Senate Bill sb1202c1
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Florida Senate - 2003 CS for SB 1202
By the Committee on Banking and Insurance; and Senator
Alexander
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1 A bill to be entitled
2 An act relating to motor vehicle insurance
3 costs; providing a short title; providing
4 legislative findings and purpose; amending s.
5 119.105, F.S.; prohibiting disclosure of
6 confidential police reports for purposes of
7 commercial solicitation; amending s. 316.066,
8 F.S.; requiring the filing of a sworn statement
9 as a condition to accessing a crash report
10 stating the report will not be used for
11 commercial solicitation; providing a penalty;
12 creating part XIII in ch. 400, F.S., entitled
13 the Health Care Clinic Act; providing for
14 definitions and exclusions; providing for the
15 licensure, inspection, and regulation of health
16 care clinics by the Agency for Health Care
17 Administration; requiring licensure and
18 background screening; providing for clinic
19 inspections; providing rulemaking authority;
20 providing licensure fees; providing fines and
21 penalties for operating an unlicensed clinic;
22 providing for clinic responsibilities with
23 respect to personnel and operations; providing
24 accreditation requirements; providing for
25 injunctive proceedings and agency actions;
26 providing administrative penalties; amending s.
27 456.0375, F.S.; excluding certain entities from
28 clinic registration requirements; providing
29 retroactive application; amending s. 456.072,
30 F.S.; providing that making a claim with
31 respect to personal injury protection which is
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1 upcoded or which is submitted for payment of
2 services not rendered constitutes grounds for
3 disciplinary action; amending s. 626.7451,
4 F.S.; providing a per-policy fee to be remitted
5 to the insurer's Special Investigations Unit,
6 the Division of Insurance Fraud of the
7 Department of Financial Services, and the
8 Office of Statewide Prosecution for purposes of
9 preventing, detecting, and prosecuting motor
10 vehicle insurance fraud; amending s. 627.732,
11 F.S.; providing definitions; amending s.
12 627.736, F.S.; requiring that medical services
13 be lawfully rendered; providing allowable
14 amounts for specified services; requiring the
15 Department of Health, in consultation with
16 medical boards, to identify certain diagnostic
17 tests and to adopt medical utilization
18 guidelines for treatment of specified injuries
19 under personal injury protection; specifying
20 effective dates; providing for application of
21 fee schedules; specifying effective dates;
22 deleting certain provisions governing
23 arbitration; providing for compliance with
24 billing procedures; prohibiting insurers from
25 authorizing physicians to change opinion in
26 reports; providing requirements for physicians
27 with respect to maintaining such reports;
28 deleting provisions providing for a demand
29 letter; authorizing the Financial Services
30 Commission to determine cost savings under
31 personal injury protection benefits under
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1 specified conditions; amending s. 627.739,
2 F.S.; specifying application of a deductible
3 amount; amending s. 627.745, F.S.; providing
4 the requirements for a demand letter; revising
5 requirements for mediation; limiting attorney's
6 fees if matters are not resolved by mediation;
7 amending s. 768.79, F.S.; specifying
8 applicability of provisions relating to offer
9 of judgment and demand for judgment; amending
10 s. 817.234, F.S.; providing that it is a
11 material omission and insurance fraud for a
12 physician or other provider to waive a
13 deductible or copayment or not collect the
14 total amount of a charge; increasing the
15 penalties for certain acts of solicitation of
16 accident victims; providing mandatory minimum
17 penalties; prohibiting certain solicitation of
18 accident victims; providing penalties;
19 prohibiting a person from participating in an
20 intentional motor vehicle accident for the
21 purpose of making motor vehicle tort claims;
22 providing penalties, including mandatory
23 minimum penalties; amending s. 817.236, F.S.;
24 increasing penalties for false and fraudulent
25 motor vehicle insurance application; creating
26 s. 817.2361, F.S.; prohibiting the creation or
27 use of false or fraudulent motor vehicle
28 insurance cards; providing penalties; amending
29 s. 921.0022, F.S.; revising the offense
30 severity ranking chart of the Criminal
31 Punishment Code to reflect changes in penalties
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1 and the creation of additional offenses under
2 the act; repealing s. 456.0375, F.S., relating
3 to the regulation of clinics by the Department
4 of Health; providing effective dates.
5
6 Be It Enacted by the Legislature of the State of Florida:
7
8 Section 1. Florida Motor Vehicle Insurance
9 Affordability Reform Act; legislative findings; purpose.--
10 (1) This act may be cited as the "Florida Motor
11 Vehicle Insurance Affordability Reform Act."
12 (2) The Legislature finds and declares that:
13 (a) The Florida Motor Vehicle No-Fault Law, enacted 32
14 years ago, has provided valuable benefits over the years to
15 consumers in this state. The principle underlying the
16 philosophical basis of the no-fault or personal injury
17 protection (PIP) insurance system is that of a trade-off of
18 one benefit for another, specifically providing medical and
19 other benefits in return for a limitation on the right to sue
20 for nonserious injuries.
21 (b) The PIP insurance system has provided benefits in
22 the form of medical payments, lost wages, replacement
23 services, funeral payments, and other benefits, without regard
24 to fault, to consumers injured in automobile accidents.
25 (c) However, the goals behind the adoption of the
26 no-fault law in 1971, which were to quickly and efficiently
27 compensate accident victims regardless of fault, to reduce the
28 volume of lawsuits by eliminating minor injuries from the tort
29 system, and to reduce overall motor vehicle insurance costs,
30 have been significantly compromised due to the fraud and abuse
31 that has permeated the PIP insurance market.
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1 (d) Motor vehicle insurance fraud and abuse, whether
2 in the form of inappropriate medical treatments, inflated
3 claims, staged accidents, solicitation of accident victims,
4 falsification of records, or in any other form, has increased
5 premiums for consumers and must be uncovered and vigorously
6 prosecuted.
7 (e) The PIP insurance market has been further
8 compromised by an increase in litigation since the system no
9 longer effectively limits the use of the tort system to
10 injuries that are significant and permanent.
11 (f) Since the enactment of the verbal threshold in the
12 1970s, the substantial increase in the cost of medical-expense
13 benefits indicates that the benefits are being overused for
14 the purpose of gaining standing to sue for pain and suffering,
15 thus undermining the limitations imposed by the threshold and
16 necessitating a tightening of the threshold and imposing
17 further controls on the use of those benefits, including the
18 establishment of a medical fee schedule, utilization
19 protocols, provisions for determining whether treatments or
20 diagnostic tests are medically necessary, and procedures to
21 strengthen the regulation of health care clinics.
22 (g) The no-fault system has been weakened in part due
23 to certain insurers not adequately or timely compensating
24 injured accident victims or health care providers. In
25 addition, the system has become increasingly litigious with
26 attorneys obtaining large fees by litigating, in certain
27 instances, over relatively small amounts that are in dispute.
28 Expanding the provisions of the demand letter and setting
29 mediation guidelines for legal disputes is necessary to
30 encourage settlements, decrease litigation, and maintain a
31 healthy insurance market.
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1 (h) It is a matter of great public importance that, in
2 order to provide a healthy and competitive automobile
3 insurance market, consumers be able to obtain affordable
4 coverage, insurers be entitled to earn an adequate rate of
5 return, and providers of services be compensated fairly.
6 (i) It is further a matter of great public importance
7 that, in order to protect the public's health, safety, and
8 welfare, it is necessary to enact the provisions contained in
9 this act in order to prevent PIP insurance fraud and abuse and
10 to curb escalating medical, legal, and other related costs,
11 and the Legislature finds that the provisions of this act are
12 the least restrictive actions necessary to achieve this goal.
13 (j) Therefore, the purpose of this act is to restore
14 the health of the PIP insurance market in Florida by
15 addressing these issues, preserving the no-fault system, and
16 realizing cost-savings for all people in this state.
17 Section 2. Section 119.105, Florida Statutes, is
18 amended to read:
19 119.105 Protection of victims of crimes or
20 accidents.--Police reports are public records except as
21 otherwise made exempt or confidential by general or special
22 law. Every person is allowed to examine nonexempt or
23 nonconfidential police reports. A No person who comes into
24 possession of exempt or confidential information contained in
25 police reports may not inspects or copies police reports for
26 the purpose of obtaining the names and addresses of the
27 victims of crimes or accidents shall use that any information
28 contained therein for any commercial solicitation of the
29 victims or relatives of the victims of the reported crimes or
30 accidents and may not knowingly disclose such information to
31 any third party for the purpose of such solicitation during
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1 the period of time that information remains exempt or
2 confidential. This section does not Nothing herein shall
3 prohibit the publication of such information to the general
4 public by any news media legally entitled to possess that
5 information or the use of such information for any other data
6 collection or analysis purposes by those entitled to possess
7 that information.
8 Section 3. Paragraph (c) of subsection (3) of section
9 316.066, Florida Statutes, is amended, and paragraph (f) is
10 added to that subsection, to read:
11 316.066 Written reports of crashes.--
12 (3)
13 (c) Crash reports required by this section which
14 reveal the identity, home or employment telephone number or
15 home or employment address of, or other personal information
16 concerning the parties involved in the crash and which are
17 received or prepared by any agency that regularly receives or
18 prepares information from or concerning the parties to motor
19 vehicle crashes are confidential and exempt from s. 119.07(1)
20 and s. 24(a), Art. I of the State Constitution for a period of
21 60 days after the date the report is filed. However, such
22 reports may be made immediately available to the parties
23 involved in the crash, their legal representatives, their
24 licensed insurance agents, their insurers or insurers to which
25 they have applied for coverage, persons under contract with
26 such insurers to provide claims or underwriting information,
27 prosecutorial authorities, radio and television stations
28 licensed by the Federal Communications Commission, newspapers
29 qualified to publish legal notices under ss. 50.011 and
30 50.031, and free newspapers of general circulation, published
31 once a week or more often, available and of interest to the
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1 public generally for the dissemination of news. For the
2 purposes of this section, the following products or
3 publications are not newspapers as referred to in this
4 section: those intended primarily for members of a particular
5 profession or occupational group; those with the primary
6 purpose of distributing advertising; and those with the
7 primary purpose of publishing names and other personally
8 identifying information concerning parties to motor vehicle
9 crashes. Any local, state, or federal agency, agent, or
10 employee that is authorized to have access to such reports by
11 any provision of law shall be granted such access in the
12 furtherance of the agency's statutory duties notwithstanding
13 the provisions of this paragraph. Any local, state, or federal
14 agency, agent, or employee receiving such crash reports shall
15 maintain the confidential and exempt status of those reports
16 and shall not disclose such crash reports to any person or
17 entity. As a condition precedent to accessing a Any person
18 attempting to access crash report, reports within 60 days
19 after the date the report is filed a person must present a
20 valid driver's license or other photographic identification
21 and proof of status legitimate credentials or identification
22 that demonstrates his or her qualifications to access that
23 information and must also file a written sworn statement with
24 the state or local agency in possession of the information
25 stating that information from a crash report made confidential
26 by this section will not be used for any commercial
27 solicitation of accident victims, or knowingly disclosed to
28 any third party for the purpose of such solicitation, during
29 the period of time that the information remains confidential.
30 This subsection does not prevent the dissemination or
31 publication of news to the general public by any legitimate
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1 media entitled to access confidential information pursuant to
2 this section. A law enforcement officer as defined in s.
3 943.10(1) may enforce this subsection. This exemption is
4 subject to the Open Government Sunset Review Act of 1995 in
5 accordance with s. 119.15, and shall stand repealed on October
6 2, 2006, unless reviewed and saved from repeal through
7 reenactment by the Legislature.
8 (d) Any employee of a state or local agency in
9 possession of information made confidential by this section
10 who knowingly discloses such confidential information to a
11 person not entitled to access such information under this
12 section is guilty of a felony of the third degree, punishable
13 as provided in s. 775.082, s. 775.083, or s. 775.084.
14 (e) Any person, knowing that he or she is not entitled
15 to obtain information made confidential by this section, who
16 obtains or attempts to obtain such information is guilty of a
17 felony of the third degree, punishable as provided in s.
18 775.082, s. 775.083, or s. 775.084.
19 (f) Any person who knowingly uses confidential
20 information in violation of a filed written sworn statement
21 required by this section commits a felony of the third degree,
22 punishable as provided in s. 775.082, s. 775.083, or s.
23 775.084.
24 Section 4. Effective October 1, 2003, part XIII of
25 chapter 400, Florida Statutes, consisting of sections 400.201,
26 400.203, 400.205, 400.207, 400.209, 400.211, 400.213, 400.215,
27 400.217, 400.219, and 400.221 is created to read:
28 400.201 Short title; legislative findings.--
29 (1) This part, consisting of ss. 400.201-400.221, may
30 be cited as the "Health Care Clinic Act."
31
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1 (2) The Legislature finds that the regulation of
2 health care clinics must be strengthened to prevent
3 significant cost and harm to consumers. The purpose of this
4 part is to provide for the licensure, establishment, and
5 enforcement of basic standards for health care clinics and to
6 provide administrative oversight by the Agency for Health Care
7 Administration.
8 400.203 Definitions.--
9 (1) "Agency" means the Agency for Health Care
10 Administration.
11 (2) "Applicant" means an individual owner,
12 corporation, partnership, firm, business, association, or
13 other entity that owns or controls, directly or indirectly, 5
14 percent or more of an interest in the clinic and that applies
15 for a clinic license.
16 (3) "Clinic" means an entity at which health care
17 services are provided to individuals and which tenders charges
18 for reimbursement for such services. For purposes of this part
19 the term does not include and the licensure requirements of
20 this part do not apply to:
21 (a) Entities licensed or registered by the state under
22 chapter 390, chapter 394, chapter 395, chapter 397, this
23 chapter, chapter 463, chapter 465, chapter 466, chapter 478,
24 chapter 480, or chapter 484.
25 (b) Entities that own, directly or indirectly,
26 entities licensed or registered by the state pursuant to
27 chapter 390, chapter 394, chapter 395, chapter 397, this
28 chapter, chapter 463, chapter 465, chapter 466, chapter 478,
29 chapter 480, or chapter 484.
30 (c) Entities that are owned, directly or indirectly,
31 by an entity licensed or registered by the state pursuant to
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1 chapter 390, chapter 394, chapter, 395, chapter 397, this
2 chapter, chapter 463, chapter 465, chapter 466, chapter 478,
3 chapter 480, or chapter 484.
4 (d) Entities that are under common ownership, directly
5 or indirectly, with an entity licensed or registered by the
6 state pursuant to chapter 390, chapter 394, chapter 395,
7 chapter 397, this chapter, chapter 463, chapter 465, chapter
8 466, chapter 478, chapter 480, or chapter 484.
9 (e) An entity that is exempt from federal taxation
10 under 26 U.S.C. s. 501(c)(3).
11 (f) A sole proprietorship, group practice,
12 partnership, or corporation that provides health care services
13 by licensed health care practitioners under chapter 457,
14 chapter 458, chapter 459, chapter 460, chapter 461, chapter
15 462, chapter 463, chapter 466, chapter 467, chapter 484,
16 chapter 486, chapter 490, chapter 491, or part I, part III,
17 part X, part XIII, or part XIV of chapter 468, or s. 464.012,
18 which are wholly owned by a licensed health care practitioner,
19 or the licensed health care practitioner and the spouse,
20 parent, or child of a licensed health care practitioner, so
21 long as one of the owners who is a licensed health care
22 practitioner is supervising the services performed therein and
23 is legally responsible for the entity's compliance with all
24 federal and state laws. However, a health care practitioner
25 may not supervise services beyond the scope of the
26 practitioner's license.
