House Bill hb0057

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    Florida House of Representatives - 2002                  HB 57

        By Representative Weissman






  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; providing

24         definitions; providing that a health

25         maintenance organization has the duty to

26         exercise ordinary care when making treatment

27         decisions; providing that a health maintenance

28         organization is liable for damages for harm

29         caused by failure to exercise ordinary care;

30         providing certain limitations on actions;

31         providing for a claim of liability to be

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  1         reviewed by an independent review organization;

  2         providing for the statute of limitations to be

  3         tolled under certain circumstances; requiring a

  4         health maintenance organization to disclose

  5         certain information to subscribers and

  6         prospective subscribers; specifying additional

  7         information that must be provided upon the

  8         request of a subscriber or prospective

  9         subscriber; requiring that a health maintenance

10         organization provide notice if a provider is

11         unavailable to render services; providing

12         requirements for the notice; requiring health

13         maintenance organizations to make certain

14         allowances in developing provider profiles and

15         measuring the performance of health care

16         providers; providing for such information to be

17         made available to the Department of Insurance,

18         the Agency for Health Care Administration, and

19         subscribers; prohibiting a health maintenance

20         organization from taking retaliatory action

21         against an employee for certain actions or

22         disclosures concerning improper patient care;

23         requiring that a health maintenance

24         organization refer a subscriber to an outside

25         provider in cases in which there is not a

26         provider within the organization's network to

27         provide a covered benefit; requiring that a

28         health maintenance organization provide a

29         procedure to allow a subscriber to obtain drugs

30         that are not included in the organization's

31         drug formulary; prohibiting a health

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  1         maintenance organization from arbitrarily

  2         interfering with certain decisions of a health

  3         care provider; prohibiting a health maintenance

  4         organization from discriminating against a

  5         subscriber based on race, national origin, and

  6         other factors; requiring health maintenance

  7         organizations to establish a policy governing

  8         the termination of health care providers;

  9         providing requirements for the policy;

10         authorizing the Insurance Commissioner to

11         suspend or revoke a certificate of authority

12         upon finding certain violations by a health

13         maintenance organization; providing for civil

14         penalties; repealing s. 641.513, F.S., relating

15         to requirements for providing emergency

16         services and care; amending s. 627.419, F.S.;

17         providing free choice to subscribers to certain

18         health care plans, and to persons covered under

19         certain health insurance policies or contracts,

20         in the selection of specified health care

21         providers; prohibiting coercion of provider

22         selection; specifying conditions under which

23         any health care provider must be permitted to

24         provide services under a health care plan or

25         health insurance policy or contract; providing

26         limitations; providing for civil penalties;

27         providing application; amending s. 641.28,

28         F.S.; limiting the parties that may recover

29         attorney's fees and court costs in an action to

30         enforce the terms of a health maintenance

31         contract; providing an effective date.

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

  2

  3         Section 1.  Managed care bill of rights.--

  4         (1)  GENERAL PROVISIONS.--

  5         (a)  Each health maintenance organization shall

  6  establish a system to provide for the presentation and

  7  resolution of grievances brought by a subscriber or brought by

  8  a representative or provider acting on behalf of a subscriber

  9  and with the subscriber's consent. Such grievance may include,

10  but need not be limited to, complaints regarding referral to a

11  specialist, quality of care, choice and accessibility of

12  providers, network adequacy, termination of coverage, denial

13  of approval for coverage, or other limitations in the receipt

14  of health care services. Each system for resolving grievances

15  must be in writing, given to each subscriber and each

16  provider, and incorporated into the health maintenance

17  contract. Each grievance system must include:

18         1.  The provision of the telephone numbers and business

19  addresses of each employee of the health maintenance

20  organization who is responsible for grievance resolution.

21         2.  A system to record and document the status of all

22  grievances, which must be maintained for at least 3 years.

23         3.  The services of a representative to assist

24  subscribers with grievance procedures upon request.

25         4.  Establishment of a specified response time for the

26  resolution of grievances, which may not exceed the time limits

27  set forth in subsection (2) or subsection (3).

28         5.  A detailed description of how grievances are

29  processed and resolved.

30         6.  A requirement that the determination must set forth

31  the basis for any denial and include specific information

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  1  concerning appeal rights, procedures for an independent

  2  external appeal, to whom and where to address any appeal, and

  3  the applicable deadlines for appeal.

  4         (b)  If a health maintenance organization fails to

  5  comply with any of the deadlines at any stage of the

  6  organization's internal review process, or waives the

  7  completion of the process, the subscriber, or the subscriber's

  8  representative or provider, is relieved of the obligation to

  9  complete the process and may proceed directly to the external

10  appeals process set forth in subsection (4).

11         (c)  All time limits set forth in subsections (2), (3),

12  and (4) must include an additional 3 days for mailing

13  following the date of the postmark. A decision with respect to

14  urgent or emergency care must also be communicated by

15  telephone.

16         (2)  INFORMAL APPEAL PROCESS.--

17         (a)  Each health maintenance organization must

18  establish and maintain an informal internal appeal process

19  whereby any subscriber, or representative or provider acting

20  on behalf of a subscriber and with the subscriber's consent,

21  who has a grievance concerning any of the actions by the

22  health maintenance organization as described in paragraph

23  (1)(a) or related thereto, shall be given the opportunity to

24  discuss and appeal that determination to the medical director

25  or the physician designee who rendered the determination.

