Senate Bill sb2330

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    Florida Senate - 2005                                  SB 2330

    By Senator Alexander





    17-1054-05

  1                      A bill to be entitled

  2         An act relating to offenses involving

  3         insurance; amending s. 400.9935, F.S.;

  4         providing for health care clinics to post signs

  5         with information about a reward program for

  6         information leading to conviction of certain

  7         offenses; providing for inspections of such

  8         clinics by employees of the Division of

  9         Insurance Fraud; amending s. 440.105, F.S.;

10         increasing penalties for employers unlawfully

11         failing to secure workers' compensation

12         insurance when an employee is injured by or

13         dies from a work-related injury; amending s.

14         624.15, F.S.; providing criminal penalties for

15         violations of emergency rules or orders of the

16         Department of Financial Services; amending s.

17         624.155, F.S.; revising provisions that

18         authorize a civil cause of action for

19         violations of the requirement for a certificate

20         of authority to act as an insurer; amending s.

21         626.112, F.S.; providing criminal penalties for

22         transacting insurance or engaging in insurance

23         activities without a license; amending s.

24         626.901, F.S.; stating that independently

25         procured coverage constitutes an exception to

26         the prohibition on representing an unauthorized

27         entity only when transacted outside the state;

28         amending s. 626.938, F.S.; providing that

29         independently procured coverage must be

30         accomplished outside the state, must be

31         procured through an unauthorized insurer

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 1         licensed in some other state or country, and is

 2         not available for life, health, or workers'

 3         compensation insurance; amending s. 626.989,

 4         F.S.; allowing insurers, agents, and other

 5         licensees, their employees, and self-insured

 6         entities contracting or associated with the

 7         National Insurance Crime Bureau to report

 8         fraudulent insurance acts; authorizing adoption

 9         of rules for reporting suspected fraudulent

10         activity; amending s. 817.234, F.S.; providing

11         that it is insurance fraud for a service

12         provider to agree or intend to waive

13         deductibles; providing criminal penalties for

14         scheming to create documentation of a

15         nonexistent motor vehicle accident; amending s.

16         817.2361, F.S.; providing criminal penalties

17         for creating, marketing, or presenting any

18         false or fraudulent proof of motor vehicle

19         insurance; amending s. 817.50, F.S.; providing

20         that giving false or fictitious information to

21         a health care provider is not prima facie

22         evidence of intent to defraud when done by a

23         law enforcement officer during an

24         investigation; amending s. 817.505, F.S.;

25         providing criminal penalties for soliciting or

26         receiving compensation or receiving a split-fee

27         arrangement for acceptance or acknowledgement

28         of treatment from a health care provider or

29         health care facility; redefining the term

30         "health care provider or health care facility";

31         amending s. 843.08, F.S.; providing criminal

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    Florida Senate - 2005                                  SB 2330
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 1         penalties for falsely personating an officer of

 2         the Department of Financial Services; providing

 3         severability; providing an effective date.

 4  

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

 6  

 7         Section 1.  Subsection (13) is added to section

 8  400.9935, Florida Statutes, to read:

 9         400.9935  Clinic responsibilities.--

10         (13)  The clinic shall display a sign in a conspicuous

11  location within the clinic readily visible to all patients

12  indicating that, pursuant to s. 626.9892, the Department of

13  Financial Services may pay rewards of up to $25,000 to persons

14  providing information leading to the arrest and conviction of

15  persons committing crimes investigated by the Division of

16  Insurance Fraud arising from violations of s. 440.105, s.

17  624.15, s. 626.9541, s. 626.989, or s. 817.234. An authorized

18  employee of the Division of Insurance Fraud may make

19  unannounced inspections of a clinic licensed under this part

20  as necessary to determine whether the clinic is in compliance

21  with this subsection. A licensed clinic shall allow full and

22  complete access to the premises to such authorized employee of

23  the division who makes an inspection to determine compliance

24  with this subsection..

25         Section 2.  Subsection (4) of section 440.105, Florida

26  Statutes, is amended to read:

27         440.105  Prohibited activities; reports; penalties;

28  limitations.--

29         (4)  Unless otherwise specifically provided, whoever

30  violates any provision of this subsection commits insurance

31  fraud, punishable as provided in paragraph (f).

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 1         (a)  It shall be unlawful for any employer to

 2  knowingly:

 3         1.  Present or cause to be presented any false,

 4  fraudulent, or misleading oral or written statement to any

 5  person as evidence of compliance with s. 440.38.

 6         2.  Make a deduction from the pay of any employee

 7  entitled to the benefits of this chapter for the purpose of

 8  requiring the employee to pay any portion of premium paid by

 9  the employer to a carrier or to contribute to a benefit fund

10  or department maintained by such employer for the purpose of

11  providing compensation or medical services and supplies as

12  required by this chapter.

13         3.  Fail to secure worker's payment of compensation

14  coverage if required to do so by this chapter.