27 (4) "Medical director" means a physician who is
28 employed or under contract with a clinic and who maintains a
29 full and unencumbered physician license in accordance with
30 chapter 458, chapter 459, chapter 460, or chapter 461.
31 However, if the clinic is limited to providing health care
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1 services pursuant to chapter 457, chapter 484, chapter 486,
2 chapter 490, or chapter 491 or part I, part III, part X, part
3 XIII, or part XIV of chapter 468, the clinic may appoint a
4 health care practitioner licensed under that chapter to serve
5 as a clinic director who is responsible for the clinic's
6 activities. A health care practitioner may not serve as the
7 clinic director if the services provided at the clinic are
8 beyond the scope of that practitioner's license.
9 400.205 License requirements; background screenings;
10 prohibitions.--
11 (1) Each clinic, as defined in s. 400.203, must be
12 licensed and shall at all times maintain a valid license with
13 the agency. Each clinic location shall be licensed separately
14 regardless of whether the clinic is operated under the same
15 business name or management as another clinic. Mobile clinics
16 must perform health care services only at a single location.
17 (2) The initial clinic license application shall be
18 filed with the agency by all clinics, as defined in s.
19 400.203, on or before March 1, 2004. A clinic license must be
20 renewed biennially.
21 (3) Applicants that submit an application on or before
22 March 1, 2004, which meets all requirements for initial
23 licensure as specified in this section shall receive a
24 temporary license until the completion of an initial
25 inspection verifying that the applicant meets all requirements
26 in rules authorized by s. 400.211.
27 (4) Application for an initial clinic license or for
28 renewal of an existing license shall be notarized on forms
29 furnished by the agency and must be accompanied by the
30 appropriate license fee as provided in s. 400.211. The agency
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1 shall take final action on an initial license application
2 within 60 days after receipt of all required documentation.
3 (5) The application shall contain information that
4 includes, but need not be limited to, information pertaining
5 to the name, residence and business address, phone number,
6 social security number, and license number of the medical or
7 clinic director, of the licensed medical providers employed or
8 under contract with the clinic, and of each person who,
9 directly or indirectly, owns or controls 5 percent or more of
10 an interest in the clinic.
11 (6) The applicant must file with the application
12 satisfactory proof that the clinic is in compliance with this
13 part and applicable rules, including:
14 (a) A listing of services to be provided either
15 directly by the applicant or through contractual arrangements
16 with existing providers;
17 (b) The number and discipline of each professional
18 staff member to be employed; and
19 (c) Proof of financial ability to operate. An
20 applicant must demonstrate financial ability to operate a
21 clinic by submitting a balance sheet and an income and expense
22 statement for the first year of operation which provide
23 evidence of the applicant's having sufficient assets, credit,
24 and projected revenues to cover liabilities and expenses. The
25 applicant shall have demonstrated financial ability to operate
26 if the applicant's assets, credit, and projected revenues meet
27 or exceed projected liabilities and expenses. All documents
28 required under this subsection must be prepared in accordance
29 with generally accepted accounting principles, and the
30 financial statement must be signed by a certified public
31 accountant.
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1 (7) Each applicant for licensure shall comply with the
2 following requirements:
3 (a) As used in this subsection, the term "applicant"
4 means individuals owning or controlling, directly or
5 indirectly, 5 percent or more of an interest in a clinic; the
6 medical or clinic director, or a similarly titled person who
7 is responsible for the day-to-day operation of the licensed
8 clinic; the financial officer or similarly titled individual
9 who is responsible for the financial operation of the clinic;
10 and licensed medical providers at the clinic.
11 (b) Upon receipt of a completed, signed, and dated
12 application, the agency shall require background screening of
13 the applicant, in accordance with the level 2 standards for
14 screening set forth in chapter 435. Proof of compliance with
15 the level 2 background screening requirements of chapter 435
16 which has been submitted within the previous 5 years in
17 compliance with any other health care licensure requirements
18 of this state is acceptable in fulfillment of this paragraph.
19 (c) Each applicant must submit to the agency, with the
20 application, a description and explanation of any exclusions,
21 permanent suspensions, or terminations of an applicant from
22 the Medicare or Medicaid programs. Proof of compliance with
23 the requirements for disclosure of ownership and control
24 interest under the Medicaid or Medicare programs may be
25 accepted in lieu of this submission.
26 (d) A license may not be granted to a clinic if the
27 applicant has been found guilty of, regardless of
28 adjudication, or has entered a plea of nolo contendere or
29 guilty to, any offense prohibited under the level 2 standards
30 for screening set forth in chapter 435, or a violation of
31 insurance fraud under s. 817.234, within the past 5 years. If
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1 the applicant has been convicted of an offense prohibited
2 under the level 2 standards or insurance fraud in any
3 jurisdiction, the applicant must show that his or her civil
4 rights have been restored prior to submitting an application.
5 (e) The agency may deny or revoke licensure if the
6 applicant has falsely represented any material fact or omitted
7 any material fact from the application required by this part.
8 (8) Requested information omitted from an application
9 for licensure, license renewal, or transfer of ownership must
10 be filed with the agency within 21 days after receipt of the
11 agency's request for omitted information, or the application
12 shall be deemed incomplete and shall be withdrawn from further
13 consideration.
14 (9) The failure to file a timely renewal application
15 shall result in a late fee charged to the facility in an
16 amount equal to 50 percent of the current license fee.
17 400.207 Clinic inspections; emergency suspension;
18 costs.--
19 (1) Any authorized officer or employee of the agency
20 shall make inspections of the clinic as part of the initial
21 license application or renewal application. The application
22 for a clinic license issued under this part or for a renewal
23 license constitutes permission for an appropriate agency
24 inspection to verify the information submitted on or in
25 connection with the application or renewal.
26 (2) An authorized officer or employee of the agency
27 may make unannounced inspections of clinics licensed pursuant
28 to this part as are necessary to determine that the clinic is
29 in compliance with this part and with applicable rules. A
30 licensed clinic shall allow full and complete access to the
31 premises and to billing records or information to any
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1 representative of the agency who makes an inspection to
2 determine compliance with this part and with applicable rules.
3 (3) Failure by a clinic licensed under this part to
4 allow full and complete access to the premises and to billing
5 records or information to any representative of the agency who
6 makes a request to inspect the clinic to determine compliance
7 with this part or failure by a clinic to employ a qualified
8 medical director or clinic director constitutes a ground for
9 emergency suspension of the license by the agency pursuant to
10 s. 120.60(6).
11 (4) In addition to any administrative fines imposed,
12 the agency may assess a fee equal to the cost of conducting a
13 complaint investigation.
14 400.209 License renewal; transfer of ownership;
15 provisional license.--
16 (1) An application for license renewal must contain
17 information as required by the agency.
18 (2) Ninety days before the expiration date, an
19 application for renewal must be submitted to the agency.
20 (3) The clinic must file with the renewal application
21 satisfactory proof that it is in compliance with this part and
22 applicable rules. If there is evidence of financial
23 instability, the clinic must submit satisfactory proof of its
24 financial ability to comply with the requirements of this
25 part.
26 (4) When transferring the ownership of a clinic, the
27 transferee must submit an application for a license at least
28 60 days before the effective date of the transfer. If the
29 clinic is being leased, a copy of the lease agreement must be
30 filed with the application.
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1 (5) The license may not be sold, assigned, or
2 otherwise transferred, voluntarily or involuntarily, and is
3 valid only for the clinic owners and location for which
4 originally issued.
5 (6) A clinic against whom a revocation or suspension
6 proceeding is pending at the time of license renewal may be
7 issued a provisional license effective until final disposition
8 by the agency of such proceedings. If judicial relief is
9 sought from the final disposition, the agency that has
10 jurisdiction may issue a temporary permit for the duration of
11 the judicial proceeding.
12 400.211 Rulemaking authority; license fees.--
13 (1) The agency shall adopt rules necessary to
14 administer the clinic administration, regulation, and
15 licensure program, including rules establishing the specific
16 licensure requirements, procedures, forms, and fees. It shall
17 adopt rules establishing a procedure for the biennial renewal
18 of licenses. The rules shall specify the expiration dates of
19 licenses, the process of tracking compliance with financial
20 responsibility requirements, and any other conditions of
21 renewal required by law or rule.
22 (2) The agency shall adopt rules specifying
23 limitations on the number of licensed clinics and licensees
24 for which a medical director or a clinic director may assume
25 responsibility for purposes of this part. In determining the
26 quality of supervision a medical director or a clinic director
27 can provide, the agency shall consider the number of clinic
28 employees, the clinic location, and the health care services
29 provided by the clinic.
30 (3) License application and renewal fees must be
31 reasonably calculated by the agency to cover its costs in
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1 carrying out its responsibilities under this part, including
2 the cost of licensure, inspection, and regulation of clinics,
3 and must be of such amount that the total fees collected do
4 not exceed the cost of administering and enforcing compliance
5 with this part. Clinic licensure fees are nonrefundable and
6 may not exceed $2,000. The agency shall adjust the license fee
7 annually by not more than the change in the Consumer Price
8 Index based on the 12 months immediately preceding the
9 increase. All fees collected under this part must be deposited
10 in the Health Care Trust Fund for the administration of this
11 part.
12 400.213 Unlicensed clinics; penalties; fines;
13 verification of licensure status.--
14 (1) It is unlawful to own, operate, or maintain a
15 clinic without obtaining a license under this part.
16 (2) Any person who owns, operates, or maintains an
17 unlicensed clinic commits a felony of the third degree,
18 punishable as provided in s. 775.082, s. 775.083, or s.
19 775.084. Each day of continued operation is a separate
20 offense.
21 (3) Any person found guilty of violating subsection
22 (2) a second or subsequent time commits a felony of the second
23 degree, punishable as provided under s. 775.082, s. 775.083,
24 or s. 775.084. Each day of continued operation is a separate
25 offense.
26 (4) Any person who owns, operates, or maintains an
27 unlicensed clinic due to a change in this part or a
28 modification in agency rules within 6 months after the
29 effective date of such change or modification and who, within
30 10 working days after receiving notification from the agency,
31 fails to cease operation or apply for a license under this
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1 part commits a felony of the third degree, punishable as
2 provided in s. 775.082, s. 775.083, or s. 775.084. Each day of
3 continued operation is a separate offense.
4 (5) Any clinic that fails to cease operation after
5 agency notification may be fined for each day of noncompliance
6 pursuant to this part.
7 (6) When a person has an interest in more than one
8 clinic, and fails to obtain a license for any one of these
9 clinics, the agency may revoke the license, impose a
10 moratorium, or impose a fine pursuant to this part on any or
11 all of the licensed clinics until such time as the unlicensed
12 clinic is licensed or ceases operation.
13 (7) Any person aware of the operation of an unlicensed
14 clinic must report that facility to the agency.
15 (8) Any health care provider who is aware of the
16 operation of an unlicensed clinic shall report that facility
17 to the agency. Failure to report a clinic that the provider
18 knows or has reasonable cause to suspect is unlicensed shall
19 be reported to the provider's licensing board.
20 (9) The agency may not issue a license to a clinic
21 that has any unpaid fines assessed under this part.
22 400.215 Clinic responsibilities.--
23 (1) Each clinic shall appoint a medical director or
24 clinic director who shall agree in writing to accept legal
25 responsibility for the following activities on behalf of the
26 clinic. The medical director or the clinic director shall:
27 (a) Have signs identifying the medical director or
28 clinic director posted in a conspicuous location within the
29 clinic readily visible to all patients.
30
31
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1 (b) Ensure that all practitioners providing health
2 care services or supplies to patients maintain a current
3 active and unencumbered Florida license.
4 (c) Review any patient referral contracts or
5 agreements executed by the clinic.
6 (d) Ensure that all health care practitioners at the
7 clinic have active appropriate certification or licensure for
8 the level of care being provided.
9 (e) Serve as the clinic records owner as defined in s.
10 456.057.
11 (f) Ensure compliance with the recordkeeping, office
12 surgery, and adverse incident reporting requirements of
13 chapter 456, the respective practice acts, and rules adopted
14 under this part.
15 (g) Conduct systematic reviews of clinic billings to
16 ensure that the billings are not fraudulent or unlawful. Upon
17 discovery of an unlawful charge, the medical director or
18 clinic director shall take immediate corrective action.
19 (2) Any business that becomes a clinic after
20 commencing operations must, within 5 days after becoming a
21 clinic, file a license application under this part and shall
22 be subject to all provisions of this part applicable to a
23 clinic.
24 (3) Any contract to serve as a medical director or a
25 clinic director entered into or renewed by a physician or a
26 licensed health care practitioner in violation of this part is
27 void as contrary to public policy. This subsection shall apply
28 to contracts entered into or renewed on or after March 1,
29 2004.
30 (4) All charges or reimbursement claims made by or on
31 behalf of a clinic that is required to be licensed under this
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1 part, but that is not so licensed, or that is otherwise
2 operating in violation of this part, are unlawful charges, and
3 therefore are noncompensable and unenforceable.
4 (5) Any person establishing, operating, or managing an
5 unlicensed clinic otherwise required to be licensed under this
6 part, or any person who knowingly files a false or misleading
7 license application or license renewal application, or false
8 or misleading information related to such application or
9 department rule, commits a felony of the third degree,
10 punishable as provided in s. 775.082, s. 775.083, or s.
11 775.084.
12 (6) Any licensed health care provider who violates
13 this part is subject to discipline in accordance with this
14 chapter and his or her respective practice act.
15 (7) The agency may fine, or suspend or revoke the
16 license of, any clinic licensed under this part for operating
17 in violation of the requirements of this part or the rules
18 adopted by the agency.
19 (8) The agency shall investigate allegations of
20 noncompliance with this part and the rules adopted under this
21 part.
22 (9) Any person or entity providing health care
23 services which is not a clinic, as defined under s. 400.203,
24 may voluntarily apply for licensure under its exempt status
25 with the agency on a form that sets forth its name or names
26 and addresses, a statement of the reasons why it cannot be
27 defined as a clinic, and other information deemed necessary by
28 the agency.
29 (10) The clinic shall display its license in a
30 conspicuous location within the clinic readily visible to all
31 patients.
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1 (11) Each clinic engaged in magnetic resonance imaging
2 services must be accredited by the Joint Commission on
3 Accreditation of Healthcare Organizations, the American
4 College of Radiology, or the Accreditation Association for
5 Ambulatory Health Care, within 1 year after licensure.
6 400.217 Injunctions.--
7 (1) The agency may institute injunctive proceedings in
8 a court of competent jurisdiction in order to:
9 (a) Enforce the provisions of this part or any minimum
10 standard, rule, or order issued or entered into pursuant to
11 this part if the attempt by the agency to correct a violation
12 through administrative fines has failed; if the violation
13 materially affects the health, safety, or welfare of clinic
14 patients; or if the violation involves any operation of an
15 unlicensed clinic.
16 (b) Terminate the operation of a clinic if a violation
17 of any provision of this part, or any rule adopted pursuant to
18 this part, materially affects the health, safety, or welfare
19 of clinic patients.
20 (2) Such injunctive relief may be temporary or
21 permanent.