26         (b)  An informal appeal under this subsection must be

27  concluded as soon as possible in accordance with the medical

28  exigencies of the case. If the appeal is from a determination

29  regarding urgent or emergency care, the appeal must be

30  resolved within 72 hours after the initial contact by the

31  subscriber or the subscriber's representative or provider. In

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  1  the case of all other appeals, the appeal must be resolved

  2  within 5 business days after the initial contact by the

  3  subscriber or the subscriber's representative or provider. If

  4  an appeal under this subsection is not resolved to the

  5  satisfaction of the subscriber, the health maintenance

  6  organization shall provide to the subscriber, the subscriber's

  7  provider, and the subscriber's representative, if applicable,

  8  a written explanation of the basis for the decision on the

  9  grievance and notification of the right to proceed to a formal

10  appeals process under subsection (3). The notice must be

11  postmarked within the applicable time limits prescribed in

12  this paragraph.

13         (3)  FORMAL INTERNAL APPEAL PROCESS.--

14         (a)  Each health maintenance organization shall

15  establish and maintain a formal internal appeal process

16  whereby any subscriber, or representative or provider acting

17  on behalf of a subscriber and with the subscriber's consent,

18  who is dissatisfied with the results of the informal appeal

19  under subsection (2) may pursue the subscriber's appeal before

20  a panel of physicians selected by the health maintenance

21  organization who have not been involved in the determination

22  being appealed.

23         (b)  The members of the formal appeal panel must

24  include consultant practitioners who are trained in or who

25  practice in the same specialty that would typically manage the

26  case being appealed or must include other licensed health care

27  professionals who are mutually agreed upon by the parties. The

28  consulting practitioners or professionals may not have been

29  involved in the determination being appealed. The consulting

30  practitioners or professionals must participate in the panel's

31

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  1  review of the case at the request of the subscriber or the

  2  subscriber's representative or provider.

  3         (c)  Within 10 business days after an appeal is filed

  4  under this subsection, the health maintenance organization

  5  must acknowledge in writing to the subscriber, or the

  6  subscriber's representative or provider, receipt of the

  7  appeal.

  8         (d)  A formal appeal under this subsection must be

  9  concluded as soon as possible. If the appeal is from a

10  determination regarding urgent or emergency care, the appeal

11  must be resolved within 72 hours after the filing of the

12  formal appeal. In the case of all other appeals, the appeal

13  must be resolved within 5 business days after the filing of

14  the formal appeal.

15         (e)  The health maintenance organization may extend the

16  review for up to an additional 20 days if it can demonstrate

17  reasonable cause for the delay which is beyond its control and

18  if the health maintenance organization provides a written

19  progress report and explanation for the delay to the Agency

20  for Health Care Administration. The health maintenance

21  organization must notify the subscriber, and where applicable

22  the subscriber's representative or provider, of the delay

23  prior to the end of the time limitation in paragraph (d).

24         (f)  If a formal appeal under this subsection is

25  denied, the health maintenance organization must notify the

26  subscriber, and where applicable the subscriber's avocate or

27  provider, of the denial. The notice must be in writing, set

28  forth the basis for the denial, and include notice of the

29  subscriber's right to proceed to an independent external

30  appeal under subsection (4). The notice must include specific

31

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  1  instruction on how and where the subscriber may file for an

  2  external appeal of the denial.

  3         (4)  EXTERNAL APPEAL PROCESS.--

  4         (a)  If a subscriber, or a subscriber's representative

  5  or provider acting on behalf of a subscriber and with the

  6  subscriber's consent, is dissatisfied with the results of a

  7  formal internal appeal under subsection (3), the subscriber,

  8  or the subscriber's representative or provider, may pursue an

  9  appeal to the Agency for Health Care Administration for

10  referral to an independent utilization review organization.

11         (b)  To initiate an external appeal, the subscriber, or

12  the subscriber's representative or provider, must file a

13  written request with the Agency for Health Care

14  Administration. The appeal must be filed within 30 business

15  days after receipt of the written decision of the formal

16  internal appeal under subsection (3). The agency may extend

17  for an additional 30 days the time for filing the appeal upon

18  a showing of good cause. A delay under this paragraph does not

19  affect a subscriber's right to proceed under any other

20  applicable state or federal law.

21         (c)  Within 5 days after receiving a request for an

22  external appeal, the Agency for Health Care Administration

23  shall determine whether the procedural requirements described

24  in this section have been satisfied. If those requirements

25  have been satisfied, the agency shall assign the appeal to an

26  independent utilization review organization for review.

