subscriber

20         Assistance Panel as the Subscriber Assistance

21         Panel; requiring that a subscriber or the

22         provider acting on behalf of a subscriber be

23         notified of the right to submit a written

24         grievance if a case is unresolved; providing an

25         effective date.

26

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

28

29         Section 1.  Section 408.7056, Florida Statutes, is

30  amended to read:

31

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  1         408.7056  Statewide Provider and Subscriber Assistance

  2  Program.--

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

  4         (a)  "Agency" means the Agency for Health Care

  5  Administration.

  6         (b)  "Department" means the Department of Insurance.

  7         (c)  "Grievance procedure" means an established set of

  8  rules that specify a process for appeal of an organizational

  9  decision.

10         (d)  "Health care provider" or "provider" means a

11  state-licensed or state-authorized facility, a facility

12  principally supported by a local government or by funds from a

13  charitable organization that holds a current exemption from

14  federal income tax under s. 501(c)(3) of the Internal Revenue

15  Code, a licensed practitioner, a county health department

16  established under part I of chapter 154, a prescribed

17  pediatric extended care center defined in s. 400.902, a

18  federally supported primary care program such as a migrant

19  health center or a community health center authorized under s.

20  329 or s. 330 of the United States Public Health Services Act

21  that delivers health care services to individuals, or a

22  community facility that receives funds from the state under

23  the Community Alcohol, Drug Abuse, and Mental Health Services

24  Act and provides mental health services to individuals.

25         (e)  "Managed care entity" means a health maintenance

26  organization or a prepaid health clinic certified under

27  chapter 641, a prepaid health plan authorized under s.

28  409.912, or an exclusive provider organization certified under

29  s. 627.6472.

30         (f)  "Panel" means a statewide provider and subscriber

31  assistance panel selected as provided in subsection (11).

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  1         (2)  The agency shall adopt and implement a program to

  2  provide assistance to subscribers and providers, including

  3  those whose grievances are not resolved by the managed care

  4  entity to the satisfaction of the subscriber or provider. The

  5  program shall consist of one or more panels that meet as often

  6  as necessary to timely review, consider, and hear grievances

  7  and recommend to the agency or the department any actions that

  8  should be taken concerning individual cases heard by the

  9  panel. The panel shall hear every grievance filed by

10  subscribers and providers on behalf of subscribers, unless the

11  grievance:

12         (a)  Relates to a managed care entity's refusal to

13  accept a provider into its network of providers;

14         (b)  Is part of an internal grievance in a Medicare

15  managed care entity or a reconsideration appeal through the

16  Medicare appeals process which does not involve a quality of

17  care issue;

18         (c)  Is related to a health plan not regulated by the

19  state such as an administrative services organization,

20  third-party administrator, or federal employee health benefit

21  program;

22         (d)  Is related to appeals by in-plan suppliers and

23  providers, unless related to quality of care provided by the

24  plan;

25         (e)  Is part of a Medicaid fair hearing pursued under

26  42 C.F.R. ss. 431.220 et seq.;

27         (f)  Is the basis for an action pending in state or

28  federal court;

29         (g)  Is related to an appeal by nonparticipating

30  providers, unless related to the quality of care provided to a

31

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  1  subscriber by the managed care entity and the provider is

  2  involved in the care provided to the subscriber;

  3         (h)  Was filed before the subscriber or provider

  4  completed the entire internal grievance procedure of the

  5  managed care entity, the managed care entity has complied with

  6  its timeframes for completing the internal grievance

  7  procedure, and the circumstances described in subsection (6)

  8  do not apply;

  9         (i)  Has been resolved to the satisfaction of the

10  subscriber or provider who filed the grievance, unless the

11  managed care entity's initial action is egregious or may be

12  indicative of a pattern of inappropriate behavior;

13         (j)  Is limited to seeking damages for pain and

14  suffering, lost wages, or other incidental expenses, including

15  accrued interest on unpaid balances, court costs, and

16  transportation costs associated with a grievance procedure;

17         (k)  Is limited to issues involving conduct of a health

18  care provider or facility, staff member, or employee of a

19  managed care entity which constitute grounds for disciplinary

20  action by the appropriate professional licensing board and is

21  not indicative of a pattern of inappropriate behavior, and the

22  agency or department has reported these grievances to the

23  appropriate professional licensing board or to the health

24  facility regulation section of the agency for possible

25  investigation; or

26         (l)  Is withdrawn by the subscriber or provider.