22 (3) If action is necessary to protect clinic patients
23 from life-threatening situations, the court may allow a
24 temporary injunction without bond upon proper proof being
25 made. If it appears by competent evidence or a sworn,
26 substantiated affidavit that a temporary injunction should
27 issue, the court, pending the determination on final hearing,
28 shall enjoin operation of the clinic.
29 400.119 Agency actions.--Administrative proceedings
30 challenging agency licensure enforcement action shall be
31
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1 reviewed on the basis of the facts and conditions that
2 resulted in the agency action.
3 400.221 Agency administrative penalties.--
4 (1) The agency may impose administrative penalties
5 against clinics of up to $5,000 per violation for violations
6 of the requirements of this part. In determining if a penalty
7 is to be imposed and in fixing the amount of the fine, the
8 agency shall consider the following factors:
9 (a) The gravity of the violation, including the
10 probability that death or serious physical or emotional harm
11 to a patient will result or has resulted, the severity of the
12 action or potential harm, and the extent to which the
13 provisions of the applicable laws or rules were violated.
14 (b) Actions taken by the owner, medical director, or
15 clinic director to correct violations.
16 (c) Any previous violations.
17 (d) The financial benefit to the clinic of committing
18 or continuing the violation.
19 (2) Each day of continuing violation after the date
20 fixed for termination of the violation, as ordered by the
21 agency, constitutes an additional, separate, and distinct
22 violation.
23 (3) Any action taken to correct a violation shall be
24 documented in writing by the owner, medical director, or
25 clinic director of the clinic and verified through followup
26 visits by agency personnel. The agency may impose a fine and,
27 in the case of an owner-operated clinic, revoke or deny a
28 clinic's license when a clinic medical director or clinic
29 director fraudulently misrepresents actions taken to correct a
30 violation.
31
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1 (4) For fines that are upheld following administrative
2 or judicial review, the violator shall pay the fine, plus
3 interest at the rate as specified in s. 55.03, for each day
4 beyond the date set by the agency for payment of the fine.
5 (5) Any unlicensed clinic that continues to operate
6 after agency notification is subject to a $1,000 fine per day.
7 (6) Any licensed clinic whose owner, medical director,
8 or clinic director concurrently operates an unlicensed clinic
9 shall be subject to an administrative fine of $5,000 per day.
10 (7) Any clinic whose owner fails to apply for a
11 change-of-ownership license in accordance with s. 400.209 and
12 operates the clinic under the new ownership is subject to a
13 fine of $5,000.
14 (8) The agency, as an alternative to or in conjunction
15 with an administrative action against a clinic for violations
16 of this part and adopted rules, shall make a reasonable
17 attempt to discuss each violation and recommended corrective
18 action with the owner, medical director, or clinic director of
19 the clinic, prior to written notification. The agency, instead
20 of fixing a period within which the clinic shall enter into
21 compliance with standards, may request a plan of corrective
22 action from the clinic which demonstrates a good-faith effort
23 to remedy each violation by a specific date, subject to the
24 approval of the agency.
25 (9) Administrative fines paid by any clinic under this
26 section shall be deposited into the Health Care Trust Fund.
27 Section 5. Paragraph (b) of subsection (1) of section
28 456.0375, Florida Statutes, is amended to read:
29 456.0375 Registration of certain clinics;
30 requirements; discipline; exemptions.--
31 (1)
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1 (b) For purposes of this section, the term "clinic"
2 does not include and the registration requirements herein do
3 not apply to:
4 1. Entities licensed or registered by the state
5 pursuant to chapter 390, chapter 394, chapter 395, chapter
6 397, chapter 400, chapter 463, chapter 465, chapter 466,
7 chapter 478, chapter 480, or chapter 484.
8 2. Entities that own, directly or indirectly, entities
9 licensed or registered by the state pursuant to chapter 390,
10 chapter 394, chapter 395, chapter 397, chapter 400, chapter
11 463, chapter 465, chapter 466, chapter 478, chapter 480, or
12 chapter 484.
13 3. Entities that are owned, directly or indirectly, by
14 an entity licensed or registered by the state pursuant to
15 chapter 390, chapter 394, chapter 395, chapter 397, chapter
16 400, chapter 463, chapter 465, chapter 466, chapter 478,
17 chapter 480, or chapter 484.
18 4. Entities that are under common ownership, directly
19 or indirectly, with an entity licensed or registered by the
20 state pursuant to chapter 390, chapter 394, chapter 395,
21 chapter 397, chapter 400, chapter 463, chapter 465, chapter
22 466, chapter 478, chapter 480, or chapter 484.
23 5.2. Entities exempt from federal taxation under 26
24 U.S.C. s. 501(c)(3).
25 6.3. Sole proprietorships, group practices,
26 partnerships, or corporations that provide health care
27 services by licensed health care practitioners pursuant to
28 chapters 457, 458, 459, 460, 461, 462, 463, 466, 467, 484,
29 486, 490, 491, or part I, part III, part X, part XIII, or part
30 XIV of chapter 468, or s. 464.012, which are wholly owned by
31 licensed health care practitioners or the licensed health care
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1 practitioner and the spouse, parent, or child of a licensed
2 health care practitioner, so long as one of the owners who is
3 a licensed health care practitioner is supervising the
4 services performed therein and is legally responsible for the
5 entity's compliance with all federal and state laws. However,
6 no health care practitioner may supervise services beyond the
7 scope of the practitioner's license.
8 Section 6. Paragraphs (dd) and (ee) are added to
9 subsection (1) of section 456.072, Florida Statutes, to read:
10 456.072 Grounds for discipline; penalties;
11 enforcement.--
12 (1) The following acts shall constitute grounds for
13 which the disciplinary actions specified in subsection (2) may
14 be taken:
15 (dd) With respect to making a personal injury
16 protection claim as required by s. 627.736, intentionally
17 submitting a claim, statement, or bill that has been upcoded.
18 "Upcoding" means an action that submits a billing code that
19 would result in payment greater in amount than would be paid
20 using a billing code that accurately describes the services
21 performed.
22 (ee) With respect to making a personal injury
23 protection claim as required by s. 627.736, intentionally
24 submitting a claim, statement, or bill for payment of services
25 that were not rendered.
26 Section 7. Subsection (11) of section 626.7451,
27 Florida Statutes, is amended to read:
28 626.7451 Managing general agents; required contract
29 provisions.--No person acting in the capacity of a managing
30 general agent shall place business with an insurer unless
31 there is in force a written contract between the parties which
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1 sets forth the responsibility for a particular function,
2 specifies the division of responsibilities, and contains the
3 following minimum provisions:
4 (11) A licensed managing general agent, when placing
5 business with an insurer under this code, may charge a
6 per-policy fee not to exceed $40 $25. In no instance shall
7 the aggregate of per-policy fees for a placement of business
8 authorized under this section, when combined with any other
9 per-policy fee charged by the insurer, result in per-policy
10 fees which exceed the aggregate amount of $40 $25. The
11 per-policy fee shall be a component of the insurer's rate
12 filing and shall be fully earned. A managing general agent
13 that collects a per-policy fee on behalf of an insurer shall
14 remit a minimum of $5 per policy to the insurer for the
15 funding of a Special Investigations Unit which shall be
16 dedicated to the prevention of motor vehicle insurance fraud,
17 $5 per policy to the Division of Insurance Fraud of the
18 Department of Financial Services which shall be dedicated to
19 the prevention and detection of motor vehicle insurance fraud,
20 and $5 per policy to the Office of Statewide Prosecution which
21 shall be dedicated to the prosecution of motor vehicle
22 insurance fraud. Any insurer that writes directly without a
23 managing general agent and that charges a per-policy fee shall
24 charge an additional $5 per policy to fund its Special
25 Investigations Unit which shall be dedicated to the prevention
26 of motor vehicle insurance fraud, $5 per policy to the
27 Division of Insurance Fraud of the Department of Financial
28 Services which shall be dedicated to the prevention and
29 detection of motor vehicle insurance fraud, and $5 per policy
30 to the Office of Statewide Prosecution which shall be
31 dedicated to the prosecution of motor vehicle insurance fraud.
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1
2 For the purposes of this section and ss. 626.7453 and
3 626.7454, the term "controlling person" or "controlling" has
4 the meaning set forth in s. 625.012(5)(b)1., and the term
5 "controlled person" or "controlled" has the meaning set forth
6 in s. 625.012(5)(b)2.
7 Section 8. Subsection (1) of section 627.732, Florida
8 Statutes, is amended, and subsections (8) through (19) are
9 added to that section, to read:
10 627.732 Definitions.--As used in ss. 627.730-627.7405,
11 the term:
12 (1) "Broker" means any person not possessing a license
13 under chapter 395, chapter 400, chapter 458, chapter 459,
14 chapter 460, chapter 461, or chapter 641 who charges or
15 receives compensation for any use of medical equipment and is
16 not the 100-percent owner or the 100-percent lessee of such
17 equipment. For purposes of this section, such owner or lessee
18 may be an individual, a corporation, a partnership, or any
19 other entity and any of its 100-percent-owned affiliates and
20 subsidiaries. For purposes of this subsection, the term
21 "lessee" means a long-term lessee under a capital or operating
22 lease, but does not include a part-time lessee. The term
23 "broker" does not include a hospital or physician management
24 company whose medical equipment is ancillary to the practices
25 managed, a debt collection agency, or an entity that has
26 contracted with the insurer to obtain a discounted rate for
27 such services; nor does the term include a management company
28 that has contracted to provide general management services for
29 a licensed physician or health care facility and whose
30 compensation is not materially affected by the usage or
31 frequency of usage of medical equipment or an entity that is
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1 100-percent owned by one or more hospitals or physicians. The
2 term "broker" does not include a person or entity that
3 certifies, upon request of an insurer, that:
4 (a) It is a clinic registered under s. 456.0375;
5 (b) It is a 100-percent owner of medical equipment;
6 and
7 (c) The owner's only part-time lease of medical
8 equipment for personal injury protection patients is on a
9 temporary basis not to exceed 30 days in a 12-month period,
10 and such lease is solely for the purposes of necessary repair
11 or maintenance of the 100-percent-owned medical equipment, or
12 for patients for whom, because of physical size or
13 claustrophobia, it is determined by the medical director or
14 clinical director to be medically necessary that the test be
15 performed in medical equipment that is open-style. The leased
16 medical equipment cannot be used by patients who are not
17 patients of the registered clinic for medical treatment of
18 services. Any person or entity making a false certification
19 under this subsection commits insurance fraud as defined in s.
20 817.234. However, the 30-day period provided in this paragraph
21 may be extended for an additional 60 days as applicable to
22 magnetic resonance imaging equipment if the owner certifies
23 that the extension otherwise complies with this paragraph.
24 (8) "Certify" means to swear or attest to being true
25 or represented in writing.
26 (9) "Countersigned" means a second or verifying
27 signature, as on a previously signed document, and is not
28 satisfied by the statement "signature on file" or any similar
29 statement.
30 (10) "Immediate personal supervision," as it relates
31 to the performance of medical services by nonphysicians not in
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1 a hospital, means that an individual licensed to perform the
2 medical service or provide the medical supplies must be
3 present within the confines of the physical structure where
4 the medical services are performed or where the medical
5 supplies are provided such that the licensed individual can
6 physically see the activities of all employees and respond
7 immediately to any emergencies if needed.
8 (11) "Incident," with respect to services considered
9 as incident to a physician's professional service, for a
10 physician licensed under chapter 458, chapter 459, chapter
11 460, or chapter 461, if not furnished in a hospital, means
12 such services must be rendered under the physician's immediate
13 personal supervision by his or her employee; must be an
14 integral, even if incidental, part of a covered physician's
15 service; must be a service commonly furnished in a physician's
16 office; and must be medically necessary.
17 (12) "Knowingly" means that a person, with respect to
18 information, has actual knowledge of the information; acts in
19 deliberate ignorance of the truth or falsity of the
20 information; or acts in reckless disregard of the information,
21 and proof of specific intent to defraud is not required.
22 (13) "Lawful" or "lawfully" means in compliance with
23 all applicable criminal, civil, and administrative
24 requirements of state and federal law related to the provision
25 of medical services or treatment.
26 (14) "Hospital" means a facility that, at the time
27 services or treatment were rendered, was licensed under
28 chapter 395.
29 (15) "Properly completed" means providing truthful,
30 complete, and accurate responses to each applicable request
31 for information or statement by a means that may lawfully be
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1 provided and that complies with this section, or as agreed by
2 the parties.
3 (16) "Render," with respect to the license required in
4 the performance of medical services or treatment, means to
5 have properly licensed personnel actually physically perform
6 the medical service or physically transfer the supplies to the
7 insured incident to the provider's professional services. The
8 term does not include scheduling medical services or ordering
9 medical supplies for the insured.
10 (17) "Upcoding" means an action that submits a billing
11 code that would result in payment greater in amount than would
12 be paid using a billing code that accurately describes the
13 services performed.
14 (18) "Unbundling" means an action that submits a
15 billing code that is properly billed under one billing code,
16 but that has been separated into two or more billing codes,
17 and would result in payment greater in amount than would be
18 paid using one billing code.
19 (19) Otherwise lawful billing of magnetic resonance
20 imaging services in accordance with the limitations specified
21 in this section which combine all components of service into a
22 "global bill" is not prohibited when provided and billed by a
23 magnetic resonance imaging facility that has performed the
24 technical component and has also provided the professional
25 component, through either an employee or an independent
26 contractor, of the service being billed, so long as the person
27 ordering or prescribing the services has no financial interest
28 in the facility providing the service and receives no
29 consideration from anyone, other than the patient and the
30 insurer, for ordering or prescribing such service. The payment
31 of such global bill by an insurer shall constitute full
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1 payment of all components, including technical and
2 professional components, of the billed service.
3 Section 9. Subsections (3), (4), (5), (6), (7), (8),
4 (10), (11), and (12) of section 627.736, Florida Statutes, are
5 amended to read:
6 627.736 Required personal injury protection benefits;
7 exclusions; priority; claims.--
8 (3) INSURED'S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN
9 TORT CLAIMS.--No insurer shall have a lien on any recovery in
10 tort by judgment, settlement, or otherwise for personal injury
11 protection benefits, whether suit has been filed or settlement
12 has been reached without suit. An injured party who is
13 entitled to bring suit under the provisions of ss.
14 627.730-627.7405, or his or her legal representative, shall
15 have no right to recover any damages for which personal injury
16 protection benefits are paid or payable. The plaintiff may
17 prove all of his or her special damages notwithstanding this
18 limitation, but if special damages are introduced in evidence,
19 the trier of facts, whether judge or jury, shall not award
20 damages for personal injury protection benefits paid or
21 payable. In all cases in which a jury is required to fix
22 damages, the court shall instruct the jury that the plaintiff
23 shall not recover such special damages for personal injury
24 protection benefits paid or payable.
25 (4) BENEFITS; WHEN DUE.--Benefits due from an insurer
26 under ss. 627.730-627.7405 shall be primary, except that
27 benefits received under any workers' compensation law shall be
28 credited against the benefits provided by subsection (1) and
29 shall be due and payable as loss accrues, upon receipt of
30 reasonable proof of such loss and the amount of expenses and
31 loss incurred which are covered by the policy issued under ss.
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1 627.730-627.7405. When the Agency for Health Care
2 Administration provides, pays, or becomes liable for medical
3 assistance under the Medicaid program related to injury,
4 sickness, disease, or death arising out of the ownership,
5 maintenance, or use of a motor vehicle, benefits under ss.
