Senate Bill sb1154c1

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    Florida Senate - 2003                           CS for SB 1154

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




    317-1951-03

  1                      A bill to be entitled

  2         An act relating to healthcare professional

  3         liability insurance; providing legislative

  4         findings; creating s. 627.3575, F.S.; creating

  5         the Health Care Professional Liability

  6         Insurance Facility; providing purpose;

  7         providing for governance by a board of

  8         governors; providing for the facility to

  9         provide excess liability insurance for certain

10         health care professionals; providing for

11         premiums; providing for regulation by the

12         Office of Insurance Regulation of the Financial

13         Services Commission; providing applicability;

14         providing for debt and regulation thereof;

15         authorizing the Office of Insurance Regulation

16         of adopt rules; providing an effective date.

17  

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

19  

20         Section 1.  Section 627.3575, Florida Statutes, is

21  created to read:

22         627.3575  Health Care Professional Liability Insurance

23  Facility.--

24         (1)  FACILITY CREATED; PURPOSE; STATUS.--There is

25  created the Health Care Professional Liability Insurance

26  Facility. The facility is intended to meet ongoing

27  availability and affordability problems relating to liability

28  insurance for health care professionals by providing an

29  affordable, self-supporting source of excess insurance

30  coverage. The facility shall operate on a not-for-profit

31  basis. The facility is self-funding and is intended to serve a

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1  public purpose but is not a state agency or program, and no

 2  activity of the facility shall create any state liability.

 3         (2)  GOVERNANCE; POWERS.--

 4         (a)  The facility shall operate under a seven-member

 5  board of governors consisting of the Secretary of Health,

 6  three members appointed by the Governor, and three members

 7  appointed by the Chief Financial Officer. The board shall be

 8  chaired by the Secretary of Health. The secretary shall serve

 9  by virtue of his or her office, and the other members of the

10  board shall serve terms concurrent with the term of office of

11  the official who appointed them. Any vacancy on the board

12  shall be filled in the same manner as the original

13  appointment. Members serve at the pleasure of the official who

14  appointed them. Members are not eligible for compensation for

15  their service on the board, but the facility may reimburse

16  them for per diem and travel expenses at the same levels as

17  are provided in s. 112.061 for state employees. The board

18  shall form a claims committee consisting of individuals having

19  experience in the management and disposition of medical

20  malpractice claims.

21         (b)  The facility shall have such powers as are

22  necessary to operate as an excess insurer, including the power

23  to:

24         1.  Sue and be sued.

25         2.  Hire such employees and retain such consultants,

26  attorneys, actuaries, and other professionals as it deems

27  appropriate.

28         3.  Contract with such service providers as it deems

29  appropriate.

30         4.  Maintain offices appropriate to the conduct of its

31  business.

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1         5.  Take such other actions as are necessary or

 2  appropriate in fulfillment of its responsibilities under this

 3  section.

 4         (3)  COVERAGE PROVIDED.--The facility shall provide

 5  excess liability insurance coverage for health care

 6  professionals licensed under chapter 458 and chapter 459. The

 7  facility shall allow policyholders to select from policies

 8  with deductibles of $100,000, $200,000, and $250,000; excess

 9  coverage limits of $250,000 per claim and $750,000 annual

10  aggregate; $1 million per claim and $3 million annual

11  aggregate; or $2 million and $4 million annual aggregate. To

12  the greatest extent possible, the terms and conditions of the

13  policies shall be consistent with terms and conditions

14  commonly used by professional liability insurers. Since it is

15  the intent that the facility operate in all respects as an

16  excess insurer, the health care provider that elects to

17  self-insure for the chosen deductible shall be responsible for

18  the costs associated with the defense of a claim, including

19  attorney's fees. If the chosen deductible is to be satisfied

20  through commercial insurance, a self-insurance trust, or other

21  authorized insurance program, that entity shall be responsible

22  for the costs and fees associated with the defense of a claim.

23         (4)  COVERAGE REQUIRED.--

24         (a)  All health care professionals licensed under

25  chapter 458 or chapter 459 shall purchase coverage provided by

26  the facility as a condition of licensure.

27         (b)  Such professional shall at all times maintain:

28         1.  An escrow account consisting of cash or assets

29  eligible for deposit under s. 625.52 in an amount equal to the

30  chosen deductible amount of the policy;

31  

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1         2.  An unexpired, irrevocable letter of credit,

 2  established pursuant to chapter 675, in an amount not less

 3  than the chosen deductible amount of the policy. The letter of

 4  credit shall be payable to the health care professional as

 5  beneficiary upon presentment of a final judgment indicating

 6  liability and awarding damages to be paid by the physician if

 7  no appeal has been taken or if an appeal has been finally

 8  disposed of, or upon presentment of a settlement agreement

 9  signed by all parties to such agreement when such final

10  judgment or settlement is a result of a claim arising out of

11  the rendering of, or the failure to render, medical care and

12  services. Such letter of credit shall be nonassignable and

13  nontransferable. Such letter of credit shall be issued by any

14  bank or savings association organized and existing under the

15  laws of this state or any bank or savings association

16  organized under the laws of the United States that has its

17  principal place of business in this state or has a branch

18  office which is authorized under the laws of this state or of

19  the United States to receive deposits in this state; or

20         3.  Professional liability coverage in an amount not

21  less than the chosen deductible amount of the policy offered

22  pursuant to this act from an authorized insurer as defined

23  under s. 624.09, from a surplus lines insurer as defined under

24  s. 626.914(2), from a risk retention group as defined under s.