27  Failure of the subscriber or the provider to attend the

28  hearing shall be considered a withdrawal of the grievance.

29         (3)  The agency shall review all grievances within 60

30  days after receipt and make a determination whether the

31  grievance shall be heard.  Once the agency notifies the panel,

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  1  the subscriber or provider, and the managed care entity that a

  2  grievance will be heard by the panel, the panel shall hear the

  3  grievance either in the network area or by teleconference no

  4  later than 120 days after the date the grievance was filed.

  5  The agency shall notify the parties, in writing, by facsimile

  6  transmission, or by phone, of the time and place of the

  7  hearing. The panel may take testimony under oath, request

  8  certified copies of documents, and take similar actions to

  9  collect information and documentation that will assist the

10  panel in making findings of fact and a recommendation. The

11  panel shall issue a written recommendation, supported by

12  findings of fact, to the provider or subscriber, to the

13  managed care entity, and to the agency or the department no

14  later than 15 working days after hearing the grievance. The

15  agency must establish, by rule, procedures for the panel's

16  deliberations, including requirements for a quorum, procedures

17  for resolving a tie in a vote cast by the panel, the election

18  of a chairperson who shall preside and conduct each meeting of

19  the panel, requirements for each party to take an oath before

20  presenting his or her case to the panel, and requirements for

21  the time allotted for each party making a presentation and

22  rebuttal to the panel. If at the hearing the panel requests

23  additional documentation or additional records, the time for

24  issuing a recommendation is tolled until the information or

25  documentation requested has been provided to the panel.

26  Except as provided in this section, the proceedings of the

27  panel are not subject to chapter 120.

28         (4)  If, upon receiving a proper patient authorization

29  along with a properly filed grievance, the agency requests

30  medical records from a health care provider or managed care

31  entity, the health care provider or managed care entity that

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  1  has custody of the records has 10 days to provide the records

  2  to the agency.  Failure to provide requested medical records

  3  may result in the imposition of a fine of up to $500.  Each

  4  day that records are not produced is considered a separate

  5  violation.

  6         (5)  Grievances that the agency determines pose an

  7  immediate and serious threat to a subscriber's health must be

  8  given priority over other grievances. The panel may meet at

  9  the call of the chair to hear the grievances as quickly as

10  possible but no later than 45 days after the date the

11  grievance is filed, unless the panel receives a waiver of the

12  time requirement from the subscriber.  The panel shall issue a

13  written recommendation, supported by findings of fact, to the

14  department or the agency within 10 days after hearing the

15  expedited grievance.

16         (6)  When the agency determines that the life of a

17  subscriber is in imminent and emergent jeopardy, the chair of

18  the panel may convene an emergency hearing, within 24 hours

19  after notification to the managed care entity and to the

20  subscriber, to hear the grievance.  The grievance must be

21  heard notwithstanding that the subscriber has not completed

22  the internal grievance procedure of the managed care entity.

23  The panel shall, upon hearing the grievance, issue a written

24  emergency recommendation, supported by findings of fact, to

25  the managed care entity, to the subscriber, and to the agency

26  or the department for the purpose of deferring the imminent

27  and emergent jeopardy to the subscriber's life.  Within 24

28  hours after receipt of the panel's emergency recommendation,

29  the agency or department may issue an emergency order to the

30  managed care entity. An emergency order remains in force

31  until:

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  1         (a)  The grievance has been resolved by the managed

  2  care entity;

  3         (b)  Medical intervention is no longer necessary; or

  4         (c)  The panel has conducted a full hearing under

  5  subsection (3) and issued a recommendation to the agency or

  6  the department, and the agency or department has issued a

  7  final order.

  8         (7)  After hearing a grievance, the panel shall make a

  9  recommendation to the agency or the department which may

10  include specific actions the managed care entity must take to

11  comply with state laws or rules regulating managed care

12  entities.

13         (8)  A managed care entity, subscriber, or provider

14  that is affected by a panel recommendation may within 10 days

15  after receipt of the panel's recommendation, or 72 hours after

16  receipt of a recommendation in an expedited grievance, furnish

17  to the agency or department written evidence in opposition to

18  the recommendation or findings of fact of the panel.