6 627.730-627.7405 shall be subject to the provisions of the
7 Medicaid program.
8 (a) An insurer may require written notice to be given
9 as soon as practicable after an accident involving a motor
10 vehicle with respect to which the policy affords the security
11 required by ss. 627.730-627.7405.
12 (b) Personal injury protection insurance benefits paid
13 pursuant to this section shall be overdue if not paid within
14 30 days after the insurer is furnished written notice of the
15 fact of a covered loss and of the amount of same. Written
16 notice for medical benefits, except for services or treatment
17 rendered in a hospital, shall not be considered to have been
18 provided to the insurer unless all the requirements of
19 paragraphs (5)(e) and (f) are met and all of the medical
20 treatment records applicable to the billing for which payment
21 is being requested have been provided to the insurer, to the
22 extent requested by the insurer pursuant to subsection (6). If
23 such written notice is not furnished to the insurer as to the
24 entire claim, any partial amount supported by written notice
25 is overdue if not paid within 30 days after such written
26 notice is furnished to the insurer. Any part or all of the
27 remainder of the claim that is subsequently supported by
28 written notice is overdue if not paid within 30 days after
29 such written notice is furnished to the insurer. When an
30 insurer pays only a portion of a claim or rejects a claim, the
31 insurer shall provide at the time of the partial payment or
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1 rejection an itemized specification of each item that the
2 insurer had reduced, omitted, or declined to pay and any
3 information that the insurer desires the claimant to consider
4 related to the medical necessity of the denied treatment or to
5 explain the reasonableness of the reduced charge, provided
6 that this shall not limit the introduction of evidence at
7 trial; and the insurer shall include the name and address of
8 the person to whom the claimant should respond and a claim
9 number to be referenced in future correspondence. However,
10 notwithstanding the fact that written notice has been
11 furnished to the insurer, any payment shall not be deemed
12 overdue when the insurer has reasonable proof to establish
13 that the insurer is not responsible for the payment. For the
14 purpose of calculating the extent to which any benefits are
15 overdue, payment shall be treated as being made on the date a
16 draft or other valid instrument which is equivalent to payment
17 was placed in the United States mail in a properly addressed,
18 postpaid envelope or, if not so posted, on the date of
19 delivery. This paragraph does not preclude or limit the
20 ability of the insurer to assert that the claim was unrelated,
21 was not medically necessary, or was unreasonable or that the
22 amount of the charge was in excess of that permitted under, or
23 in violation of, subsection (5). Such assertion by the insurer
24 may be made at any time, including after payment of the claim
25 or after the 30-day time period for payment set forth in this
26 paragraph.
27 (c) All overdue payments shall bear simple interest at
28 the rate established by the Comptroller under s. 55.03 or the
29 rate established in the insurance contract, whichever is
30 greater, for the year in which the payment became overdue,
31 calculated from the date the insurer was furnished with
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1 written notice of the amount of covered loss. Interest shall
2 be due at the time payment of the overdue claim is made.
3 (d) The insurer of the owner of a motor vehicle shall
4 pay personal injury protection benefits for:
5 1. Accidental bodily injury sustained in this state by
6 the owner while occupying a motor vehicle, or while not an
7 occupant of a self-propelled vehicle if the injury is caused
8 by physical contact with a motor vehicle.
9 2. Accidental bodily injury sustained outside this
10 state, but within the United States of America or its
11 territories or possessions or Canada, by the owner while
12 occupying the owner's motor vehicle.
13 3. Accidental bodily injury sustained by a relative of
14 the owner residing in the same household, under the
15 circumstances described in subparagraph 1. or subparagraph 2.,
16 provided the relative at the time of the accident is domiciled
17 in the owner's household and is not himself or herself the
18 owner of a motor vehicle with respect to which security is
19 required under ss. 627.730-627.7405.
20 4. Accidental bodily injury sustained in this state by
21 any other person while occupying the owner's motor vehicle or,
22 if a resident of this state, while not an occupant of a
23 self-propelled vehicle, if the injury is caused by physical
24 contact with such motor vehicle, provided the injured person
25 is not himself or herself:
26 a. The owner of a motor vehicle with respect to which
27 security is required under ss. 627.730-627.7405; or
28 b. Entitled to personal injury benefits from the
29 insurer of the owner or owners of such a motor vehicle.
30 (e) If two or more insurers are liable to pay personal
31 injury protection benefits for the same injury to any one
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1 person, the maximum payable shall be as specified in
2 subsection (1), and any insurer paying the benefits shall be
3 entitled to recover from each of the other insurers an
4 equitable pro rata share of the benefits paid and expenses
5 incurred in processing the claim.
6 (f) It is a violation of the insurance code for an
7 insurer to fail to timely provide benefits as required by this
8 section with such frequency as to constitute a general
9 business practice.
10 (g) Benefits shall not be due or payable to or on the
11 behalf of an insured person if that person has committed, by a
12 material act or omission, any insurance fraud relating to
13 personal injury protection coverage under his or her policy,
14 if the fraud is admitted to in a sworn statement by the
15 insured or if it is established in a court of competent
16 jurisdiction. Any insurance fraud shall void all coverage
17 arising from the claim related to such fraud under the
18 personal injury protection coverage of the insured person who
19 committed the fraud, irrespective of whether a portion of the
20 insured person's claim may be legitimate, and any benefits
21 paid prior to the discovery of the insured person's insurance
22 fraud shall be recoverable by the insurer from the person who
23 committed insurance fraud in their entirety. An insurer is
24 entitled to its costs and attorney's fees in any action in
25 which it prevails in enforcing its right of recovery under
26 this paragraph.
27 (5) CHARGES FOR TREATMENT OF INJURED PERSONS.--
28 (a) Any physician, hospital, clinic, or other person
29 or institution lawfully rendering treatment to an injured
30 person for a bodily injury covered by personal injury
31 protection insurance may charge the insurer and injured party
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1 only a reasonable amount pursuant to this section for the
2 services and supplies rendered, and the insurer providing such
3 coverage may pay for such charges directly to such person or
4 institution lawfully rendering such treatment, if the insured
5 receiving such treatment or his or her guardian has
6 countersigned the properly completed invoice, bill, or claim
7 form approved by the Department of Insurance upon which such
8 charges are to be paid for as having actually been rendered,
9 to the best knowledge of the insured or his or her guardian.
10 In no event, however, may such a charge be in excess of the
11 amount the person or institution customarily charges for like
12 services or supplies or has agreed to accept or intends to
13 collect as full reimbursement from the particular patient in
14 cases involving no insurance.
15 (b)1. An insurer or insured is not required to pay a
16 claim or charges:
17 a. Made by a broker or by a person making a claim on
18 behalf of a broker;.
19 b. For any service or treatment that was not lawful at
20 the time rendered;
21 c. To any person who knowingly submits a false or
22 misleading statement relating to the claim or charges;
23 d. With respect to a bill or statement that does not
24 meet the applicable requirements of paragraph (e);
25 e. For any treatment or service that is upcoded, or
26 that is unbundled when such treatment or services should be
27 bundled, in accordance with applicable billing standards. To
28 facilitate prompt payment of lawful services, an insurer may
29 change codes that it determines to have been improperly or
30 incorrectly upcoded or unbundled, and may make payment based
31 on the changed codes, without affecting the right of the
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1 provider to dispute the change by the insurer, provided that
2 before doing so, the insurer must contact the health care
3 provider and discuss the reasons for the insurer's change and
4 the health care provider's reason for the coding, or make a
5 reasonable good-faith effort to do so, as documented in the
6 insurer's file;
7 f. For medical services or treatment billed by a
8 physician and not provided in a hospital unless such services
9 are rendered by the physician or are incident to his or her
10 professional services and are included on the physician's
11 bill, including documentation verifying that the physician is
12 responsible for the medical services that were rendered and
13 billed; and
14 g. For magnetic resonance imaging services that are
15 provided by an entity that performs such services within a
16 moveable or nonmoveable trailer coach, vehicle, or a trailer,
17 unless such services were provided during the 30-day or 90-day
18 period provided in s. 627.732(1)(c) and in compliance with
19 that paragraph.
20 2. Charges for the professional and technical services
21 of medically necessary cephalic thermograms, peripheral
22 thermograms, spinal ultrasounds, extremity ultrasounds, video
23 fluoroscopy (including, but not limited to, cineratiography,
24 or motion X ray), range of motion testing, muscle strength
25 testing, functional capacity testing, and surface
26 electromyography shall not exceed the maximum reimbursement
27 allowance for such procedures as set forth in the applicable
28 fee schedule or other payment methodology established pursuant
29 to s. 440.13 and in effect for the date on which the services
30 were rendered. Such charges shall not be payable by the
31
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1 insurer or insured if there is no reimbursement allowance
2 established pursuant to s. 440.13.
3 3. Allowable amounts that may be charged to a personal
4 injury protection insurance insurer and insured for medically
5 necessary electrodiagnostic professional and technical
6 services nerve conduction testing when done in conjunction
7 with a needle electromyography procedure and both are
8 performed and billed solely by a physician licensed under
9 chapter 458, chapter 459, chapter 460, or chapter 461 who is
10 also certified by the American Board of Electrodiagnostic
11 Medicine or by a board recognized by the American Board of
12 Medical Specialties or the American Osteopathic Association or
13 who holds diplomate status with the American Chiropractic
14 Neurology Board or its predecessors shall not exceed 200
15 percent of the allowable amount under the participating
16 physician fee schedule of Medicare Part B for year 2001, and
17 in effect for June 19, 2001, for the area in which the
18 treatment was rendered, adjusted annually by an additional
19 amount equal to the medical Consumer Price Index for Florida.
20 Effective for services and treatment on or after October 1,
21 2003, allowable amounts that may be charged for services under
22 this subparagraph may not exceed the amount allowable under
23 paragraph (c).
24 4. Allowable amounts that may be charged to a personal
25 injury protection insurance insurer and insured for medically
26 necessary electrodiagnostic professional and technical
27 services nerve conduction testing that does not meet the
28 requirements of subparagraph 3. shall not exceed the
29 applicable fee schedule or other payment methodology
30 established pursuant to s. 440.13 and in effect on the date on
31 which the services were rendered. Such charges shall not be
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1 payable by the insurer or insured if there is no reimbursement
2 allowance established pursuant to s. 440.13. Effective for
3 services and treatment on or after October 1, 2003, allowable
4 amounts that may be charged for services under this
5 subparagraph may not exceed the amount allowable under
6 paragraph (c).
7 5. Effective for services and treatment rendered on or
8 after June 19, 2001, upon this act becoming a law and before
9 November 1, 2001, allowable amounts that may be charged to a
10 personal injury protection insurance insurer and insured for
11 magnetic resonance imaging services shall not exceed 200
12 percent of the allowable amount under Medicare Part B for year
13 2001, and in effect on June 19, 2001, for the area in which
14 the treatment was rendered. Beginning November 1, 2001,
15 allowable amounts that may be charged to a personal injury
16 protection insurance insurer and insured for magnetic
17 resonance imaging services shall not exceed 175 percent of the
18 allowable amount under Medicare Part B for year 2001, and in
19 effect on June 19, 2001, for the area in which the treatment
20 was rendered, adjusted annually by an additional amount equal
21 to the medical Consumer Price Index for Florida, except that
22 allowable amounts that may be charged to a personal injury
23 protection insurance insurer and insured for magnetic
24 resonance imaging services provided in facilities accredited
25 by the American College of Radiology or the Joint Commission
26 on Accreditation of Healthcare Organizations shall not exceed
27 200 percent of the allowable amount under Medicare Part B for
28 year 2001, for the area in which the treatment was rendered,
29 adjusted annually by an additional amount equal to the medical
30 Consumer Price Index for Florida. This subparagraph paragraph
31 does not apply to charges for magnetic resonance imaging
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1 services and electrodiagnostic professional and technical
2 services nerve conduction testing for inpatients and emergency
3 services and care as defined in chapter 395 rendered by
4 facilities licensed under chapter 395. Effective for services
5 and treatment on or after October 1. 2003, allowable amounts
6 that may be charged for services under this subparagraph may
7 not exceed the amount allowable under paragraph (c).
8 6. The Department of Health, in consultation with the
9 appropriate professional licensing boards, shall adopt, by
10 rule, a list of diagnostic tests deemed not be medically
11 necessary for use in the treatment of persons sustaining
12 bodily injury covered by personal injury protection benefits
13 under this section. The initial list shall be adopted by
14 January 1, 2004, and shall be revised from time to time as
15 determined by the Department of Health, in consultation with
16 the respective professional licensing boards. Inclusion of a
17 test on the list of invalid diagnostic tests shall be based on
18 lack of demonstrated medical value and a level of general
19 acceptance by the relevant provider community and shall not be
20 dependent for results entirely upon subjective patient
21 response. Notwithstanding its inclusion on a fee schedule in
22 this subsection, an insurer or insured is not required to pay
23 any charges or reimburse claims for any invalid diagnostic
24 test as determined by the Department of Health.
25 7. The Department of Health, in consultation with the
26 appropriate professional licensing boards, shall adopt, by
27 rule, medical utilization guidelines for the treatment of
28 persons sustaining neck and back injuries covered by personal
29 injury protection benefits under this section. Such guidelines
30 shall assure appropriate patient care and shall be presumed to
31 be correct and appropriate in cases to which the guidelines
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1 apply. The utilization guidelines, which shall not apply to
2 services or treatments rendered by a hospital, shall be
3 adopted by March 1, 2004, and shall be revised from time to
4 time as determined by the Department of Health in consultation
5 with the appropriate professional licensing boards.
6 (c) Except as provided in paragraph (b), effective for
7 services and treatment beginning on October 1, 2003, other
8 than services and treatment rendered by a hospital:
9 1. A person or institution providing treatment,
10 accommodations, products, or services to an injured person for
11 an injury covered by personal injury protection benefits shall
12 not require, request, charge, bill, or accept payment for the
13 treatment, accommodations, products, or services from the
14 insurer or insured in excess of 200 percent of the allowable
15 amount under the Medicare Part B Participating Physicians Fee
16 Schedule which is in effect for the area in which the services
17 are rendered. If it is judicially determined to be
18 unconstitutional for the Legislature to incorporate, for
19 purposes of this section, changes to the Medicare fee schedule
20 after October 1, 2003, the Medicare fee schedule shall be
21 adjusted annually by an additional amount equal to the prior
22 year's annual Medical Care Item of the Consumer Price Index
23 for All Urban Consumers in the South Region as determined by
24 the Bureau of Labor Statistics of the United States Department
25 of Labor.
26 2. If a charge has not been calculated under
27 subparagraph 1., the amount of the charge may not exceed the
28 applicable fee schedule or other payment established pursuant
29 to s. 440.13 in effect on the date the services were rendered.
30 3. If a charge has not been calculated under
31 subparagraph 1., or subparagraph 2., the treatment,
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1 accommodation, product, or services is presumed to be not
2 reasonable and not reimbursable by the insurer and insured
3 pursuant to this section.
4 4. Allowable amounts that may be charged to a personal
5 injury protection insurance insurer and insured for magnetic
6 resonance imaging services provided in facilities accredited
7 by the American College of Radiology, the Accreditation
8 Association for Ambulatory Health Care, or the Joint
9 Commission on Accreditation of Healthcare Organizations may
10 not exceed 225 percent of the allowable amount under the
11 Medicare Part B Participating Physician Fee Schedule which is
12 in effect on the date the services are rendered for the area
13 in which the services are rendered.