27         (d)  The independent utilization review organization

28  shall assign the case for a full review within 5 days after

29  receiving an appeal under paragraph (c) and shall determine

30  whether, as a result of the health maintenance organization's

31  determination, the subscriber was deprived of any of the

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  1  rights described in paragraph (1)(a). The independent

  2  utilization review organization shall consider all pertinent

  3  medical records; reports submitted by the consulting physician

  4  and other documents submitted by the parties; any applicable

  5  and generally accepted practice guidelines developed by the

  6  Federal Government, national or professional medical

  7  societies, boards, or associations; and any applicable

  8  clinical protocols or practice guidelines developed by the

  9  health maintenance organization. The independent utilization

10  review organization shall refer all cases for review to a

11  consultant physician or other health care professional in the

12  same speciality or area of practice who manages the type of

13  treatment that is the subject of the appeal. All final

14  recommendations of the independent utilization review

15  organization are subject to approval by the medical director

16  of the independent utilization review organization or by an

17  alternate physician if the medical director has a conflict of

18  interest.

19         (e)  The independent utilization review organization

20  shall issue its recommended decision to the Agency for Health

21  Care Administration and provide copies to the subscriber, the

22  subscriber's representative or provider if applicable, and the

23  health maintenance organization. The decision must be issued

24  as soon as possible in accordance with the medical exigencies

25  of the case which, except as provided in this paragraph, may

26  not exceed 30 business days after receipt of all documentation

27  necessary to complete the review. However, the independent

28  utilization review organization may extend its review for a

29  reasonable period due to circumstances beyond the control of

30  all parties to the action, and must advise the subscriber, the

31  subscriber's representative or provider if applicable, the

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  1  health maintenance organization, and the Agency for Health

  2  Care Administration in a formal statement explaining the

  3  delay. If any party fails to provide documentation sought by

  4  the independent utilization review organization which is

  5  within that party's control, the party waives its position

  6  with respect to the review.

  7         (f)  If the independent utilization review organization

  8  determines that the subscriber was deprived of medically

  9  necessary covered services, the independent utilization review

10  organization shall, in its recommended decision, advise all

11  parties of the appropriate covered health care services the

12  subscriber is entitled to receive. In all cases, the

13  independent utilization review organization shall advise all

14  parties of the basis of its recommended decision.

15         (g)  Any party may appeal the recommended decision to

16  the Agency for Health Care Administration, with a copy of the

17  appeal to all other parties, within 20 days after the date the

18  decision is issued. If a decision is appealed, any other party

19  may file with the Agency for Health Care Administration its

20  position on the issues raised in the appeal, with copies to

21  all other parties, within 20 days after receipt of the initial

22  appeal.

23         (h)  The Agency for Health Care Administration shall

24  issue its decision within 30 days after completion of the

25  record in the case. The decision must include an explanation

26  of the basis supporting the decision. The final decision of

27  the Agency for Health Care Administration is binding on the

28  health maintenance organization.

29         (i)  The Agency for Health Care Administration shall

30  issue a report 30 days after the end of each calendar quarter

31  which summarizes all appeals and final decisions. The report

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  1  must maintain the confidentiality of patient information and

  2  shall be provided to the Governor, the Insurance Commissioner,

  3  and the appropriate substantive committees of the Senate and

  4  the House of Representatives. The quarterly reports shall be

  5  available to the public.

  6         (5)  INDEPENDENT UTILIZATION REVIEW ORGANIZATIONS.--

  7         (a)  The Agency for Health Care Administration shall

  8  enter into contracts with as many independent utilization

  9  review organizations throughout the state as the agency deems

10  necessary to conduct external appeals under this section. Each

11  independent utilization review organization must be

12  independent of any insurance carrier, and a physician may not

13  be assigned to hear any appeal that would constitute a

14  conflict of interest. As part of its contract, each

15  independent utilization review organization shall submit to

16  the Agency for Health Care Administration a list of the

17  organization's physician reviewers and the health maintenance

18  organizations, health insurers, health providers, and other

19  health care providers with whom the organization has a

20  contractual or other business arrangement. Each organization

21  shall update the list of its business relationships as

22  changes, additions, or deletions occur.

23         (b)  Upon any request for an external appeal, the

24  Agency for Health Care Administration shall assign the appeal

25  to an approved independent utilization review organization on

26  a random basis. The agency may deny an assignment if, in its

27  determination, the assignment would result in a conflict of

28  interest or would otherwise create the appearance of

29  impropriety.

30         (c)  The Agency for Health Care Administration shall

31  adopt rules to administer this section.

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  1         Section 2.  Right of subscribers to maintain an action

  2  against a health maintenance organization.--

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

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

  5  standard for health care services as determined by physicians

  6  and health care providers in accordance with the prevailing

  7  practices and standards of the medical profession and

  8  community.

  9         (b)  "Health care treatment decision" means a

10  determination made when medical services are actually provided

11  by the health care plan and a decision that affects the

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

13  plans subscribers.

14         (c)  "Ordinary care" means, in the case of a health

15  maintenance organization, that degree of care that a health

16  maintenance organization of ordinary prudence would use under

17  the same or similar circumstances. In the case of a person who

18  is an employee, agent, or representative of a health

19  maintenance organization, the term "ordinary care" means that

20  degree of care that a person of ordinary prudence in the same

21  profession, specialty, or area of practice would use in the

22  same or similar circumstances.

23         (2)  APPLICATION.--

24         (a)  A health maintenance organization has the duty to

25  exercise ordinary care when making health care treatment

26  decisions and is liable for damages for harm to a subscriber

27  which is proximately caused by its failure to exercise such

28  ordinary care.