19         (9)  No later than 30 days after the issuance of the

20  panel's recommendation and, for an expedited grievance, no

21  later than 10 days after the issuance of the panel's

22  recommendation, the agency or the department shall may adopt

23  the panel's recommendation or findings of fact in an initial a

24  proposed order or an emergency order, as provided in chapter

25  120, which it shall issue to the managed care entity. However,

26  the agency or department may decline to issue an initial order

27  or emergency order if the agency or department finds that

28  additional investigative information is needed to resolve the

29  subscriber's grievance or if the agency or department finds

30  that the panel's recommendation or findings of facts have been

31  improvidently issued by the panel. The agency or department

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  1  may issue an initial a proposed order or an emergency order,

  2  as provided in chapter 120, imposing fines or sanctions,

  3  including those contained in ss. 641.25 and 641.52.  The

  4  agency or the department may reject all or part of the panel's

  5  recommendation if the agency or department determines that the

  6  panel's recommendation was improvidently issued. Within 30

  7  days after the issuance of the panel's recommendation and, for

  8  an expedited grievance, within 10 days after the issuance of

  9  the panel's recommendation, if the agency or department finds

10  that the panel's recommendation was improvidently issued, the

11  agency or department may refer the matter back to the panel

12  for reconsideration of the case as it considers necessary for

13  further deliberation by the panel. All fines collected under

14  this subsection must be deposited into the Health Care Trust

15  Fund.

16         (10)  In determining any fine or sanction to be

17  imposed, the agency and the department may consider the

18  following factors:

19         (a)  The severity of the noncompliance, including the

20  probability that death or serious harm to the health or safety

21  of the subscriber will result or has resulted, the severity of

22  the actual or potential harm, and the extent to which

23  provisions of chapter 641 were violated.

24         (b)  Actions taken by the managed care entity to

25  resolve or remedy any quality-of-care grievance.

26         (c)  Any previous incidents of noncompliance by the

27  managed care entity.

28         (d)  Any other relevant factors the agency or

29  department considers appropriate in a particular grievance.

30         (11)  The panel shall consist of members employed by

31  the agency and members employed by the department, chosen by

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  1  their respective agencies; a consumer appointed by the

  2  Governor; a physician appointed by the Governor, as a standing

  3  member; and physicians who have expertise relevant to the case

  4  to be heard, on a rotating basis. The agency may contract with

  5  a medical director and a primary care physician who shall

  6  provide additional technical expertise to the panel.  The

  7  medical director shall be selected from a health maintenance

  8  organization with a current certificate of authority to

  9  operate in Florida. The agency shall develop a training

10  program for persons appointed to membership on the panel. The

11  program shall familiarize such persons with the substantive

12  and procedural laws and rules regarding their responsibilities

13  on the panel, including training with respect to the panel's

14  past recommendations and any subsequent agency action by the

15  agency or department in such cases.

16         (12)  Every managed care entity shall submit a

17  quarterly report to the agency and the department listing the

18  number and the nature of all subscribers' and providers'

19  grievances that which have not been resolved to the

20  satisfaction of the subscriber or provider after the

21  subscriber or provider follows the entire internal grievance

22  procedure of the managed care entity. The agency shall notify

23  all subscribers and providers included in the quarterly

24  reports of their right to file an unresolved grievance with

25  the panel.

26         (13)  Any information that which would identify a

27  subscriber or the spouse, relative, or guardian of a

28  subscriber and that which is contained in a report obtained by

29  the Department of Insurance pursuant to this section is

30  confidential and exempt from the provisions of s. 119.07(1)

31  and s. 24(a), Art. I of the State Constitution.

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  1         (14)  An initial A proposed order issued by the agency

  2  or department which only requires the managed care entity to

  3  take a specific action under subsection (7) is subject to a

  4  summary hearing in accordance with s. 120.574, unless all of

  5  the parties agree otherwise. If the managed care entity does

  6  not prevail at the hearing, the managed care entity must pay

  7  reasonable costs and attorney's fees of the agency or the

  8  department incurred in that proceeding.

  9         (15)(a)  Any information that which would identify a

10  subscriber or the spouse, relative, or guardian of a

11  subscriber and that which is contained in a document, report,

12  or record prepared or reviewed by the panel or obtained by the

13  agency pursuant to this section is confidential and exempt

14  from the provisions of s. 119.07(1) and s. 24(a), Art. I of

15  the State Constitution.