14 5. If treatment is rendered out of state, the
15 allowable amounts shall be for the area where the insured
16 resides in this state.
17 (d)1.(c) With respect to any treatment or service,
18 other than medical services billed by a hospital or other
19 provider for emergency services as defined in s. 395.002 or
20 inpatient services rendered at a hospital-owned facility, the
21 statement of charges must be furnished to the insurer by the
22 provider and may not include, and the insurer is not required
23 to pay, charges for treatment or services rendered more than
24 35 days before the postmark date of the statement, except for
25 past due amounts previously billed on a timely basis under
26 this paragraph, and except that, if the provider submits to
27 the insurer a notice of initiation of treatment within 21 days
28 after its first examination or treatment of the claimant, the
29 statement may include charges for treatment or services
30 rendered up to, but not more than, 75 days before the postmark
31 date of the statement. The injured party is not liable for,
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1 and the provider shall not bill the injured party for, charges
2 that are unpaid because of the provider's failure to comply
3 with this paragraph. Any agreement requiring the injured
4 person or insured to pay for such charges is unenforceable.
5 2. If, however, the insured fails to furnish the
6 provider with the correct name and address of the insured's
7 personal injury protection insurer, the provider has 35 days
8 from the date the provider obtains the correct information to
9 furnish the insurer with a statement of the charges. The
10 insurer is not required to pay for such charges unless the
11 provider includes with the statement documentary evidence that
12 was provided by the insured during the 35-day period
13 demonstrating that the provider reasonably relied on erroneous
14 information from the insured and either:
15 a.1. A denial letter from the incorrect insurer; or
16 b.2. Proof of mailing, which may include an affidavit
17 under penalty of perjury, reflecting timely mailing to the
18 incorrect address or insurer.
19 3. For emergency services and care as defined in s.
20 395.002 rendered in a hospital emergency department or for
21 transport and treatment rendered by an ambulance provider
22 licensed pursuant to part III of chapter 401, the provider is
23 not required to furnish the statement of charges within the
24 time periods established by this paragraph; and the insurer
25 shall not be considered to have been furnished with notice of
26 the amount of covered loss for purposes of paragraph (4)(b)
27 until it receives a statement complying with paragraph (e), or
28 copy thereof, which specifically identifies the place of
29 service to be a hospital emergency department or an ambulance
30 in accordance with billing standards recognized by the Health
31 Care Finance Administration.
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1 4. Each notice of insured's rights under s. 627.7401
2 must include the following statement in type no smaller than
3 12 points:
4 BILLING REQUIREMENTS.--Florida Statutes provide
5 that with respect to any treatment or services,
6 other than certain hospital and emergency
7 services, the statement of charges furnished to
8 the insurer by the provider may not include,
9 and the insurer and the injured party are not
10 required to pay, charges for treatment or
11 services rendered more than 35 days before the
12 postmark date of the statement, except for past
13 due amounts previously billed on a timely
14 basis, and except that, if the provider submits
15 to the insurer a notice of initiation of
16 treatment within 21 days after its first
17 examination or treatment of the claimant, the
18 statement may include charges for treatment or
19 services rendered up to, but not more than, 75
20 days before the postmark date of the statement.
21 (d) Every insurer shall include a provision in its
22 policy for personal injury protection benefits for binding
23 arbitration of any claims dispute involving medical benefits
24 arising between the insurer and any person providing medical
25 services or supplies if that person has agreed to accept
26 assignment of personal injury protection benefits. The
27 provision shall specify that the provisions of chapter 682
28 relating to arbitration shall apply. The prevailing party
29 shall be entitled to attorney's fees and costs. For purposes
30 of the award of attorney's fees and costs, the prevailing
31 party shall be determined as follows:
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1 1. When the amount of personal injury protection
2 benefits determined by arbitration exceeds the sum of the
3 amount offered by the insurer at arbitration plus 50 percent
4 of the difference between the amount of the claim asserted by
5 the claimant at arbitration and the amount offered by the
6 insurer at arbitration, the claimant is the prevailing party.
7 2. When the amount of personal injury protection
8 benefits determined by arbitration is less than the sum of the
9 amount offered by the insurer at arbitration plus 50 percent
10 of the difference between the amount of the claim asserted by
11 the claimant at arbitration and the amount offered by the
12 insurer at arbitration, the insurer is the prevailing party.
13 3. When neither subparagraph 1. nor subparagraph 2.
14 applies, there is no prevailing party. For purposes of this
15 paragraph, the amount of the offer or claim at arbitration is
16 the amount of the last written offer or claim made at least 30
17 days prior to the arbitration.
18 4. In the demand for arbitration, the party requesting
19 arbitration must include a statement specifically identifying
20 the issues for arbitration for each examination or treatment
21 in dispute. The other party must subsequently issue a
22 statement specifying any other examinations or treatment and
23 any other issues that it intends to raise in the arbitration.
24 The parties may amend their statements up to 30 days prior to
25 arbitration, provided that arbitration shall be limited to
26 those identified issues and neither party may add additional
27 issues during arbitration.
28 (e) All statements and bills for medical services
29 rendered by any physician, hospital, clinic, or other person
30 or institution shall be submitted to the insurer on a properly
31 completed Centers for Medicare and Medicaid Services (CMS)
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1 Health Care Finance Administration 1500 form, UB 92 forms, or
2 any other standard form approved by the department for
3 purposes of this paragraph. All billings for such services
4 rendered by noninstitutional providers shall, to the extent
5 applicable, follow the Physicians' Current Procedural
6 Terminology (CPT) or Healthcare Correct Procedural Coding
7 System (HCPCS), or ICD-9 in effect for the year in which
8 services are rendered and comply with the Centers for Medicare
9 and Medicaid Services (CMS) 1500 form instructions and the
10 American Medical Association Current Procedural Terminology
11 (CPT) Editorial Panel and Healthcare Correct Procedural Coding
12 System (HCPCS). All noninstitutional providers shall include
13 on the applicable claim form the professional license number
14 of the provider in the line or space provided for "Signature
15 of Physician or Supplier, Including Degrees or Credentials."
16 In determining compliance with applicable CPT and HCPCS
17 coding, guidance shall be provided by the Physicians' Current
18 Procedural Terminology (CPT) or the Healthcare Correct
19 Procedural Coding System (HCPCS) in effect for the year in
20 which services were rendered, the Office of the Inspector
21 General (OIG), Physicians Compliance Guidelines, and other
22 authoritative treatises designated by rule by the Agency for
23 Health Care Administration. No statement of medical services
24 may include charges for medical services of a person or entity
25 that performed such services without possessing the valid
26 licenses required to perform such services. For purposes of
27 paragraph (4)(b), an insurer shall not be considered to have
28 been furnished with notice of the amount of covered loss or
29 medical bills due unless the statements or bills comply with
30 this paragraph, and unless the statements or bills are
31 properly completed in their entirety as to all material
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1 provisions, with all relevant information being provided
2 therein.
3 (f)1. Each physician, clinic, or other medical
4 institution, except for a hospital, providing medical services
5 upon which a claim for personal injury protection benefits is
6 based shall require an insured person to execute a disclosure
7 and acknowledgment form, which reflects at a minimum that:
8 a. The insured, or his or her guardian, must
9 countersign the form approved by the Financial Services
10 Commission attesting to the fact that the charges set forth
11 therein are for services that were actually rendered;
12 b. The insured, or his or her guardian, has both the
13 right and the affirmative duty to confirm that any charges are
14 for services actually rendered;
15 c. The insured, or his or her guardian, was not
16 solicited by any person to seek any services from the medical
17 provider; and
18 d. The medical provider rendering services for which
19 payment is being claimed has the affirmative duty to explain
20 the services rendered and the charges for those services to
21 the insured, or his or her guardian, so that the insured, or
22 his or her guardian, countersigns the form approved by the
23 commission with informed consent. This duty includes, but is
24 not limited to, explaining the CPT or HCPCS codes.
25 2. The Financial Services Commission shall adopt, by
26 rule, a standard disclosure and acknowledgment form that shall
27 be used to fulfill the requirements of this section.
28 3. The licensed medical professional rendering
29 treatment for which payment is being claimed must sign, by his
30 or her own hand, the form approved by the commission.
31
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1 4. The original completed disclosure and
2 acknowledgement form shall be furnished to the insurer
3 pursuant to paragraph (4)(b) and may not be electronically
4 furnished.
5 (g) Upon written notification by any person, an
6 insurer shall investigate any claim of improper billing by a
7 physician or other medical provider. The insurer shall
8 determine if the insured was properly billed for only those
9 services and treatments that the insured actually received. If
10 the insurer determines that the insured has been improperly
11 billed, the insurer shall notify the insured, the person
12 making the written notification and the provider of its
13 findings and shall reduce the amount of payment to the
14 provider by the amount determined to be improperly billed. If
15 a reduction is made due to such written notification by any
16 person, the insurer shall pay to the person 20 percent of the
17 amount of the reduction, up to $500. If the provider is
18 arrested due to the improper billing, then the insurer shall
19 pay to the person 40 percent of the amount of the reduction,
20 up to $500.
21 (h) An insurer may not systematically downcode with
22 the intent to deny reimbursement otherwise due. Such action
23 constitutes a material misrepresentation under s.
24 626.9541(1)(i)2.
25 (6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON;
26 DISPUTES.--
27 (a) Every employer shall, if a request is made by an
28 insurer providing personal injury protection benefits under
29 ss. 627.730-627.7405 against whom a claim has been made,
30 furnish forthwith, in a form approved by the department, a
31 sworn statement of the earnings, since the time of the bodily
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1 injury and for a reasonable period before the injury, of the
2 person upon whose injury the claim is based.
3 (b) Every physician, hospital, clinic, or other
4 medical institution providing, before or after bodily injury
5 upon which a claim for personal injury protection insurance
6 benefits is based, any products, services, or accommodations
7 in relation to that or any other injury, or in relation to a
8 condition claimed to be connected with that or any other
9 injury, shall, if requested to do so by the insurer against
10 whom the claim has been made, furnish forthwith a written
11 report of the history, condition, treatment, dates, and costs
12 of such treatment of the injured person and why the items
13 identified by the insurer were reasonable in amount and
14 medically necessary, together with a sworn statement that the
15 treatment or services rendered were reasonable and necessary
16 with respect to the bodily injury sustained and identifying
17 which portion of the expenses for such treatment or services
18 was incurred as a result of such bodily injury, and produce
19 forthwith, and permit the inspection and copying of, his or
20 her or its records regarding such history, condition,
21 treatment, dates, and costs of treatment; provided that this
22 shall not limit the introduction of evidence at trial. Such
23 sworn statement shall read as follows: "Under penalty of
24 perjury, I declare that I have read the foregoing, and the
25 facts alleged are true, to the best of my knowledge and
26 belief." No cause of action for violation of the
27 physician-patient privilege or invasion of the right of
28 privacy shall be permitted against any physician, hospital,
29 clinic, or other medical institution complying with the
30 provisions of this section. The person requesting such records
31 and such sworn statement shall pay all reasonable costs
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1 connected therewith. If an insurer makes a written request for
2 documentation or information under this paragraph within 30
3 days after having received notice of the amount of a covered
4 loss under paragraph (4)(a), the amount or the partial amount
5 which is the subject of the insurer's inquiry shall become
6 overdue if the insurer does not pay in accordance with
7 paragraph (4)(b) or within 10 days after the insurer's receipt
8 of the requested documentation or information, whichever
9 occurs later. For purposes of this paragraph, the term
10 "receipt" includes, but is not limited to, inspection and
11 copying pursuant to this paragraph. Any insurer that requests
12 documentation or information pertaining to reasonableness of
13 charges or medical necessity under this paragraph without a
14 reasonable basis for such requests as a general business
15 practice is engaging in an unfair trade practice under the
16 insurance code.
17 (c) In the event of any dispute regarding an insurer's
18 right to discovery of facts under this section about an
19 injured person's earnings or about his or her history,
20 condition, or treatment, or the dates and costs of such
21 treatment, the insurer may petition a court of competent
22 jurisdiction to enter an order permitting such discovery. The
23 order may be made only on motion for good cause shown and upon
24 notice to all persons having an interest, and it shall specify
25 the time, place, manner, conditions, and scope of the
26 discovery. Such court may, in order to protect against
27 annoyance, embarrassment, or oppression, as justice requires,
28 enter an order refusing discovery or specifying conditions of
29 discovery and may order payments of costs and expenses of the
30 proceeding, including reasonable fees for the appearance of
31 attorneys at the proceedings, as justice requires.
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1 (d) The injured person shall be furnished, upon
2 request, a copy of all information obtained by the insurer
3 under the provisions of this section, and shall pay a
4 reasonable charge, if required by the insurer.
5 (e) Notice to an insurer of the existence of a claim
6 shall not be unreasonably withheld by an insured.
7 (7) MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
8 REPORTS.--
9 (a) Whenever the mental or physical condition of an
10 injured person covered by personal injury protection is
11 material to any claim that has been or may be made for past or
12 future personal injury protection insurance benefits, such
13 person shall, upon the request of an insurer, submit to mental
14 or physical examination by a physician or physicians. The
15 costs of any examinations requested by an insurer shall be
16 borne entirely by the insurer. Such examination shall be
17 conducted within the municipality where the insured is
18 receiving treatment, or in a location reasonably accessible to
19 the insured, which, for purposes of this paragraph, means any
20 location within the municipality in which the insured resides,
21 or any location within 10 miles by road of the insured's
22 residence, provided such location is within the county in
23 which the insured resides. If the examination is to be
24 conducted in a location reasonably accessible to the insured,
25 and if there is no qualified physician to conduct the
26 examination in a location reasonably accessible to the
27 insured, then such examination shall be conducted in an area
28 of the closest proximity to the insured's residence. Personal
29 protection insurers are authorized to include reasonable
30 provisions in personal injury protection insurance policies
31 for mental and physical examination of those claiming personal
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1 injury protection insurance benefits. An insurer may not
2 withdraw payment of a treating physician without the consent
3 of the injured person covered by the personal injury
4 protection, unless the insurer first obtains a valid report by
5 a physician licensed under the same chapter as the treating
6 physician whose treatment authorization is sought to be
7 withdrawn, stating that treatment was not reasonable, related,
8 or necessary. A valid report is one that is prepared and
9 signed by the physician examining the injured person or
10 reviewing the treatment records of the injured person and is
11 factually supported by the examination and treatment records
12 if reviewed and that has not been modified by anyone other
13 than the physician. The physician preparing the report must be
14 in active practice, unless the physician is physically
15 disabled. Active practice means that during the 3 years
16 immediately preceding the date of the physical examination or
17 review of the treatment records the physician must have
18 devoted professional time to the active clinical practice of
19 evaluation, diagnosis, or treatment of medical conditions or
20 to the instruction of students in an accredited health
21 professional school or accredited residency program or a
22 clinical research program that is affiliated with an
23 accredited health professional school or teaching hospital or
24 accredited residency program. The physician preparing a report
25 at the request of an insurer, or on behalf of an insurer
26 through an attorney or another entity, shall maintain, for at
27 least 3 years, copies of all examination reports as medical
28 records and shall maintain, for at least 3 years, records of
29 all payments for the examinations and reports. Neither an
30 insurer nor any person acting at the direction of or on behalf
31 of an insurer may materially change an opinion in a report
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1 prepared under this paragraph or direct the physician
2 preparing the report to change such opinion. The denial of a
3 payment as the result of such a changed opinion constitutes a
4 material misrepresentation under s. 626.9541(1)(i)2.; however,
5 this provision does not preclude the insurer from calling to
6 the attention of the physician errors of fact in the report
7 based upon information in the claim file.