29         (b)  A health maintenance organization is also liable

30  for damages for harm to a subscriber which are proximately

31  caused by the health care treatment decisions made by its:

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  1         1.  Employees;

  2         2.  Agents; or

  3         3.  Representatives,

  4

  5  who act on behalf of the health maintenance organization and

  6  over whom it has the right to exercise influence or control,

  7  whose actions or failure to act result in the failure to

  8  exercise ordinary care.

  9         (c)  It is a defense to any action asserted against a

10  health maintenance organization that:

11         1.  Neither the health maintenance organization or any

12  employee, agent, or representative for whose conduct such

13  health maintenance organization is liable under paragraph (b)

14  controlled, influenced, or participated in the health care

15  treatment decision; and

16         2.  The health maintenance organization did not deny or

17  delay payment for any treatment prescribed or recommended by a

18  health care provider to the subscriber.

19         (d)  The standards in paragraphs (a) and (b) do not

20  create an obligation on the part of the health maintenance

21  organization to provide treatment to a subscriber which is not

22  covered by the health care plan.

23         (e)  This section does not create any liability on the

24  part of an employer, an employer group-purchasing

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

26  which purchases coverage or assumes risk on behalf of its

27  employees.

28         (f)  A health maintenance organization may not remove a

29  physician or health care provider from its plan or refuse to

30  renew the physician or health care provider with its plan for

31

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  1  advocating on behalf of a subscriber for appropriate and

  2  medically necessary health care for the subscriber.

  3         (g)  A health maintenance organization may not enter

  4  into a contract with a physician, hospital, or other health

  5  care provider or pharmaceutical company which includes an

  6  indemnification or hold-harmless clause for the acts or

  7  conduct of the health maintenance organization. Any such

  8  indemnification or hold-harmless clause in an existing

  9  contract is void.

10         (h)  Any law of this state prohibiting a health

11  maintenance organization from practicing medicine or being

12  licensed to practice medicine may not be asserted as a defense

13  by a health maintenance organization in an action brought

14  against it pursuant to this section or any other law.

15         (i)  In an action against a health maintenance

16  organization, a finding that a physician or other health care

17  provider is an employee, agent, or representative of such

18  health maintenance organization may not be based solely on

19  proof that such person's name appears in a listing of approved

20  physicians or health care providers made available to

21  subscribers under a health care plan.

22         (j)  This section does not apply to workers'

23  compensation insurance coverage.

24         (3)  LIMITATIONS ON ACTIONS.--

25         (a)  A person may not maintain an action under this

26  section against a health maintenance organization that is

27  required to comply with the appeal process provided under

28  section 1 of this act unless the subscriber, or the

29  subscriber's representative:

30         1.  Has exhausted the appeals and review applicable

31  under the appeal process; or

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  1         2.  Before instituting the action:

  2         a.  Gives written notice of the claim as provided by

  3  paragraph (b); and

  4         b.  Agrees to submit the claim to a review by an

  5  independent review organization as required by paragraph (c).

  6         (b)  Notice of intent to maintain an action must be

  7  delivered or mailed to the health maintenance organization

  8  against whom the action is made not later than the 30th day

  9  before the date the claim is filed.

10         (c)  The subscriber, or the subscriber's

11  representative, must submit the claim to a review by an

12  independent review organization if the health maintenance

13  organization against whom the claim is made requests the

14  review not later than the 14th day after the date notice under

15  paragraph (b) is received by the health maintenance

16  organization. If the health maintenance organization does not

17  request the review within the period specified by this

18  paragraph, the subscriber, or the subscriber's representative,

19  is not required to submit the claim to independent review

20  before maintaining the action.

21         (d)  Subject to paragraph (e), if the subscriber has

22  not complied with paragraph (a), an action under this section

23  may not be dismissed by the court, but the court may, in its

24  discretion, order the parties to submit to an independent

25  review or mediation or other nonbinding alternative dispute

26  resolution and may abate the action for a period not to exceed

27  30 days for such purposes. Such orders of the court are the

28  sole remedies available to a party complaining of a

29  subscriber's failure to comply with paragraph (a).

30         (e)  The subscriber is not required to comply with

31  paragraph (c) and an order of abatement or other order

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  1  pursuant to paragraph (d) for failure to comply may not be

  2  imposed if the subscriber has filed a pleading alleging in

  3  substance that:

  4         1.  Harm to the subscriber has already occurred because

  5  of the conduct of the health maintenance organization or

  6  because of an act or omission of an employee, agent, or

  7  representative of such organization for whose conduct it is

  8  liable; and

  9         2.  The review would not be beneficial to the

10  subscriber.

11         (f)  If the court, upon motion by the defendant health

12  maintenance organization, finds after hearing that such

13  pleading was not made in good faith, the court may enter an

14  order pursuant to paragraph (d).

15         (g)  If the subscriber, or the subscriber's

16  representative, seeks to exhaust the appeals and review or

17  provides notice, as required by paragraph (a), before the

18  statute of limitations applicable to a claim against a health

19  maintenance organization has expired, the limitations period

20  is tolled until the later of:

21         1.  The 30th day after the date the subscriber, or the

22  subscriber's representative, has exhausted the process for

23  appeals and review applicable under the appeals process; or

24         2.  The 40th day after the date the subscriber, or the

25  subscriber's representative, gives notice under paragraph (b).

