Senate Bill sb0256e1

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  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 Subscriber

  7         Assistance Panel to hold the record of a

  8         grievance hearing open for a specified period

  9         after the hearing; revising the Agency for

10         Health Care Administration's authority to

11         obtain records associated with subscriber

12         grievances; requiring the Agency for Health

13         Care Administration to impose a fine for each

14         violation relating to the production of records

15         from a health care provider or managed care

16         entity; specifying procedures for handling a

17         tie vote by the Subscriber Assistance Panel;

18         specifying circumstances under which the agency

19         or the Department of Insurance may delay

20         issuance of a proposed final order or emergency

21         order recommended by the panel; requiring that

22         the Agency for Health Care Administration

23         develop a training program for panel members;

24         amending ss. 641.3154, 641.511, 641.58, F.S.;

25         redesignating the Statewide Provider and

26         Subscriber Assistance Panel as the Subscriber

27         Assistance Panel; requiring that a subscriber

28         or the provider acting on behalf of a

29         subscriber be notified of the right to submit a

30         written grievance if a case is unresolved;

31         providing an effective date.


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

  2

  3         Section 1.  Section 408.7056, Florida Statutes, is

  4  amended to read:

  5         408.7056  Statewide Provider and Subscriber Assistance

  6  Program.--

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

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

  9  Administration.

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

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

12  rules that specify a process for appeal of an organizational

13  decision.

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

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

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

17  charitable organization that holds a current exemption from

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

19  Code, a licensed practitioner, a county health department

20  established under part I of chapter 154, a prescribed

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

22  federally supported primary care program such as a migrant

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

24  329 or s. 330 of the United States Public Health Services Act

25  that delivers health care services to individuals, or a

26  community facility that receives funds from the state under

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

28  Act and provides mental health services to individuals.

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

30  organization or a prepaid health clinic certified under

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


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    CS for SB 256                                  First Engrossed



  1  409.912, or an exclusive provider organization certified under

  2  s. 627.6472.

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

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

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

  6  provide assistance to subscribers and providers, including

  7  those whose grievances are not resolved by the managed care

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

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

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

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

12  should be taken concerning individual cases heard by the

13  panel. The panel shall hear every grievance filed by

14  subscribers and providers on behalf of subscribers, unless the

15  grievance:

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

17  accept a provider into its network of providers;

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

19  managed care entity or a reconsideration appeal through the

20  Medicare appeals process which does not involve a quality of

21  care issue;

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

23  state such as an administrative services organization,

24  third-party administrator, or federal employee health benefit

25  program;

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

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

28  plan;

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

30  42 C.F.R. ss. 431.220 et seq.;

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

  2  federal court;

  3         (g)  Is related to an appeal by nonparticipating

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

  5  subscriber by the managed care entity and the provider is

  6  involved in the care provided to the subscriber;

  7         (h)  Was filed before the subscriber or provider

  8  completed the entire internal grievance procedure of the

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

10  its timeframes for completing the internal grievance

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

12  do not apply;

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

14  subscriber or provider who filed the grievance, unless the

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

16  indicative of a pattern of inappropriate behavior;

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

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

19  accrued interest on unpaid balances, court costs, and

20  transportation costs associated with a grievance procedure;

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

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

23  managed care entity which constitute grounds for disciplinary

24  action by the appropriate professional licensing board and is

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

26  agency or department has reported these grievances to the

27  appropriate professional licensing board or to the health

28  facility regulation section of the agency for possible

29  investigation; or

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

  2  Failure of the subscriber or the provider to attend the

  3  hearing shall be considered a withdrawal of the grievance.

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

  5  days after receipt and make a determination whether the

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

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

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

  9  grievance either in the network area or by teleconference no

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

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

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

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

14  certified copies of documents, and take similar actions to

15  collect information and documentation that will assist the

16  panel in making findings of fact and a recommendation. A

17  managed care entity, subscriber, or provider may within 5

18  working days after the hearing of the grievance submit

19  additional information to supplement the record before the

20  panel.  Five working days after the hearing of the grievance,

21  the record shall be closed. The panel shall issue a written

22  recommendation, supported by findings of fact, to the provider

23  or subscriber, to the managed care entity, and to the agency

24  or the department no later than 10 15 working days after the

25  record is closed hearing the grievance. If at the hearing the

26  panel requests additional documentation or additional records,

27  the time for issuing a recommendation is tolled until the

28  information or documentation requested has been provided to

29  the panel.  Except as provided in this section, the

30  proceedings of the panel are not subject to chapter 120. In

31  the event of a tie vote by the panel, the tie shall be decided


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  1  by a second vote and additional votes if necessary. In the

  2  event of a deadlock, defined as three consecutive votes

  3  resulting in a tie vote, such deadlock shall result in a

  4  recommendation by the panel that no further action should be

  5  taken by the agency or department.