25  627.942, from the Joint Underwriting Association established

26  under s. 627.351(4), or through a plan of self-insurance as

27  provided in s. 627.357.

28         (5)  PREMIUMS.--The facility shall charge the

29  actuarially indicated premium for the coverage provided and

30  shall retain the services of consulting actuaries to prepare

31  its rate filings. The rate filings shall have no more than

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1  three rating categories by specialty and shall apply a

 2  discount or surcharge based on the provider's loss experience.

 3  The facility shall not provide dividends to policyholders,

 4  and, to the extent that premiums are more than the amount

 5  required to cover claims and expenses, such excess, as

 6  determined by the consulting actuaries, shall be retained by

 7  the facility for payment of future claims. If it is determined

 8  by the consulting actuaries that the premiums collected are

 9  more than sufficient for the payment of future claims, such

10  excess funds may be distributed to the participants. In the

11  event of dissolution of the facility, any amounts not required

12  as a reserve for outstanding claims shall be transferred to

13  the policyholders of record as of the last day of operation.

14         (6)  REGULATION; APPLICABILITY OF OTHER STATUTES.--

15         (a)  The facility shall operate pursuant to a plan of

16  operation approved by order of the Office of Insurance

17  Regulation of the Financial Services Commission. The board of

18  governors may at any time adopt amendments to the plan of

19  operation and submit the amendments to the Office of Insurance

20  Regulation for approval.

21         (b)  The facility is subject to regulation by the

22  Office of Insurance Regulation of the Financial Services

23  Commission in the same manner as other insurers and is exempt

24  from laws relating to a required surplus. Any required surplus

25  shall be determined by the Office of Insurance Regulation.

26         (c)  The facility is not subject to part II of chapter

27  631, relating to the Florida Insurance Guaranty Association.

28         (7)  STARTUP PROVISIONS.--

29         (a)  It is the intent of the Legislature that the

30  facility begin providing excess coverage no later than January

31  1, 2004.

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1         (b)  The Governor and the Chief Financial Officer shall

 2  make their appointments to the board of governors of the

 3  facility no later than July 1, 2003. Until the board is

 4  appointed, the Secretary of Health may perform ministerial

 5  acts on behalf of the facility as chair of the board of

 6  governors.

 7         (c)  Until the facility is able to hire permanent staff

 8  and enter into contracts for professional services, the Office

 9  of Insurance Regulation shall provide support services to the

10  facility.

11         (d)  In order to provide startup funds for the

12  facility, the board of governors may incur debt or enter into

13  agreements for lines of credit, provided that the sole source

14  of funds for repayment of any debt is future premium revenues

15  of the facility. The amount of such debt or lines of credit

16  may not exceed $10 million.

17         (e)  The Office of Insurance Regulation is authorized

18  to adopt rules to implement the provisions of this act.

19         Section 2.  Any policy issued under this act shall take

20  effect January 1, 2004, except that if a health care provider

21  holds a liability insurance policy that commenced in 2003 and

22  does not terminate until after January 1, 2004, such provider

23  must purchase coverage under this act upon the termination

24  date of that policy.

25         Section 3.  This act shall take effect upon becoming a

26  law.

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    Florida Senate - 2003                           CS for SB 1154
    317-1951-03




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 1154

 3                                 

 4  This proposed committee substitute creates the Health Care
    Professional Liability Insurance Facility, a not-for-profit
 5  facility intended to provide medical physicians, osteopathic
    physicians, and physician assistants who have coverage for
 6  smaller claims with an affordable source of insurance (excess
    liability insurance coverage) for larger claims. The facility
 7  must begin providing excess coverage no later than January 1,
    2004.
 8  
    All health care professionals licensed under ch. 458 or ch.
 9  459, F.S., must purchase coverage provided by the facility as
    a condition of licensure. In order to qualify for coverage,
10  the insured will be required to maintain at all times an
    escrow account, under the provisions of s. 625.52, F.S., a
11  letter of credit, established under the provisions of ch. 675,
    F.S., or professional liability insurance coverage equal to
12  the selected deductible amount.

13  The facility must charge actuarially indicated premiums and is
    subject to regulation by the Office of Insurance Regulation in
14  the same manner as other insurers. The facility must operate
    under a plan of operation approved by the Office of Insurance
15  Regulation.

16  The facility will operate under a board of governors
    consisting of the Secretary of Health, who will serve as board
17  chair; three members appointed by the Governor; and three
    members appointed by the Chief Financial Officer.
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