26         (h)  This section does not prohibit a subscriber from

27  pursuing other appropriate remedies, including injunctive

28  relief, a declaratory judgment, or other relief available

29  under law, if the requirement of exhausting the process for

30  appeal and review places the subscriber's health in serious

31  jeopardy.

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  1         Section 3.  Disclosure of information.--This section

  2  applies to all health maintenance contracts entered into by a

  3  health maintenance organization with a subscriber or group of

  4  subscribers.

  5         (1)  Each health maintenance organization shall supply

  6  written disclosure information to each subscriber, and upon

  7  request to each prospective subscriber prior to enrollment,

  8  which may be incorporated into the health maintenance

  9  contract. If any inconsistency exists between a separate

10  written disclosure statement and the health maintenance

11  contract, the terms of the health maintenance contract shall

12  control. The information to be disclosed must include at least

13  the following:

14         (a)  A description of coverage provisions; health care

15  benefits; benefit maximums, including benefit limitations; and

16  exclusions of coverage, including the definition of medical

17  necessity used in determining whether benefits will be

18  covered.

19         (b)  A description of requirements for prior

20  authorization or other requirements for treatments and

21  services.

22         (c)  A description of the utilization review policies

23  and procedures used by the health maintenance organization,

24  including:

25         1.  The circumstances under which utilization review

26  will be undertaken.

27         2.  The toll-free telephone number of the utilization

28  review agent.

29         3.  The timeframes under which utilization review

30  decisions must be made for prospective, retrospective, and

31  concurrent decisions.

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  1         4.  The right to reconsideration.

  2         5.  The right to an appeal, including the expedited and

  3  standard appeals processes and the timeframes for such

  4  appeals.

  5         6.  The right to designate a representative.

  6         7.  A notice that all denials of claims will be made by

  7  qualified health care providers and that all notices of

  8  denials will include information about the basis of the

  9  decision.

10         8.  A notice of the right to an appeal, together with a

11  description of the appeal process established under section 1

12  of this act.

13         9.  Any further appeal rights, if any.

14         (d)  A description prepared annually of the types of

15  methodologies the health maintenance organization uses to

16  reimburse health care providers, specifying the type of

17  methodology that is used to reimburse particular types of

18  providers or reimburse for the provision of particular types

19  of services. However, this paragraph does not require

20  disclosure of individual contracts or the specific details of

21  any financial arrangement between a health maintenance

22  organization and a health care provider.

23         (e)  An explanation of a subscriber's financial

24  responsibility for payment of premiums, coinsurance,

25  copayments, deductibles, and any other charges; annual limits

26  on a subscriber's financial responsibility; caps on payments

27  for covered services; and financial responsibility for

28  noncovered health care procedures, treatments, or services.

29         (f)  An explanation, where applicable, of a

30  subscriber's financial responsibility for payment when

31  services are provided by a health care provider who is not

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  1  part of the health maintenance organization's network of

  2  providers or by any provider without required authorization.

  3         (g)  A description of the grievance procedures to be

  4  used to resolve disputes between the health maintenance

  5  organization and a subscriber, including:

  6         1.  The right to file a grievance regarding any dispute

  7  between the health maintenance organization and a subscriber.

  8         2.  The right to file a grievance orally when the

  9  dispute is about referrals or covered benefits.

10         3.  The toll-free telephone number that subscribers may

11  use to file an oral grievance.

12         4.  The timeframes and circumstances for expedited and

13  standard grievances.

14         5.  The right to appeal a grievance determination and

15  the procedures for filing such an appeal.

16         6.  The timeframes and circumstances for expedited and

17  standard appeals.

18         7.  The right to designate a representative.

19         8.  A notice that all disputes involving clinical

20  decisions will be made by qualified health care providers and

21  that all notices of determination will include information

22  about the basis of the decision and further appeal rights, if

23  any.

24         (h)  A description of the procedure for obtaining

25  emergency services. Such description must include a definition

26  of emergency services, a notice that emergency services are

27  not subject to prior approval, and a description of the

28  subscriber's financial and other responsibilities regarding

29  obtaining such services, including the subscriber's financial

30  responsibilities, if any, when such services are received

31

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  1  outside the service area of the health maintenance

  2  organization.

  3         (i)  Where applicable, a description of procedures for

  4  subscribers to select and access the health maintenance

  5  organization's primary and specialty care providers, including

  6  notice of how to determine whether a participating provider is

  7  accepting new patients.

  8         (j)  Where applicable, a description of the procedures

  9  for changing primary and specialty care providers within the

10  health maintenance organization's network of providers.

11         (k)  Where applicable, notice that a subscriber may

12  obtain a referral to a health care provider outside of the

13  organization's network when the health maintenance

14  organization does not have a health care provider in the

15  network with appropriate training and experience to meet the

16  particular health care needs of the subscriber, and the

17  procedure by which the subscriber may obtain such referral.

18         (l)  Where applicable, notice that a subscriber with a

19  condition that requires ongoing care from a specialist may

20  request a standing referral to such a specialist and the

21  procedure for requesting and obtaining such a standing

22  referral.