8 (b) If requested by the person examined, a party
9 causing an examination to be made shall deliver to him or her
10 a copy of every written report concerning the examination
11 rendered by an examining physician, at least one of which
12 reports must set out the examining physician's findings and
13 conclusions in detail. After such request and delivery, the
14 party causing the examination to be made is entitled, upon
15 request, to receive from the person examined every written
16 report available to him or her or his or her representative
17 concerning any examination, previously or thereafter made, of
18 the same mental or physical condition. By requesting and
19 obtaining a report of the examination so ordered, or by taking
20 the deposition of the examiner, the person examined waives any
21 privilege he or she may have, in relation to the claim for
22 benefits, regarding the testimony of every other person who
23 has examined, or may thereafter examine, him or her in respect
24 to the same mental or physical condition. If a person
25 unreasonably refuses to submit to an examination, the personal
26 injury protection carrier is no longer liable for subsequent
27 personal injury protection benefits.
28 (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
29 FEES.--With respect to any dispute under the provisions of ss.
30 627.730-627.7405 between the insured and the insurer, or
31 between an assignee of an insured's rights and the insurer,
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1 the provisions of s. 627.428 shall apply but shall be
2 conditioned and limited as provided in section 627.745, except
3 as provided in subsection (11).
4 (10)(a) An insurer may negotiate and enter into
5 contracts with licensed health care providers for the benefits
6 described in this section, referred to in this section as
7 "preferred providers," which shall include health care
8 providers licensed under chapters 458, 459, 460, 461, and 463.
9 The insurer may provide an option to an insured to use a
10 preferred provider at the time of purchase of the policy for
11 personal injury protection benefits, if the requirements of
12 this subsection are met. If the insured elects to use a
13 provider who is not a preferred provider, whether the insured
14 purchased a preferred provider policy or a nonpreferred
15 provider policy, the medical benefits provided by the insurer
16 shall be as required by this section. If the insured elects to
17 use a provider who is a preferred provider, the insurer may
18 pay medical benefits in excess of the benefits required by
19 this section and may waive or lower the amount of any
20 deductible that applies to such medical benefits. If the
21 insurer offers a preferred provider policy to a policyholder
22 or applicant, it must also offer a nonpreferred provider
23 policy. The insurer shall provide each policyholder with a
24 current roster of preferred providers in the county in which
25 the insured resides at the time of purchase of such policy,
26 and shall make such list available for public inspection
27 during regular business hours at the principal office of the
28 insurer within the state.
29 (b) Paragraph (a) does not prohibit an insurer that
30 chooses not to offer a preferred provider policy from
31 providing the benefits described in subsection (1) pursuant to
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1 a contract entered into directly or indirectly with a licensed
2 health care provider or hospital that establishes agreed
3 amounts to be charged by such health care provider or hospital
4 for services rendered to persons entitled to such benefits.
5 Such agreement shall establish the reasonable amount for such
6 services in accord with subsection (1).
7 (11) DEMAND LETTER.--
8 (a) As a condition precedent to filing any action for
9 an overdue claim for benefits under paragraph (4)(b), the
10 insurer must be provided with written notice of an intent to
11 initiate litigation; provided, however, that, except with
12 regard to a claim or amended claim or judgment for interest
13 only which was not paid or was incorrectly calculated, such
14 notice is not required for an overdue claim that the insurer
15 has denied or reduced, nor is such notice required if the
16 insurer has been provided documentation or information at the
17 insurer's request pursuant to subsection (6). Such notice may
18 not be sent until the claim is overdue, including any
19 additional time the insurer has to pay the claim pursuant to
20 paragraph (4)(b).
21 (b) The notice required shall state that it is a
22 "demand letter under s. 627.736(11)" and shall state with
23 specificity:
24 1. The name of the insured upon which such benefits
25 are being sought.
26 2. The claim number or policy number upon which such
27 claim was originally submitted to the insurer.
28 3. To the extent applicable, the name of any medical
29 provider who rendered to an insured the treatment, services,
30 accommodations, or supplies that form the basis of such claim;
31 and an itemized statement specifying each exact amount, the
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1 date of treatment, service, or accommodation, and the type of
2 benefit claimed to be due. A completed Health Care Finance
3 Administration 1500 form, UB 92, or successor forms approved
4 by the Secretary of the United States Department of Health and
5 Human Services may be used as the itemized statement.
6 (c) Each notice required by this section must be
7 delivered to the insurer by United States certified or
8 registered mail, return receipt requested. Such postal costs
9 shall be reimbursed by the insurer if so requested by the
10 provider in the notice, when the insurer pays the overdue
11 claim. Such notice must be sent to the person and address
12 specified by the insurer for the purposes of receiving notices
13 under this section, on the document denying or reducing the
14 amount asserted by the filer to be overdue. Each licensed
15 insurer, whether domestic, foreign, or alien, may file with
16 the department designation of the name and address of the
17 person to whom notices pursuant to this section shall be sent
18 when such document does not specify the name and address to
19 whom the notices under this section are to be sent or when
20 there is no such document. The name and address on file with
21 the department pursuant to s. 624.422 shall be deemed the
22 authorized representative to accept notice pursuant to this
23 section in the event no other designation has been made.
24 (d) If, within 7 business days after receipt of notice
25 by the insurer, the overdue claim specified in the notice is
26 paid by the insurer together with applicable interest and a
27 penalty of 10 percent of the overdue amount paid by the
28 insurer, subject to a maximum penalty of $250, no action for
29 nonpayment or late payment may be brought against the insurer.
30 To the extent the insurer determines not to pay the overdue
31 amount, the penalty shall not be payable in any action for
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1 nonpayment or late payment. For purposes of this subsection,
2 payment shall be treated as being made on the date a draft or
3 other valid instrument that is equivalent to payment is placed
4 in the United States mail in a properly addressed, postpaid
5 envelope, or if not so posted, on the date of delivery. The
6 insurer shall not be obligated to pay any attorney's fees if
7 the insurer pays the claim within the time prescribed by this
8 subsection.
9 (e) The applicable statute of limitation for an action
10 under this section shall be tolled for a period of 15 business
11 days by the mailing of the notice required by this subsection.
12 (f) Any insurer making a general business practice of
13 not paying valid claims until receipt of the notice required
14 by this section is engaging in an unfair trade practice under
15 the insurance code.
16 (11)(12) CIVIL ACTION FOR INSURANCE FRAUD.--
17 (a) An insurer shall have a cause of action against
18 any person convicted of, or who, regardless of adjudication of
19 guilt, pleads guilty or nolo contendere to insurance fraud
20 under s. 817.234, patient brokering under s. 817.505, or
21 kickbacks under s. 456.054, associated with a claim for
22 personal injury protection benefits in accordance with this
23 section. An insurer prevailing in an action brought under
24 this subsection may recover compensatory, consequential, and
25 punitive damages subject to the requirements and limitations
26 of part II of chapter 768, and attorney's fees and costs
27 incurred in litigating a cause of action against any person
28 convicted of, or who, regardless of adjudication of guilt,
29 pleads guilty or nolo contendere to insurance fraud under s.
30 817.234, patient brokering under s. 817.505, or kickbacks
31
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1 under s. 456.054, associated with a claim for personal injury
2 protection benefits in accordance with this section.
3 (b) Notwithstanding its payment, an insurer and
4 insured shall not be precluded from maintaining a civil cause
5 of action against any person or business entity to recover
6 payments for services later determined to have been unlawfully
7 rendered or otherwise in violation of any provision of this
8 section.
9 (12) If the Financial Services Commission determines
10 that the cost savings under personal injury protection
11 insurance benefits paid by insurers have been realized due to
12 the provisions of this act, prior legislative reforms, or
13 other factors, the commission may increase the minimum $10,000
14 benefit coverage requirement. In establishing the amount of
15 such increase, the commission must determine that the
16 additional premium for such coverage is approximately equal to
17 the premium cost savings that have been realized for the
18 personal injury protection coverage with limits of $10,000.
19 Section 10. Subsection (2) of section 627.739, Florida
20 Statutes, is amended to read:
21 627.739 Personal injury protection; optional
22 limitations; deductibles.--
23 (2) Insurers shall offer to each applicant and to each
24 policyholder, upon the renewal of an existing policy,
25 deductibles, in amounts of $250, $500, $1,000, and $2,000. The
26 deductible amount must be applied to 100 percent of the
27 expenses and losses described in s. 627.736. After the
28 deductible is met, each insured is eligible to receive up to
29 $10,000 in total benefits described in s. 627.736(1)., such
30 amount to be deducted from the benefits otherwise due each
31 person subject to the deduction. However, this subsection
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1 shall not be applied to reduce the amount of any benefits
2 received in accordance with s. 627.736(1)(c).
3 Section 11. Section 627.745, Florida Statutes, is
4 amended to read:
5 627.745 Demand letter; mediation of claims.--
6 (1) DEMAND LETTER.--
7 (a) As a condition precedent to filing any action for
8 personal injury protection benefits under s. 627.736, the
9 claimant must provide the insurer with written notice of an
10 intent to initiate litigation. Such notice may not be sent
11 until the claim is overdue, including any additional time the
12 insurer has to pay the claim pursuant to paragraph (4)(b) and
13 shall include all claims overdue at the time of the notice.
14 (b) The notice required shall state that it is a
15 "demand letter under s. 627.745" and shall state with
16 specificity:
17 1. The name of the insured for whom such benefits are
18 being sought including a copy of the assignment giving rights
19 to the claimant if the claimant is not the insured.
20 2. The claim number or policy number upon which such
21 claim was originally submitted to the insurer.
22 3. To the extent applicable, the name of any medical
23 provider who rendered to an insured the treatment, services,
24 accommodations, or supplies that form the basis of such claim;
25 and an itemized statement specifying each exact amount, the
26 date of treatment, service, or accommodation, and the type of
27 benefit claimed to be due. A properly completed form
28 satisfying the requirements of s. 627.736(5)(e) may be used as
29 the itemized statement.
30 (c) Each notice required by this section must be
31 delivered to the insurer by United States certified or
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1 registered mail, return receipt requested. Such postal costs
2 shall be reimbursed by the insurer if so requested by the
3 claimant in the notice, when the insurer pays the overdue
4 claim. Such notice must be sent to the person and address
5 specified by the insurer for the purposes of receiving notices
6 under this section. Each licensed insurer, whether domestic,
7 foreign, or alien, shall file with the department designation
8 of the name and address of the person to whom notices pursuant
9 to this section shall be sent which the department shall make
10 available on its Internet website. If no such document has
11 been filed with the department, the name and address on file
12 with the department pursuant to s. 624.422 shall be deemed the
13 authorized representative to accept notice pursuant to this
14 section.
15 (d) If, within 15 days after receipt of notice by the
16 insurer, the overdue claim specified in the notice is paid by
17 the insurer together with applicable interest and a penalty of
18 10 percent of the overdue amount paid by the insurer, subject
19 to a maximum penalty of $250, no action for nonpayment or late
20 payment may be brought against the insurer. To the extent the
21 insurer determines not to pay the overdue amount, the penalty
22 shall not be payable in any action for nonpayment or late
23 payment. For purposes of this subsection, payment shall be
24 treated as being made on the date a draft or other valid
25 instrument that is equivalent to payment is placed in the
26 United States mail in a properly addressed, postpaid envelope,
27 or if not so posted, on the date of delivery. The insurer
28 shall not be obligated to pay any attorney's fees if the
29 insurer pays the claim within the time prescribed by this
30 subsection.
31
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1 (e) The applicable statute of limitation for an action
2 under this section shall be tolled for a period of 15 business
3 days by the mailing of the notice required by this subsection.
4 (f) Any insurer making a general business practice of
5 not paying valid claims until receipt of the notice required
6 by this section is engaging in an unfair trade practice under
7 the insurance code.
8 (2)(1) Mediation.--
9 (a)1. In any claim filed with an insurer for personal
10 injury in an amount of $10,000 or less or any claim for
11 property damage in any amount, arising out of the ownership,
12 operation, use, or maintenance of a motor vehicle, either
13 party may request demand mediation of the claim prior to the
14 institution of litigation.
15 2. As to any claim for personal injury protection
16 benefits under s. 627.736, if the insurer does not pay the
17 amount demanded within 15 days after its receipt of the demand
18 letter referenced under subsection (1), either party may
19 request mediation of the claim. The insurer may file a request
20 for mediation only on or before the 15th day after receipt of
21 the demand letter. Mediation is optional and either party may
22 decline to participate.
23 (b) A request for mediation shall be filed with the
24 department on a form approved by the department. The request
25 for mediation shall state the reason for the request for
26 mediation and shall include and state all the issues in
27 dispute at the time of the request which are to be mediated.
28 The filing of a request for mediation tolls the applicable
29 time requirements for filing suit for a period of 60 days
30 following the conclusion of the mediation process or the time
31 prescribed in s. 95.11, whichever is later.
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1 (c) The insurance policy must specify in detail the
2 terms and conditions for mediation of a first-party claim.
3 This specification may include a reference incorporating the
4 terms of this section.
5 (d) The mediation shall be conducted as an informal
6 process in which formal rules of evidence and procedure need
7 not be observed. The party to the mediation is not required to
8 attend the mediation, provided that any representatives of the
9 Any party participating in a mediation must have the authority
10 to make a binding decision. All parties must mediate in good
11 faith.
12 (e) The department shall randomly select mediators.
13 Each party may once reject the mediator selected, either
14 originally or after the opposing side has exercised its option
15 to reject a mediator.
16 (f) If the insurer requests mediation, the costs of
17 mediation shall be paid by the insurer. Otherwise, the costs
18 shall be paid equally by both parties, except as provided in
19 subsection (5) costs of mediation shall be borne equally by
20 both parties unless the mediator determines that one party has
21 not mediated in good faith.
22 (g) Only one mediation may be requested for all issues
23 that are, or with due diligence of the requesting party could
24 have been, addressed with such mediation each claim, unless
25 all parties agree to further mediation.
26 (h)(2) Upon receipt of a request for mediation, the
27 department shall refer the request to a mediator. The
28 mediator shall notify the applicant and all interested
29 parties, as identified by the applicant, and any other parties
30 the mediator believes may have an interest in the mediation,
31 of the date, time, and place of the mediation conference. The
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1 conference may be held by telephone, if feasible. The
2 mediation conference shall be held within 45 days after the
3 request for mediation.
4 (i)(3)(a) The department shall approve mediators to
5 conduct mediations pursuant to this section. All mediators
6 must file an application under oath for approval as a
7 mediator.
8 (j)(b) To qualify for approval as a mediator, a person
9 must meet the following qualifications:
10 1. Possess a masters or doctorate degree in
11 psychology, counseling, business, accounting, or economics, be
12 a member of The Florida Bar, be licensed as a certified public
13 accountant, or demonstrate that the applicant for approval has
14 been actively engaged as a qualified mediator for at least 4
15 years prior to July 1, 1990.