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

  7  along with a properly filed grievance, the agency requests

  8  medical records from a health care provider or managed care

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

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

11  to the agency. Records include all medical records, all

12  telephone communication logs associated with the grievance

13  both to and from the subscriber, and any other contents of the

14  internal grievance file associated with the complaint filed

15  with the Subscriber Assistance Program.  The agency must

16  impose a fine of up to $500 for each day that the requested

17  records are not produced. Failure to provide requested medical

18  records may result in the imposition of a fine of up to $500.

19  Each day that records are not produced is considered a

20  separate violation.

21         (5)  Grievances that the agency determines pose an

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

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

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

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

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

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

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

29  department or the agency within 10 days after hearing the

30  expedited grievance.

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

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

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

  4  after notification to the managed care entity and to the

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

  6  heard notwithstanding that the subscriber has not completed

  7  the internal grievance procedure of the managed care entity.

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

  9  emergency recommendation, supported by findings of fact, to

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

11  or the department for the purpose of deferring the imminent

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

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

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

15  managed care entity. An emergency order remains in force

16  until:

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

18  care entity;

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

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

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

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

23  final order.

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

25  recommendation to the agency or the department which may

26  include specific actions the managed care entity must take to

27  comply with state laws or rules regulating managed care

28  entities.

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

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

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


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  1  receipt of a recommendation in an expedited grievance, furnish

  2  to the agency or department written exceptions evidence in

  3  opposition to the recommendation or findings of fact of the

  4  panel.

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

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

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

  8  recommendation, the agency or the department shall issue may

  9  adopt the panel's recommendation or findings of fact in a

10  proposed final order or an emergency order, as provided in

11  chapter 120, which it shall issue to the managed care entity.

12  However, the agency or department may delay issuance of a

13  proposed final order or emergency order if the agency or

14  department finds that additional investigative information is

15  needed to resolve the subscriber's grievance or if the agency

16  or department finds that the panel's recommendation or

17  findings of fact have been improvidently issued by the panel.

18  The agency or department may issue a proposed final order or

19  an emergency order, as provided in chapter 120, imposing fines

20  or sanctions, including those contained in ss. 641.25 and

21  641.52.  The agency or the department may reject all or part

22  of the panel's recommendation or amend the panel's findings of

23  fact based upon:

24         (a)  Written exceptions provided in opposition to the

25  panel's recommendation or findings of fact;

26         (b)  Facts that the agency or department has discovered

27  at such times when additional investigative information is

28  required; or

29         (c)  The agency's or department's finding that the

30  panel's recommendation or findings of fact have been

31  improvidently issued.


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  1

  2  All fines collected under this subsection must be deposited

  3  into the Health Care Trust Fund.

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

  5  imposed, the agency and the department may consider the

  6  following factors:

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

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

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

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

11  provisions of chapter 641 were violated.

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

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

14         (c)  Any previous incidents of noncompliance by the

15  managed care entity.

16         (d)  Any other relevant factors the agency or

17  department considers appropriate in a particular grievance.

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

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

20  their respective agencies; a consumer appointed by the

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

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

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

24  a medical director and a primary care physician who shall

25  provide additional technical expertise to the panel.  The

26  medical director shall be selected from a health maintenance

27  organization with a current certificate of authority to

28  operate in Florida. The agency shall develop a training

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

30  program shall familiarize such persons with the substantive

31  and procedural laws and rules regarding their responsibilities


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

  2  past recommendations and any subsequent agency action by the

  3  agency or department in such cases.

  4         (12)  Every managed care entity shall submit a

  5  quarterly report to the agency and the department listing the

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

  7  grievances that which have not been resolved to the

  8  satisfaction of the subscriber or provider after the

  9  subscriber or provider follows the entire internal grievance

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

11  all subscribers and providers included in the quarterly

12  reports of their right to file an unresolved grievance with

13  the panel.

14         (13)  Any information that which would identify a

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

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

17  the Department of Insurance pursuant to this section is

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

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

20         (14)  A proposed final order issued by the agency or

21  department which only requires the managed care entity to take

22  a specific action under subsection (7) is subject to a summary

23  hearing in accordance with s. 120.574, unless all of the

24  parties agree otherwise. If the managed care entity does not

25  prevail at the hearing, the managed care entity must pay

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

27  department incurred in that proceeding.

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

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

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

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


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  1  agency pursuant to this section is confidential and exempt

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

  3  the State Constitution.