23         (m)  Where applicable, notice that a subscriber with a

24  life-threatening condition or disease, or a degenerative and

25  disabling condition or disease, either of which requires

26  specialized medical care over a prolonged period, may request

27  a specialist responsible for providing or coordinating the

28  subscriber's medical care, and the procedure for requesting

29  and obtaining such a specialist.

30         (n)  Where applicable, notice that a subscriber with a

31  life-threatening condition or disease, or a degenerative and

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  1  disabling condition or disease, either of which requires

  2  specialized medical care over a prolonged period, may request

  3  access to a specialty care center, and the procedure by which

  4  such access may be obtained.

  5         (o)  A description of how the health maintenance

  6  organization addresses the needs of non-English-speaking

  7  subscribers.

  8         (p)  Notice of all appropriate mailing addresses and

  9  telephone numbers to be used by subscribers seeking

10  information or authorization.

11         (q)  Where applicable, a listing by specialty, which

12  may be in a separate document that is updated annually, of the

13  name, address, and telephone number of all participating

14  health care providers, including facilities, and the board

15  certification number of physicians.

16         (r)  A description of the mechanisms by which

17  subscribers may participate in developing policies of the

18  health maintenance organization.

19         (2)  Each health maintenance organization, upon the

20  request of a subscriber or prospective subscriber shall:

21         (a)  Provide a list of the names, business addresses,

22  and official positions of the board of directors, officers,

23  and members of the health maintenance organization.

24         (b)  Provide a copy of the most recent annual certified

25  financial statement of the health maintenance organization,

26  including its balance sheet and summary of receipts and

27  disbursements prepared by a certified public accountant.

28         (c)  Provide a copy of the most recent health

29  maintenance contracts.

30         (d)  Provide information relating to consumer

31  complaints compiled under s. 408.10, Florida Statutes.

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  1         (e)  Provide the procedures for protecting the

  2  confidentiality of medical records and other subscriber

  3  information.

  4         (f)  Where applicable, allow subscribers and

  5  prospective subscribers to inspect drug formularies used by

  6  the health maintenance organization and disclose whether

  7  individual drugs are included or excluded from coverage.

  8         (g)  Provide a written description of the

  9  organizational arrangements and ongoing procedures of the

10  health maintenance organization's quality assurance program,

11  if any.

12         (h)  Provide a description of the procedures followed

13  by the health maintenance organization in making decisions

14  about the experimental or investigational nature of individual

15  drugs, medical devices, or treatments in clinical trials.

16         (i)  Provide individual health care provider's

17  affiliations with participating hospitals, if any.

18         (j)  Upon written request, provide specific written

19  clinical review criteria relating to a particular condition or

20  disease and, where appropriate, other clinical information

21  that the health maintenance organization considers in its

22  utilization review and a description of how it is used in the

23  utilization review process. However, to the extent such

24  information is proprietary to the health maintenance

25  organization, the information may only be used for the

26  purposes of assisting the subscriber or prospective subscriber

27  in evaluating the covered services provided by the

28  organization.

29         (k)  Where applicable, provide the written application

30  procedures and minimum qualification requirements for a health

31  care provider to be considered by the health maintenance

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  1  organization for participation in the organization's network

  2  of providers.

  3         (l)  Disclose any other information required by rule of

  4  the Department of Insurance or the Agency for Health Care

  5  Administration.

  6         (3)  This section does not prevent a health maintenance

  7  organization from changing or updating the materials that are

  8  made available to subscribers.

  9         (4)  As to any program where the subscriber must select

10  a primary care provider, if a participating primary care

11  provider becomes unavailable to provide services to a

12  subscriber, the health maintenance organization shall provide

13  written notice within 15 days after the date the organization

14  becomes aware of such unavailability to each subscriber who

15  has chosen the provider as his or her primary care provider.

16  If a subscriber is enrolled in a managed care plan and is

17  undergoing an ongoing course of treatment with any other

18  participating provider who becomes unavailable to continue to

19  provide services to such subscriber, and the health

20  maintenance organization is aware of such ongoing course of

21  treatment, the organization shall provide written notice

22  within 15 days after the date the organization becomes aware

23  of such unavailability to such subscriber. Each notice must

24  also describe the procedures for continuing care and for

25  choosing an alternative provider.

26         Section 4.  Provider profiles.--Each health maintenance

27  organization, in developing provider profiles or otherwise

28  measuring the performance of health care providers, shall:

29         (1)  Make allowances for the severity of illness or

30  condition of the patient mix.

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  1         (2)  Make allowances for patients with multiple

  2  illnesses or conditions.

  3         (3)  Make available to the Department of Insurance and

  4  the Agency for Health Care Administration documentation of how

  5  the health maintenance organization makes such allowances.

  6         (4)  Inform subscribers and participating providers,

  7  upon request, how the health maintenance organization

  8  considers patient mix when profiling or evaluating providers.

  9         Section 5.  Retaliatory action prohibited.--A health

10  maintenance organization may not take any retaliatory action

11  against an employee because the employee does any of the

12  following:

13         (1)  Discloses, or threatens to disclose, to a

14  supervisor or any agency an activity, policy, or practice of

15  the health maintenance organization or another employer with

16  whom there is a business relationship which the employee

17  reasonably believes violates a law or rule, or, in the case of

18  an employee who is a licensed or certified health care

19  provider, reasonably believes constitutes improper quality of

20  patient care.