16 2. Within 4 years immediately preceding the date the
17 application for approval is filed with the department, have
18 completed a minimum of a 40-hour training program approved by
19 the department and successfully passed a final examination
20 included in the training program and approved by the
21 department. The training program shall include and address all
22 of the following:
23 a. Mediation theory.
24 b. Mediation process and techniques.
25 c. Standards of conduct for mediators.
26 d. Conflict management and intervention skills.
27 e. Insurance nomenclature.
28 f. The provisions of this section and additional
29 training where required as to any person not trained
30 concerning applicable principles of law.
31 (3) RULES.--
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1 (4) The department must adopt rules of procedure for
2 claims mediation, taking into consideration a system that is
3 consistent with this section and that which:
4 (a) Is fair.
5 (b) Promotes settlement.
6 (c) Avoids delay.
7 (d) Is nonadversarial.
8 (e) Uses a framework for modern mediating technique.
9 (f) Controls costs and expenses of mediation.
10 (g) Provides that, as to persons not represented by an
11 attorney, consumer affairs specialists of the department shall
12 be available for consultation to the extent that they may
13 lawfully do so; and that the mediator shall diligently inquire
14 and ascertain all facts necessary to formulate a fair and
15 informed recommendation pursuant to subsection (5).
16 (4) NONADMISSIBILITY.--
17 (5) Disclosures and information divulged in the
18 mediation process are not admissible in any subsequent action
19 or proceeding relating to the claim or to the cause of action
20 giving rise to the claim, except as provided in subsection
21 (5). A person demanding mediation under this section may not
22 demand or request mediation after a suit is filed relating to
23 the same facts already mediated.
24 (5) MEDIATOR'S RECOMMENDATION; ATTORNEY'S FEES.--This
25 subsection applies if either party has requested mediation
26 under this section for a claim for personal injury protection
27 benefits under s. 627.736.
28 (a) For matters that are not resolved by the parties
29 at the conclusion of the mediation, the mediator shall prepare
30 a report recommending whether any amount is due and, if so,
31 the amount deemed to be owed on an itemized basis. Such report
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1 shall be sent to all parties in attendance at the mediation
2 and to the department. This recommendation is not binding on
3 any party and the parties retain access to courts. The
4 mediator's written recommendation is admissible in any
5 subsequent action or proceeding relating to the claim or to
6 the cause of action giving rise to the claim only for purposes
7 of determining the award of attorney's fees.
8 (b) If the insurer declines to participate in
9 mediation or declines to pay the amount recommended in a
10 mediator's report, the insurer remains potentially liable for
11 reasonable attorney's fees pursuant to law. In such cases,
12 contingency risk multipliers apply only if the court
13 determines and states explicitly the particular legal or
14 factual issue involved and provides reasons supporting its
15 determination. The contingency risk multiplier shall be 2.5 if
16 the court determines that the issue is of such great public
17 importance that the public interest requires the determination
18 of that issue.
19 (c) If the claimant declines to mediate or declines to
20 settle the matter in accordance with the recommendation of the
21 mediator pursuant to this section, the insurer is not liable
22 for attorney's fees otherwise required by provisions of the
23 insurance code or for damages under s. 624.155.
24 (d) The insurer is not liable for attorney's fees
25 otherwise required by provisions of the insurance code or for
26 damages under s. 624.155 if the insurer tenders payment of the
27 amount demanded in the demand letter at any time prior to the
28 insurer's receipt of the mediator's written recommendation, or
29 tenders the amount recommended within 10 days after the
30 insurer's receipt of the mediator's written recommendation,
31 together with the mediator's fee if any has accrued,
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1 applicable interest, and a penalty of 10 percent of the
2 overdue amount paid by the insurer, subject to a maximum
3 penalty of $250. However, if the mediator recommends an amount
4 that is in excess of the amount that the insurer has paid, the
5 insurer is liable for reasonable attorney's fees of the
6 claimant of up to $1,000, as determined by the mediator. For
7 purposes of this subsection, payment shall be treated as being
8 made on the date a draft or other valid instrument that is
9 equivalent to payment or tender of payment is placed in the
10 United States mail in a properly addressed, postpaid envelope,
11 or if not so posted, on the date of delivery.
12 (e) An action may not be brought against an insurer
13 without attaching a copy of the notice required by this
14 subsection and a copy of the proof of delivery of the notice
15 required by this section.
16 Section 12. Subsection (9) is added to section 768.79,
17 Florida Statutes, to read:
18 768.79 Offer of judgment and demand for judgment.--
19 (9) This section is applicable to any civil action
20 filed which applies to s. 627.736, in any court in this state.
21 A filing in compliance with this section does not constitute
22 an admission of coverage, and an insurer may not be estopped
23 from denying coverage, denying liability, or defending against
24 any claim on its merits.
25 Section 13. Subsections (7), (8), and (9) of section
26 817.234, Florida Statutes, are amended to read:
27 817.234 False and fraudulent insurance claims.--
28 (7)(a) It shall constitute a material omission and
29 insurance fraud for any physician or other provider, other
30 than a hospital, to engage in a general business practice of
31 billing amounts as its usual and customary charge, if such
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1 provider has agreed with the patient or intends to waive
2 deductibles or copayments, or does not for any other reason
3 intend to collect the total amount of such charge.
4 (b) The provisions of this section shall also apply as
5 to any insurer or adjusting firm or its agents or
6 representatives who, with intent, injure, defraud, or deceive
7 any claimant with regard to any claim. The claimant shall
8 have the right to recover the damages provided in this
9 section.
10 (c) An insurer, or any person acting at the direction
11 of or on behalf of an insurer, may not change an opinion in a
12 mental or physical report prepared under s. 627.736(7) or
13 direct the physician preparing the report to change such
14 opinion; however, this provision does not preclude the insurer
15 from calling to the attention of the physician errors of fact
16 in the report based upon information in the claim file. Any
17 person who violates this paragraph commits a felony of the
18 third degree, punishable as provided in s. 775.082, s.
19 775.083, or s. 775.084.
20 (8)(a) A It is unlawful for any person may not, in his
21 or her individual capacity or in his or her capacity as a
22 public or private employee, or for any firm, corporation,
23 partnership, or association, to solicit or cause to be
24 solicited any business from a person involved in a motor
25 vehicle accident with the intent of defrauding any other
26 person, by any means of communication other than advertising
27 directed to the public for the purpose of making motor vehicle
28 tort claims or claims for personal injury protection benefits
29 required by s. 627.736. Charges for any services rendered by
30 a health care provider or attorney who violates this
31 subsection in regard to the person for whom such services were
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1 rendered are noncompensable and unenforceable as a matter of
2 law. Any person who violates the provisions of this paragraph
3 subsection commits a felony of the second third degree,
4 punishable as provided in s. 775.082, s. 775.083, or s.
5 775.084. A person who is convicted of a violation of this
6 subsection shall be sentenced to a minimum term of
7 imprisonment of 2 years.
8 (b) A person may not solicit or cause to be solicited
9 any business from a person involved in a motor vehicle
10 accident by any means of communication other than advertising
11 directed to the public for the purpose of making motor vehicle
12 tort claims or claims for personal injury protection benefits
13 required by s. 627.736, within 60 days after the occurrence of
14 the motor vehicle accident. Any person who violates this
15 paragraph commits a felony of the third degree, punishable as
16 provided in s. 775.082, s. 775.083, or s. 775.084.
17 (c) A lawyer, health care practitioner as defined in
18 s. 456.001, or owner or medical director of a clinic required
19 to be licensed pursuant to s. 400.203 may not, at any time
20 after 60 days have elapsed from the occurrence of a motor
21 vehicle accident, solicit or cause to be solicited any
22 business from a person involved in a motor vehicle accident by
23 means of in-person or telephone contact at the person's
24 residence, for the purpose of making motor vehicle tort claims
25 or claims for personal injury protection benefits required by
26 s. 627.736. Any person who violates this paragraph commits a
27 felony of the third degree, punishable as provided in s.
28 775.082, s. 775.083, or s. 775.084.
29 (d) Charges for any services rendered by any person
30 who violates this subsection in regard to the person for whom
31
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1 such services were rendered are noncompensable and
2 unenforceable as a matter of law.
3 (9) A person may not organize, plan, or knowingly
4 participate in an intentional motor vehicle crash for the
5 purpose of making motor vehicle tort claims or claims for
6 personal injury protection benefits as required by s. 627.736.
7 It is unlawful for any attorney to solicit any business
8 relating to the representation of a person involved in a motor
9 vehicle accident for the purpose of filing a motor vehicle
10 tort claim or a claim for personal injury protection benefits
11 required by s. 627.736. The solicitation by advertising of
12 any business by an attorney relating to the representation of
13 a person injured in a specific motor vehicle accident is
14 prohibited by this section. Any person attorney who violates
15 the provisions of this paragraph subsection commits a felony
16 of the second third degree, punishable as provided in s.
17 775.082, s. 775.083, or s. 775.084. A person who is convicted
18 of a violation of this subsection shall be sentenced to a
19 minimum term of imprisonment of 2 years. Whenever any circuit
20 or special grievance committee acting under the jurisdiction
21 of the Supreme Court finds probable cause to believe that an
22 attorney is guilty of a violation of this section, such
23 committee shall forward to the appropriate state attorney a
24 copy of the finding of probable cause and the report being
25 filed in the matter. This section shall not be interpreted to
26 prohibit advertising by attorneys which does not entail a
27 solicitation as described in this subsection and which is
28 permitted by the rules regulating The Florida Bar as
29 promulgated by the Florida Supreme Court.
30 Section 14. Section 817.236, Florida Statutes, is
31 amended to read:
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1 817.236 False and fraudulent motor vehicle insurance
2 application.--Any person who, with intent to injure, defraud,
3 or deceive any motor vehicle insurer, including any
4 statutorily created underwriting association or pool of motor
5 vehicle insurers, presents or causes to be presented any
6 written application, or written statement in support thereof,
7 for motor vehicle insurance knowing that the application or
8 statement contains any false, incomplete, or misleading
9 information concerning any fact or matter material to the
10 application commits a felony misdemeanor of the third first
11 degree, punishable as provided in s. 775.082, or s. 775.083,
12 or s. 775.084.
13 Section 15. Section 817.2361, Florida Statutes, is
14 created to read:
15 817.2361 False or fraudulent motor vehicle insurance
16 card.--Any person who, with intent to deceive any other
17 person, creates, markets, or presents a false or fraudulent
18 motor vehicle insurance card commits a felony of the third
19 degree, punishable as provided in s. 775.082, s. 775.083, or
20 s. 775.084.
21 Section 16. Effective October 1, 2003, paragraphs (c)
22 and (g) of subsection (3) of section 921.0022, Florida
23 Statutes, are amended to read:
24 921.0022 Criminal Punishment Code; offense severity
25 ranking chart.--
26 (3) OFFENSE SEVERITY RANKING CHART
27
28 Florida Felony
29 Statute Degree Description
30
31
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1 (c) LEVEL 3
2 119.10(3) 3rd Unlawful use of confidential
3 information from police reports.
4 316.066(3)(d)-(f) 3rd Unlawfully obtaining or using
5 confidential crash reports.
6 316.193(2)(b) 3rd Felony DUI, 3rd conviction.
7 316.1935(2) 3rd Fleeing or attempting to elude
8 law enforcement officer in marked
9 patrol vehicle with siren and
10 lights activated.
11 319.30(4) 3rd Possession by junkyard of motor
12 vehicle with identification
13 number plate removed.
14 319.33(1)(a) 3rd Alter or forge any certificate of
15 title to a motor vehicle or
16 mobile home.
17 319.33(1)(c) 3rd Procure or pass title on stolen
18 vehicle.
19 319.33(4) 3rd With intent to defraud, possess,
20 sell, etc., a blank, forged, or
21 unlawfully obtained title or
22 registration.
23 327.35(2)(b) 3rd Felony BUI.
24 328.05(2) 3rd Possess, sell, or counterfeit
25 fictitious, stolen, or fraudulent
26 titles or bills of sale of
27 vessels.
28 328.07(4) 3rd Manufacture, exchange, or possess
29 vessel with counterfeit or wrong
30 ID number.
31
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1 376.302(5) 3rd Fraud related to reimbursement
2 for cleanup expenses under the
3 Inland Protection Trust Fund.
4 400.203(3) 3rd Operating a clinic without a
5 license or filing false license
6 application or other required
7 information.
8 501.001(2)(b) 2nd Tampers with a consumer product
9 or the container using materially
10 false/misleading information.
11 697.08 3rd Equity skimming.
12 790.15(3) 3rd Person directs another to
13 discharge firearm from a vehicle.
14 796.05(1) 3rd Live on earnings of a prostitute.
15 806.10(1) 3rd Maliciously injure, destroy, or
16 interfere with vehicles or
17 equipment used in firefighting.
18 806.10(2) 3rd Interferes with or assaults
19 firefighter in performance of
20 duty.
21 810.09(2)(c) 3rd Trespass on property other than
22 structure or conveyance armed
23 with firearm or dangerous weapon.
24 812.014(2)(c)2. 3rd Grand theft; $5,000 or more but
25 less than $10,000.
26 812.0145(2)(c) 3rd Theft from person 65 years of age
27 or older; $300 or more but less
28 than $10,000.
29 815.04(4)(b) 2nd Computer offense devised to
30 defraud or obtain property.
31
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1 817.034(4)(a)3. 3rd Engages in scheme to defraud
2 (Florida Communications Fraud
3 Act), property valued at less
4 than $20,000.
5 817.233 3rd Burning to defraud insurer.
6 817.234(8)
7 (b)-(c)&(9) 3rd Unlawful solicitation of persons
8 involved in motor vehicle
9 accidents.
10 817.234(11)(a) 3rd Insurance fraud; property value
11 less than $20,000.
12 817.236 3rd Filing a false motor vehicle
13 insurance application.
14 817.2361 3rd Creating, marketing, or
15 presenting a false or fraudulent
16 motor vehicle insurance card.
17 817.505(4) 3rd Patient brokering.
18 828.12(2) 3rd Tortures any animal with intent
19 to inflict intense pain, serious
20 physical injury, or death.
21 831.28(2)(a) 3rd Counterfeiting a payment
22 instrument with intent to defraud
23 or possessing a counterfeit
24 payment instrument.
25 831.29 2nd Possession of instruments for
26 counterfeiting drivers' licenses
27 or identification cards.
28 838.021(3)(b) 3rd Threatens unlawful harm to public
29 servant.
30 843.19 3rd Injure, disable, or kill police
31 dog or horse.
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1 870.01(2) 3rd Riot; inciting or encouraging.
2 893.13(1)(a)2. 3rd Sell, manufacture, or deliver
3 cannabis (or other s.
4 893.03(1)(c), (2)(c)1., (2)(c)2.,
5 (2)(c)3., (2)(c)5., (2)(c)6.,
6 (2)(c)7., (2)(c)8., (2)(c)9.,
7 (3), or (4) drugs).
8 893.13(1)(d)2. 2nd Sell, manufacture, or deliver s.
9 893.03(1)(c), (2)(c)1., (2)(c)2.,
10 (2)(c)3., (2)(c)5., (2)(c)6.,
11 (2)(c)7., (2)(c)8., (2)(c)9.,
12 (3), or (4) drugs within 200 feet
13 of university or public park.
14 893.13(1)(f)2. 2nd Sell, manufacture, or deliver s.