16         (b)  Meetings of the panel shall be open to the public

17  unless the provider or subscriber whose grievance will be

18  heard requests a closed meeting or the agency or the

19  Department of Insurance determines that information of a

20  sensitive personal nature which discloses the subscriber's

21  medical treatment or history; or information that which

22  constitutes a trade secret as defined by s. 812.081; or

23  information relating to internal risk-management risk

24  management programs as defined in s. 641.55(5)(c), (6), and

25  (8) may be revealed at the panel meeting, in which case that

26  portion of the meeting during which such sensitive personal

27  information, trade secret information, or internal

28  risk-management-program risk management program information is

29  discussed shall be exempt from the provisions of s. 286.011

30  and s. 24(b), Art. I of the State Constitution.  All closed

31  meetings shall be recorded by a certified court reporter.

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  1

  2  This subsection is subject to the Open Government Sunset

  3  Review Act of 1995 in accordance with s. 119.15, and shall

  4  stand repealed on October 2, 2003, unless reviewed and saved

  5  from repeal through reenactment by the Legislature.

  6         Section 2.  Subsection (4) of section 641.3154, Florida

  7  Statutes, is amended to read:

  8         641.3154  Organization liability; provider billing

  9  prohibited.--

10         (4)  A provider or any representative of a provider,

11  regardless of whether the provider is under contract with the

12  health maintenance organization, may not collect or attempt to

13  collect money from, maintain any action at law against, or

14  report to a credit agency a subscriber of an organization for

15  payment of services for which the organization is liable, if

16  the provider in good faith knows or should know that the

17  organization is liable. This prohibition applies during the

18  pendency of any claim for payment made by the provider to the

19  organization for payment of the services and any legal

20  proceedings or dispute resolution process to determine whether

21  the organization is liable for the services if the provider is

22  informed that such proceedings are taking place. It is

23  presumed that a provider does not know and should not know

24  that an organization is liable unless:

25         (a)  The provider is informed by the organization that

26  it accepts liability;

27         (b)  A court of competent jurisdiction determines that

28  the organization is liable; or

29         (c)  The department or agency makes a final

30  determination that the organization is required to pay for

31  such services subsequent to a recommendation made by the

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  1  Statewide Provider and Subscriber Assistance Panel pursuant to

  2  s. 408.7056.

  3         Section 3.  Subsection (1), paragraphs (b) and (e) of

  4  subsection (3), paragraph (d) of subsection (4), paragraph (g)

  5  of subsection (6), and subsections (9), (10), and (11) of

  6  section 641.511, Florida Statutes, are amended to read:

  7         641.511  Subscriber grievance reporting and resolution

  8  requirements.--

  9         (1)  Each Every organization must have a grievance

10  procedure available to its subscribers for the purpose of

11  addressing complaints and grievances. Each Every organization

12  must notify its subscribers that a subscriber must submit a

13  grievance within 1 year after the date of occurrence of the

14  action that initiated the grievance, and may submit the

15  grievance for review to the Statewide Provider and Subscriber

16  Assistance Program panel as provided in s. 408.7056 after

17  receiving a final disposition of the grievance through the

18  organization's grievance process.  An organization shall

19  maintain records of all grievances and shall report annually

20  to the agency the total number of grievances handled, a

21  categorization of the cases underlying the grievances, and the

22  final disposition of the grievances.

23         (3)  Each organization's grievance procedure, as

24  required under subsection (1), must include, at a minimum:

25         (b)  The names of the appropriate employees or a list

26  of grievance departments that are responsible for implementing

27  the organization's grievance procedure.  The list must include

28  the address and the toll-free telephone number of each

29  grievance department, the address of the agency and its

30  toll-free telephone hotline number, and the address of the

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  1  Statewide Provider and Subscriber Assistance Program and its

  2  toll-free telephone number.

  3         (e)  A notice that a subscriber may voluntarily pursue

  4  binding arbitration in accordance with the terms of the

  5  contract if offered by the organization, after completing the

  6  organization's grievance procedure and as an alternative to

  7  the Statewide Provider and Subscriber Assistance Program. Such

  8  notice shall include an explanation that the subscriber may

  9  incur some costs if the subscriber pursues binding

10  arbitration, depending upon the terms of the subscriber's

11  contract.