21         (2)  Provides information to, or testifies before, any

22  agency conducting an investigation, hearing, or inquiry into

23  any violation of law or rule by a health maintenance

24  organization or another employer with whom there is a business

25  relationship, or, in the case of an employee who is a licensed

26  or certified health care provider, provides information to, or

27  testifies before, any agency conducting an investigation,

28  hearing, or inquiry into the quality of patient care.

29         (3)  Objects to, or refuses to participate in, any

30  activity, policy, or practice that the employee reasonably

31  believes:

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  1         (a)  Violates a law or rule, or, if the employee is a

  2  licensed or certified health care provider, constitutes

  3  improper quality of patient care;

  4         (b)  Is fraudulent or criminal; or

  5         (c)  Is incompatible with a clear mandate of public

  6  policy concerning the public health, safety, or welfare or

  7  protection of the environment.

  8         Section 6.  Referrals to another provider.--In any case

  9  in which there is not a health care provider within the health

10  maintenance organization's provider network to provide a

11  covered benefit, the health maintenance organization shall

12  arrange for a referral to a provider with the necessary

13  expertise and ensure that the subscriber obtains the covered

14  benefit at a cost that does not exceed the subscriber's cost

15  if the benefit were obtained from a participating provider.

16         Section 7.  Prescription drug formulary.--If a health

17  maintenance organization uses a formulary for prescription

18  drugs, the health maintenance organization must include a

19  written procedure whereby a subscriber may obtain, without

20  penalty and in a timely fashion, specific drugs and

21  medications that are not included in the formulary when:

22         (1)  The formulary's equivalent has been ineffective in

23  the treatment of the subscriber's disease or condition; or

24         (2)  The formulary's drug causes, or is reasonably

25  expected to cause, adverse or harmful reactions in the

26  subscriber.

27         Section 8.  Arbitrary limitations or conditions for the

28  provision of services prohibited.--

29         (1)  A health maintenance organization may not

30  arbitrarily interfere with or alter the decision of the health

31  care provider regarding the manner or setting in which

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  1  particular services are delivered if the services are

  2  medically necessary or appropriate for treatment or diagnosis

  3  to the extent that such treatment or diagnosis is otherwise a

  4  covered benefit.

  5         (2)  Subsection (1) does not prohibit a health

  6  maintenance organization from limiting the delivery of

  7  services to one or more health care providers within a network

  8  of such providers.

  9         (3)  As used in subsection (1), the term "medically

10  necessary or appropriate" means a service or benefit that is

11  consistent with generally accepted principles of professional

12  medical practice.

13         Section 9.  Discrimination prohibited.--

14         (1)  Subject to subsection (2), a health maintenance

15  organization, with respect to health insurance coverage, may

16  not discriminate against a subscriber in the delivery of

17  health care services consistent with the benefits covered

18  under the health maintenance contract, or coverage required by

19  law, based on race, color, ethnicity, national origin,

20  religion, sex, age, mental or physical disability, sexual

21  orientation, genetic information, or source of payment.

22         (2)  Subsection (1) does not apply to eligibility for

23  coverage; the offering or guaranteeing of an offer of

24  coverage; the application of an exclusion for a preexisting

25  condition, consistent with applicable law; or premiums charged

26  for coverage under the health maintenance contract.

27         Section 10.  Termination of a provider.--Each health

28  maintenance organization shall establish a policy governing

29  the termination of providers. The policy must assure the

30  continued coverage of services at the contract price by a

31  terminated provider for up to 120 calendar days in cases where

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  1  it is medically necessary for the subscriber to continue

  2  treatment with the terminated provider. The case of the

  3  pregnancy of a subscriber constitutes medical necessity and

  4  coverage of services by the terminated provider shall continue

  5  to the postpartum evaluation of the subscriber, up to 6 weeks

  6  after delivery. The policy must clearly state that the

  7  determination as to the medical necessity of a subscriber's

  8  continued treatment with a terminated provider is subject to

  9  the appeal procedures set forth in section 1 of this act.

10         Section 11.  (1)  The Insurance Commissioner may

11  suspend or revoke a certificate of authority issued under part

12  I of chapter 641, Florida Statutes, or deny an application for

13  a certificate of authority, if the commissioner finds that:

14         (a)  The health maintenance organization is operating

15  significantly in contravention of its basic organizational

16  document, unless amendments to the basic organizational

17  document or other submissions that are consistent with the

18  operations of the organization have been filed with and

19  approved by the commissioner.

20         (b)  The health maintenance organization does not

21  provide or arrange for basic health care services.

22         (c)  The health maintenance organization is unable to

23  fulfill its obligations to furnish health care coverage.

24         (d)  The health maintenance organization is no longer

25  financially responsible and may reasonably be expected to be

26  unable to meet its obligations to subscribers or prospective

27  subscribers.

28         (e)  The health maintenance organization has failed to

29  correct, within the time prescribed, any deficiency occurring

30  due to the impairment of the prescribed minimum net worth of

31  the health maintenance organization.

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  1         (f)  The health maintenance organization has failed to

  2  implement the grievance procedures and appeal process required

  3  by section 1 of this act in a reasonable manner to resolve

  4  valid complaints.