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

  5  unless the provider or subscriber whose grievance will be

  6  heard requests a closed meeting or the agency or the

  7  Department of Insurance determines that information of a

  8  sensitive personal nature which discloses the subscriber's

  9  medical treatment or history; or information that which

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

11  information relating to internal risk-management risk

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

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

14  portion of the meeting during which such sensitive personal

15  information, trade secret information, or internal

16  risk-management-program risk management program information is

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

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

19  meetings shall be recorded by a certified court reporter.

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21  This subsection is subject to the Open Government Sunset

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

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

24  from repeal through reenactment by the Legislature.

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

26  Statutes, is amended to read:

27         641.3154  Organization liability; provider billing

28  prohibited.--

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

30  regardless of whether the provider is under contract with the

31  health maintenance organization, may not collect or attempt to


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

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

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

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

  5  organization is liable. This prohibition applies during the

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

  7  organization for payment of the services and any legal

  8  proceedings or dispute resolution process to determine whether

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

10  informed that such proceedings are taking place. It is

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

12  that an organization is liable unless:

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

14  it accepts liability;

15         (b)  A court of competent jurisdiction determines that

16  the organization is liable; or

17         (c)  The department or agency makes a final

18  determination that the organization is required to pay for

19  such services subsequent to a recommendation made by the

20  Statewide Provider and Subscriber Assistance Panel pursuant to

21  s. 408.7056.

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

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

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

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

26         641.511  Subscriber grievance reporting and resolution

27  requirements.--

28         (1)  Each Every organization must have a grievance

29  procedure available to its subscribers for the purpose of

30  addressing complaints and grievances. Each Every organization

31  must notify its subscribers that a subscriber must submit a


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

  2  action that initiated the grievance, and may submit the

  3  grievance for review to the Statewide Provider and Subscriber

  4  Assistance Program panel as provided in s. 408.7056 after

  5  receiving a final disposition of the grievance through the

  6  organization's grievance process.  An organization shall

  7  maintain records of all grievances and shall report annually

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

  9  categorization of the cases underlying the grievances, and the

10  final disposition of the grievances.

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

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

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

14  of grievance departments that are responsible for implementing

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

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

17  grievance department, the address of the agency and its

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

19  Statewide Provider and Subscriber Assistance Program and its

20  toll-free telephone number.

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

22  binding arbitration in accordance with the terms of the

23  contract if offered by the organization, after completing the

24  organization's grievance procedure and as an alternative to

25  the Statewide Provider and Subscriber Assistance Program. Such

26  notice shall include an explanation that the subscriber may

27  incur some costs if the subscriber pursues binding

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

29  contract.

30         (4)

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

  2  not resolve a difference of opinion between the organization

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

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

  5  the subscriber may submit a written grievance to the Statewide

  6  Provider and Subscriber Assistance Program.

  7         (6)

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

  9  process does not resolve a difference of opinion between the

10  organization and the subscriber or the provider acting on

11  behalf of the subscriber, the subscriber or the provider

12  acting on behalf of the subscriber may submit a written

13  grievance to the Statewide Provider and Subscriber Assistance

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

15  the expedited review does not resolve a difference of opinion

16  between the organization and the subscriber or the provider

17  acting on behalf of the subscriber, the organization must

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

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

20  Subscriber Assistance Program.

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

22  grievances to follow their organization's formal grievance

23  process for resolution prior to review by the Statewide

24  Provider and Subscriber Assistance Program. The subscriber

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

26  any time during the process.

27         (b)  Requiring completion of the organization's

28  grievance process before the Statewide Provider and Subscriber

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

30  from investigating any complaint or grievance before the

31  organization makes its final determination.


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

  2  final decision letter that the subscriber may request review

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

  4  Statewide Provider and Subscriber Assistance Program, as

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

  6  the satisfaction of the subscriber. The final decision letter

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

  8  made within 365 days after receipt of the final decision

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

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

11  agency and the Statewide Provider and Subscriber Assistance

12  Program.

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

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

15  assistance notice prominently displayed in the reception area

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

17  consumer assistance notice must state the addresses and

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

19  Administration, the Statewide Provider and Subscriber

20  Assistance Program, and the Department of Insurance. The

21  consumer assistance notice must also clearly state that the

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

23  grievance department shall be provided upon request. The

24  agency may adopt is authorized to promulgate rules necessary

25  to administer implement this section.

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

27  Statutes, is amended to read:

28         641.58  Regulatory assessment; levy and amount; use of

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

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

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


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  1  agency in the discharge of its administrative and regulatory

  2  powers and duties under this part, including conducting an

  3  annual survey of the satisfaction of members of health

  4  maintenance organizations; contracting with physician

  5  consultants for the Statewide Provider and Subscriber

  6  Assistance Panel; maintaining offices and necessary supplies,

  7  essential equipment, and other materials, salaries and

  8  expenses of required personnel; and discharging the

  9  administrative and regulatory powers and duties imposed under

10  this part.

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

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