15 893.03(1)(c), (2)(c)1., (2)(c)2.,
16 (2)(c)3., (2)(c)5., (2)(c)6.,
17 (2)(c)7., (2)(c)8., (2)(c)9.,
18 (3), or (4) drugs within 200 feet
19 of public housing facility.
20 893.13(6)(a) 3rd Possession of any controlled
21 substance other than felony
22 possession of cannabis.
23 893.13(7)(a)8. 3rd Withhold information from
24 practitioner regarding previous
25 receipt of or prescription for a
26 controlled substance.
27 893.13(7)(a)9. 3rd Obtain or attempt to obtain
28 controlled substance by fraud,
29 forgery, misrepresentation, etc.
30 893.13(7)(a)10. 3rd Affix false or forged label to
31 package of controlled substance.
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1 893.13(7)(a)11. 3rd Furnish false or fraudulent
2 material information on any
3 document or record required by
4 chapter 893.
5 893.13(8)(a)1. 3rd Knowingly assist a patient, other
6 person, or owner of an animal in
7 obtaining a controlled substance
8 through deceptive, untrue, or
9 fraudulent representations in or
10 related to the practitioner's
11 practice.
12 893.13(8)(a)2. 3rd Employ a trick or scheme in the
13 practitioner's practice to assist
14 a patient, other person, or owner
15 of an animal in obtaining a
16 controlled substance.
17 893.13(8)(a)3. 3rd Knowingly write a prescription
18 for a controlled substance for a
19 fictitious person.
20 893.13(8)(a)4. 3rd Write a prescription for a
21 controlled substance for a
22 patient, other person, or an
23 animal if the sole purpose of
24 writing the prescription is a
25 monetary benefit for the
26 practitioner.
27 918.13(1)(a) 3rd Alter, destroy, or conceal
28 investigation evidence.
29 944.47
30 (1)(a)1.-2. 3rd Introduce contraband to
31 correctional facility.
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1 944.47(1)(c) 2nd Possess contraband while upon the
2 grounds of a correctional
3 institution.
4 985.3141 3rd Escapes from a juvenile facility
5 (secure detention or residential
6 commitment facility).
7 (g) LEVEL 7
8 316.193(3)(c)2. 3rd DUI resulting in serious bodily
9 injury.
10 327.35(3)(c)2. 3rd Vessel BUI resulting in serious
11 bodily injury.
12 402.319(2) 2nd Misrepresentation and negligence
13 or intentional act resulting in
14 great bodily harm, permanent
15 disfiguration, permanent
16 disability, or death.
17 409.920(2) 3rd Medicaid provider fraud.
18 456.065(2) 3rd Practicing a health care
19 profession without a license.
20 456.065(2) 2nd Practicing a health care
21 profession without a license
22 which results in serious bodily
23 injury.
24 458.327(1) 3rd Practicing medicine without a
25 license.
26 459.013(1) 3rd Practicing osteopathic medicine
27 without a license.
28 460.411(1) 3rd Practicing chiropractic medicine
29 without a license.
30 461.012(1) 3rd Practicing podiatric medicine
31 without a license.
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1 462.17 3rd Practicing naturopathy without a
2 license.
3 463.015(1) 3rd Practicing optometry without a
4 license.
5 464.016(1) 3rd Practicing nursing without a
6 license.
7 465.015(2) 3rd Practicing pharmacy without a
8 license.
9 466.026(1) 3rd Practicing dentistry or dental
10 hygiene without a license.
11 467.201 3rd Practicing midwifery without a
12 license.
13 468.366 3rd Delivering respiratory care
14 services without a license.
15 483.828(1) 3rd Practicing as clinical laboratory
16 personnel without a license.
17 483.901(9) 3rd Practicing medical physics
18 without a license.
19 484.013(1)(c) 3rd Preparing or dispensing optical
20 devices without a prescription.
21 484.053 3rd Dispensing hearing aids without a
22 license.
23 494.0018(2) 1st Conviction of any violation of
24 ss. 494.001-494.0077 in which the
25 total money and property
26 unlawfully obtained exceeded
27 $50,000 and there were five or
28 more victims.
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1 560.123(8)(b)1. 3rd Failure to report currency or
2 payment instruments exceeding
3 $300 but less than $20,000 by
4 money transmitter.
5 560.125(5)(a) 3rd Money transmitter business by
6 unauthorized person, currency or
7 payment instruments exceeding
8 $300 but less than $20,000.
9 655.50(10)(b)1. 3rd Failure to report financial
10 transactions exceeding $300 but
11 less than $20,000 by financial
12 institution.
13 782.051(3) 2nd Attempted felony murder of a
14 person by a person other than the
15 perpetrator or the perpetrator of
16 an attempted felony.
17 782.07(1) 2nd Killing of a human being by the
18 act, procurement, or culpable
19 negligence of another
20 (manslaughter).
21 782.071 2nd Killing of human being or viable
22 fetus by the operation of a motor
23 vehicle in a reckless manner
24 (vehicular homicide).
25 782.072 2nd Killing of a human being by the
26 operation of a vessel in a
27 reckless manner (vessel
28 homicide).
29 784.045(1)(a)1. 2nd Aggravated battery; intentionally
30 causing great bodily harm or
31 disfigurement.
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1 784.045(1)(a)2. 2nd Aggravated battery; using deadly
2 weapon.
3 784.045(1)(b) 2nd Aggravated battery; perpetrator
4 aware victim pregnant.
5 784.048(4) 3rd Aggravated stalking; violation of
6 injunction or court order.
7 784.07(2)(d) 1st Aggravated battery on law
8 enforcement officer.
9 784.074(1)(a) 1st Aggravated battery on sexually
10 violent predators facility staff.
11 784.08(2)(a) 1st Aggravated battery on a person 65
12 years of age or older.
13 784.081(1) 1st Aggravated battery on specified
14 official or employee.
15 784.082(1) 1st Aggravated battery by detained
16 person on visitor or other
17 detainee.
18 784.083(1) 1st Aggravated battery on code
19 inspector.
20 790.07(4) 1st Specified weapons violation
21 subsequent to previous conviction
22 of s. 790.07(1) or (2).
23 790.16(1) 1st Discharge of a machine gun under
24 specified circumstances.
25 790.165(2) 2nd Manufacture, sell, possess, or
26 deliver hoax bomb.
27 790.165(3) 2nd Possessing, displaying, or
28 threatening to use any hoax bomb
29 while committing or attempting to
30 commit a felony.
31
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1 790.166(3) 2nd Possessing, selling, using, or
2 attempting to use a hoax weapon
3 of mass destruction.
4 790.166(4) 2nd Possessing, displaying, or
5 threatening to use a hoax weapon
6 of mass destruction while
7 committing or attempting to
8 commit a felony.
9 796.03 2nd Procuring any person under 16
10 years for prostitution.
11 800.04(5)(c)1. 2nd Lewd or lascivious molestation;
12 victim less than 12 years of age;
13 offender less than 18 years.
14 800.04(5)(c)2. 2nd Lewd or lascivious molestation;
15 victim 12 years of age or older
16 but less than 16 years; offender
17 18 years or older.
18 806.01(2) 2nd Maliciously damage structure by
19 fire or explosive.
20 810.02(3)(a) 2nd Burglary of occupied dwelling;
21 unarmed; no assault or battery.
22 810.02(3)(b) 2nd Burglary of unoccupied dwelling;
23 unarmed; no assault or battery.
24 810.02(3)(d) 2nd Burglary of occupied conveyance;
25 unarmed; no assault or battery.
26 812.014(2)(a) 1st Property stolen, valued at
27 $100,000 or more; cargo stolen
28 valued at $50,000 or more;
29 property stolen while causing
30 other property damage; 1st degree
31 grand theft.
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1 812.014(2)(b)3. 2nd Property stolen, emergency
2 medical equipment; 2nd degree
3 grand theft.
4 812.0145(2)(a) 1st Theft from person 65 years of age
5 or older; $50,000 or more.
6 812.019(2) 1st Stolen property; initiates,
7 organizes, plans, etc., the theft
8 of property and traffics in
9 stolen property.
10 812.131(2)(a) 2nd Robbery by sudden snatching.
11 812.133(2)(b) 1st Carjacking; no firearm, deadly
12 weapon, or other weapon.
13 817.234(8)(a) 2nd Solicitation of motor vehicle
14 accident victims with intent to
15 defraud.
16 817.234(9) 2nd Organizing, planning, or
17 participating in an intentional
18 motor vehicle collision.
19 817.234(11)(c) 1st Insurance fraud; property value
20 $100,000 or more.
21 825.102(3)(b) 2nd Neglecting an elderly person or
22 disabled adult causing great
23 bodily harm, disability, or
24 disfigurement.
25 825.103(2)(b) 2nd Exploiting an elderly person or
26 disabled adult and property is
27 valued at $20,000 or more, but
28 less than $100,000.
29 827.03(3)(b) 2nd Neglect of a child causing great
30 bodily harm, disability, or
31 disfigurement.
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1 827.04(3) 3rd Impregnation of a child under 16
2 years of age by person 21 years
3 of age or older.
4 837.05(2) 3rd Giving false information about
5 alleged capital felony to a law
6 enforcement officer.
7 872.06 2nd Abuse of a dead human body.
8 893.13(1)(c)1. 1st Sell, manufacture, or deliver
9 cocaine (or other drug prohibited
10 under s. 893.03(1)(a), (1)(b),
11 (1)(d), (2)(a), (2)(b), or
12 (2)(c)4.) within 1,000 feet of a
13 child care facility or school.
14 893.13(1)(e)1. 1st Sell, manufacture, or deliver
15 cocaine or other drug prohibited
16 under s. 893.03(1)(a), (1)(b),
17 (1)(d), (2)(a), (2)(b), or
18 (2)(c)4., within 1,000 feet of
19 property used for religious
20 services or a specified business
21 site.
22 893.13(4)(a) 1st Deliver to minor cocaine (or
23 other s. 893.03(1)(a), (1)(b),
24 (1)(d), (2)(a), (2)(b), or
25 (2)(c)4. drugs).
26 893.135(1)(a)1. 1st Trafficking in cannabis, more
27 than 25 lbs., less than 2,000
28 lbs.
29 893.135
30 (1)(b)1.a. 1st Trafficking in cocaine, more than
31 28 grams, less than 200 grams.
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1 893.135
2 (1)(c)1.a. 1st Trafficking in illegal drugs,
3 more than 4 grams, less than 14
4 grams.
5 893.135
6 (1)(d)1. 1st Trafficking in phencyclidine,
7 more than 28 grams, less than 200
8 grams.
9 893.135(1)(e)1. 1st Trafficking in methaqualone, more
10 than 200 grams, less than 5
11 kilograms.
12 893.135(1)(f)1. 1st Trafficking in amphetamine, more
13 than 14 grams, less than 28
14 grams.
15 893.135
16 (1)(g)1.a. 1st Trafficking in flunitrazepam, 4
17 grams or more, less than 14
18 grams.
19 893.135
20 (1)(h)1.a. 1st Trafficking in
21 gamma-hydroxybutyric acid (GHB),
22 1 kilogram or more, less than 5
23 kilograms.
24 893.135
25 (1)(j)1.a. 1st Trafficking in 1,4-Butanediol, 1
26 kilogram or more, less than 5
27 kilograms.
28 893.135
29 (1)(k)2.a. 1st Trafficking in Phenethylamines,
30 10 grams or more, less than 200
31 grams.
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1 896.101(5)(a) 3rd Money laundering, financial
2 transactions exceeding $300 but
3 less than $20,000.
4 896.104(4)(a)1. 3rd Structuring transactions to evade
5 reporting or registration
6 requirements, financial
7 transactions exceeding $300 but
8 less than $20,000.
9 Section 17. The amendment made by this act to section
10 456.0375(1)(b), Florida Statutes, is intended to clarify the
11 legislative intent of that paragraph as it existed at the time
12 the paragraph initially took effect. Accordingly, section
13 456.0375(1)(b), Florida Statutes, as amended by this act shall
14 operate retroactively to October 1, 2001.
15 Section 18. Effective March 1, 2004, section 456.0375,
16 Florida Statutes, is repealed.
17 Section 19. Except as otherwise expressly provided in
18 this act, this act shall take effect July 1, 2003.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1202
3
4
The committee substitute does the following:
5
- Creates the "Motor Vehicle Insurance Affordability Reform
6 Act."
7 - Makes legislative findings related to Florida's no-fault,
personal injury protection (PIP), and motor vehicle
8 insurance laws.
9 - Creates new crimes for soliciting motor vehicle accident
victims; intentionally causing motor vehicle accidents;
10 disclosing confidential motor vehicle accident reports;
presenting false motor vehicle insurance cards; and for
11 specified fraudulent actions actions by insurers and
providers.
12
- Increases criminal penalties for soliciting motor vehicle
13 accident victims and presenting false insurance
applications and provides minimum mandatory penalties for
14 intentionally causing motor vehicle accidents and
soliciting accident victims during the period accident
15 reports are confidential.
16 - Increases the ranking of solicitation crimes and certain
motor vehicle insurance fraud offenses under the Offense
17 Ranking Chart law; and provides funding for insurer
Special Investigation Units, the Division of Insurance
18 Fraud within the Department of Financial Services, and
the Office of Statewide Prosecution for the prevention,
19 investigation, and prosecution of motor vehicle insurance
fraud by increasing specified agent fees.
20
- Transfers health care clinic regulation from the
21 Department of Health (DOH) to the Agency for Health Care
Administration (AHCA) funded by increased license
22 application fees. Requires inspection and background
screenings of health care clinics and authorizes AHCA to
23 impose penalties for violations. Creates criminal
penalties for unlicensed clinics and authorizes
24 injunctive proceedings against such clinics.
25 - Establishes PIP medical fee schedules for providers
rendering treatments.
26
- Authorizes the DOH to establish a list of diagnostic
27 tests that are not medically necessary and not
compensable, and to establish PIP utilization guidelines
28 for neck and back injuries.
29 - Defines terms related to PIP benefits.
30 - Prohibits insurers from certain actions related to
independent medical examinations.
31
- Provides financial incentives to consumers to report
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1 improper billing by providers.
2 - Provides for insurers and insureds to have a civil cause
of action under specified circumstances.
3
- Requires that the written notice of medical benefits for
4 PIP must meet specified billing and coding provisions.
Authorizes the Financial Services Commission to develop a
5 form to be utilized by providers and insureds to attest
to certain information.
6
- Authorizes the Financial Services Commission to increase
7 the minimum $10,000 PIP benefit coverage requirement if
it makes certain determinations.
8
- Expands the presuit demand letter to be applicable to all
9 PIP disputes and increases the time requirement for
insurers to respond.
10
- Provides that parties in a PIP dispute may use the
11 insurance mediation law, and the option to use mediation
affects application of attorney's fees and cost under
12 certain conditions. Provides for mediators to be selected
by the Department of Financial Services. Requires the
13 mediator, if mediation is unsuccessful, to issue written
recommendations.
14
- Changes the current calculation of the PIP deductible.
15
- Prohibits an insurer from changing medical codes, except
16 under specified conditions.
17 - Requires that AHCA must approve, by rule, additional
treatises that may be used in addition to other specified
18 publications, for guidance in determining compliance with
applicable medical coding requirements.
19
- Provides that an insurer or insured is not required to
20 pay a claim or charge for MRI services that are provided
within a moveable or non-moveable trailer coach, vehicle,
21 or a trailer, with certain exceptions.
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