12         (4)

13         (d)  In any case in which when the review process does

14  not resolve a difference of opinion between the organization

15  and the subscriber or the provider acting on behalf of the

16  subscriber, the subscriber or the provider acting on behalf of

17  the subscriber may submit a written grievance to the Statewide

18  Provider and Subscriber Assistance Program.

19         (6)

20         (g)  In any case in which when the expedited review

21  process does not resolve a difference of opinion between the

22  organization and the subscriber or the provider acting on

23  behalf of the subscriber, the subscriber or the provider

24  acting on behalf of the subscriber may submit a written

25  grievance to the Statewide Provider and Subscriber Assistance

26  Program. In the letter of final decision for any case in which

27  the expedited review does not resolve a difference of opinion

28  between the organization and the subscriber or the provider

29  acting on behalf of the subscriber, the organization must

30  notify the subscriber or the provider acting on behalf of the

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  1  subscriber of the right to submit the written grievance to the

  2  Subscriber Assistance Program.

  3         (9)(a)  The agency shall advise subscribers with

  4  grievances to follow their organization's formal grievance

  5  process for resolution prior to review by the Statewide

  6  Provider and Subscriber Assistance Program. The subscriber

  7  may, however, submit a copy of the grievance to the agency at

  8  any time during the process.

  9         (b)  Requiring completion of the organization's

10  grievance process before the Statewide Provider and Subscriber

11  Assistance Program panel's review does not preclude the agency

12  from investigating any complaint or grievance before the

13  organization makes its final determination.

14         (10)  Each organization must notify the subscriber in a

15  final decision letter that the subscriber may request review

16  of the organization's decision concerning the grievance by the

17  Statewide Provider and Subscriber Assistance Program, as

18  provided in s. 408.7056, if the grievance is not resolved to

19  the satisfaction of the subscriber. The final decision letter

20  must inform the subscriber that the request for review must be

21  made within 365 days after receipt of the final decision

22  letter, must explain how to initiate such a review, and must

23  include the addresses and toll-free telephone numbers of the

24  agency and the Statewide Provider and Subscriber Assistance

25  Program.

26         (11)  Each organization, as part of its contract with

27  any provider, must require the provider to post a consumer

28  assistance notice prominently displayed in the reception area

29  of the provider and clearly noticeable by all patients. The

30  consumer assistance notice must state the addresses and

31  toll-free telephone numbers of the Agency for Health Care

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  1  Administration, the Statewide Provider and Subscriber

  2  Assistance Program, and the Department of Insurance. The

  3  consumer assistance notice must also clearly state that the

  4  address and toll-free telephone number of the organization's

  5  grievance department shall be provided upon request. The

  6  agency may adopt is authorized to promulgate rules necessary

  7  to administer implement this section.

  8         Section 4.  Subsection (4) of section 641.58, Florida

  9  Statutes, is amended to read:

10         641.58  Regulatory assessment; levy and amount; use of

11  funds; tax returns; penalty for failure to pay.--

12         (4)  The moneys received and deposited into the Health

13  Care Trust Fund shall be used to defray the expenses of the

14  agency in the discharge of its administrative and regulatory

15  powers and duties under this part, including conducting an

16  annual survey of the satisfaction of members of health

17  maintenance organizations; contracting with physician

18  consultants for the Statewide Provider and Subscriber

19  Assistance Panel; maintaining offices and necessary supplies,

20  essential equipment, and other materials, salaries and

21  expenses of required personnel; and discharging the

22  administrative and regulatory powers and duties imposed under

23  this part.

24         Section 5.  This act shall take effect July 1, 2002.

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

  2                          SENATE SUMMARY

  3    Redesignates the Statewide Provider and Subscriber
      Assistance Program as the Subscriber Assistance Program
  4    and the Statewide Provider and Subscriber Assistance
      Panel as the Subscriber Assistance Panel. Requires that
  5    the Agency for Health Care Administration adopt rules
      governing the grievance hearings conducted by the panel.
  6    Provides that the agency or the Department of Insurance
      may decline to issue a recommendation of the panel if the
  7    agency or department finds that additional information is
      needed or that the panel's recommendation was issued
  8    improvidently. Authorizes the agency or department to
      require that the panel reconsider a recommendation.
  9    Requires the Agency for Health Care Administration to
      develop a training program for panel members. (See bill
10    for details.)

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