  5         (g)  The health maintenance organization, or a person

  6  acting on behalf of the organization, has intentionally

  7  advertised or merchandised the services of the organization in

  8  an untrue, a misrepresentative, a misleading, a deceptive, or

  9  an unfair manner.

10         (h)  The continued operation of the health maintenance

11  organization would be hazardous to the subscribers of the

12  organization.

13         (i)  The health maintenance organization has otherwise

14  failed to substantially comply with part I of chapter 641,

15  Florida Statutes.

16         (2)  The Insurance Commissioner may impose a civil

17  penalty of not more than $25,000 against a health maintenance

18  organization for each cause listed in subsection (1). The

19  civil penalties may not exceed $100,000 against any one health

20  maintenance organization in 1 calendar year. The penalty may

21  be imposed in addition to or instead of a suspension or

22  revocation of the organization's certificate of authority.

23         Section 12.  Section 641.513, Florida Statutes, is

24  repealed.

25         Section 13.  Subsection (10) is added to section

26  627.419, Florida Statutes, to read:

27         627.419  Construction of policies.--

28         (10)(a)  Notwithstanding any other provision of law to

29  the contrary, any person covered under any health insurance

30  policy, health care services plan, or other contract that

31  provides for payment for medical expense benefits or

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  1  procedures is entitled at all times to free, full, and

  2  absolute choice in the selection of a provider or facility

  3  licensed or permitted under chapter 458, chapter 459, chapter

  4  460, chapter 461, chapter 463, chapter 465, or chapter 466.

  5  It is expressly forbidden for any health plan to contain any

  6  provision that would require or coerce a person covered by the

  7  plan to use any provider other than the provider selected by

  8  the subscriber.  Any health insurance policy, health care

  9  services plan, or other contract that provides for payment for

10  medical expense benefits or procedures must allow any health

11  care provider to participate as a service provider under a

12  health plan offered by the health insurance policy, health

13  care services plan, or other contract that provides for

14  payment for medical expense benefits or procedures, if the

15  health care provider agrees to:

16         1.  Accept the reimbursement rates negotiated by the

17  health insurance policy, health care services plan, or other

18  contract that provides for payment for medical expense

19  benefits or procedures with other health care providers that

20  provide the same service under the health plan; and

21         2.  Comply with all guidelines relating to quality of

22  care and utilization criteria which must be met by other

23  providers with whom the health insurance policy, health care

24  services plan, or other contract that provides for payment for

25  medical expense benefits or procedures has contractual

26  arrangements for those services.

27         (b)  The provider of any health insurance policy,

28  health care services plan, or other contract that violates

29  paragraph (a) is subject to a civil fine in the amount of:

30         1.  Up to $25,000 for each violation; or

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  1         2.  If the Insurance Commissioner determines that the

  2  provider has engaged in a pattern of violations of paragraph

  3  (a), up to $100,000 for each violation.

  4         Section 14.  The provisions of section 13 of this act

  5  do not apply to any health insurance policy that is in force

  6  before the effective date of this act but do apply to such

  7  policies at the next renewal period immediately following

  8  October 1, 2002.

  9         Section 15.  Section 641.28, Florida Statutes, is

10  amended to read:

11         641.28  Civil remedy.--In any civil action brought to

12  enforce the terms and conditions of a health maintenance

13  organization contract, only the prevailing subscriber, or a

14  representative or provider acting on behalf of a subscriber,

15  party is entitled to recover reasonable attorney's fees and

16  court costs. This section shall not be construed to authorize

17  a civil action against the department, its employees, or the

18  Insurance Commissioner or against the Agency for Health Care

19  Administration, its employees, or the director of the agency.

20         Section 16.  This act shall take effect October 1,

21  2002.

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

  2                          HOUSE SUMMARY

  3    Requires health maintenance organizations to provide an
      appeal process to resolve grievances brought by
  4    subscribers. Provides for an external appeal when a
      subscriber is dissatisfied with the results of a formal
  5    appeal. Directs the Agency for Health Care Administration
      to adopt rules governing the appeal process. Provides
  6    that a subscriber may maintain an action against a health
      maintenance organization that has not exercised ordinary
  7    care in making treatment decisions. Provides for a claim
      of liability to be reviewed by an independent review
  8    organization. Provides requirements for profiles of
      health care providers and the measurement of the
  9    performance of health care providers. Prohibits a health
      maintenance organization from taking retaliatory action
10    against an employee for certain actions or disclosures
      concerning improper patient care. Requires that a health
11    maintenance organization refer a subscriber to an outside
      provider in cases in which there is not a provider within
12    the organization's network to provide a covered benefit.
      Prohibits a health maintenance organization from
13    arbitrarily interfering with certain decisions of a
      health care provider. Authorizes the Insurance
14    Commissioner to suspend or revoke a certificate of
      authority upon finding certain violations by a health
15    maintenance organization. Provides that subscribers are
      entitled to free, full, and absolute choice of providers
16    offering physician, chiropractic, podiatry, optometry,
      pharmacy, or dental services, and prohibits coercion or
17    coercive requirements relating to subscriber selection.
      Provides for civil fines for violations. See bill for
18    details.

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