15         a.  However, if an employer knowingly fails to secure

16  workers' compensation coverage for an employee when required

17  by this chapter and such employee subsequently suffers a

18  work-related injury requiring hospitalization, the employer

19  commits a felony of the second degree, punishable as provided

20  in s. 775.082, s. 775.083, or s. 775.084.

21         b.  However, if an employer knowingly fails to secure

22  workers' compensation coverage for an employee when required

23  by this chapter and such employee subsequently suffers a

24  work-related death, the employer commits a felony of the first

25  degree, punishable as provided in s. 775.082, s. 775.083, or

26  s.775.084.

27         (b)  It is shall be unlawful for any person:

28         1.  To knowingly make, or cause to be made, any false,

29  fraudulent, or misleading oral or written statement for the

30  purpose of obtaining or denying any benefit or payment under

31  this chapter.

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 1         2.  To present or cause to be presented any written or

 2  oral statement as part of, or in support of, a claim for

 3  payment or other benefit pursuant to any provision of this

 4  chapter, knowing that such statement contains any false,

 5  incomplete, or misleading information concerning any fact or

 6  thing material to such claim.

 7         3.  To prepare or cause to be prepared any written or

 8  oral statement that is intended to be presented to any

 9  employer, insurance company, or self-insured program in

10  connection with, or in support of, any claim for payment or

11  other benefit pursuant to any provision of this chapter,

12  knowing that such statement contains any false, incomplete, or

13  misleading information concerning any fact or thing material

14  to such claim.

15         4.  To knowingly assist, conspire with, or urge any

16  person to engage in activity prohibited by this section.

17         5.  To knowingly make any false, fraudulent, or

18  misleading oral or written statement, or to knowingly omit or

19  conceal material information, required by s. 440.185 or s.

20  440.381, for the purpose of obtaining workers' compensation

21  coverage or for the purpose of avoiding, delaying, or

22  diminishing the amount of payment of any workers' compensation

23  premiums.

24         6.  To knowingly misrepresent or conceal payroll,

25  classification of workers, or information regarding an

26  employer's loss history which would be material to the

27  computation and application of an experience rating

28  modification factor for the purpose of avoiding or diminishing

29  the amount of payment of any workers' compensation premiums.

30         7.  To knowingly present or cause to be presented any

31  false, fraudulent, or misleading oral or written statement to

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 1  any person as evidence of compliance with s. 440.38, as

 2  evidence of eligibility for a certificate of exemption under

 3  s. 440.05.

 4         8.  To knowingly violate a stop-work order issued by

 5  the department pursuant to s. 440.107.

 6         9.  To knowingly present or cause to be presented any

 7  false, fraudulent, or misleading oral or written statement to

 8  any person as evidence of identity for the purpose of

 9  obtaining employment or filing or supporting a claim for

10  workers' compensation benefits.

11         (c)  It shall be unlawful for any physician licensed

12  under chapter 458, osteopathic physician licensed under

13  chapter 459, chiropractic physician licensed under chapter

14  460, podiatric physician licensed under chapter 461,

15  optometric physician licensed under chapter 463, or any other

16  practitioner licensed under the laws of this state to

17  knowingly and willfully assist, conspire with, or urge any

18  person to fraudulently violate any of the provisions of this

19  chapter.

20         (d)  It shall be unlawful for any person or

21  governmental entity licensed under chapter 395 to maintain or

22  operate a hospital in such a manner so that such person or

23  governmental entity knowingly and willfully allows the use of

24  the facilities of such hospital by any person, in a scheme or

25  conspiracy to fraudulently violate any of the provisions of

26  this chapter.

27         (e)  It shall be unlawful for any attorney or other

28  person, in his or her individual capacity or in his or her

29  capacity as a public or private employee, or any firm,

30  corporation, partnership, or association, to knowingly assist,

31  

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 1  conspire with, or urge any person to fraudulently violate any

 2  of the provisions of this chapter.

 3         (f)  If the monetary value of any violation of this

 4  subsection:

 5         1.  Is less than $20,000, the offender commits a felony

 6  of the third degree, punishable as provided in s. 775.082, s.

 7  775.083, or s. 775.084.

 8         2.  Is $20,000 or more, but less than $100,000, the

 9  offender commits a felony of the second degree, punishable as

10  provided in s. 775.082, s. 775.083, or s. 775.084.

11         3.  Is $100,000 or more, the offender commits a felony

12  of the first degree, punishable as provided in s. 775.082, s.

13  775.083, or s. 775.084.

14         Section 3.  Section 624.15, Florida Statutes, is

15  amended to read:

16         624.15  General penalty.--

17         (1)  Each willful violation of this code or department

18  rule as to which a greater penalty is not provided by another

19  provision of this code or department rule or by other

20  applicable laws of this state is a misdemeanor of the second

21  degree and is, in addition to any prescribed applicable

22  denial, suspension, or revocation of certificate of authority,

23  license, or permit, punishable as provided in s. 775.082 or s.

24  775.083.  Each instance of such violation shall be considered

25  a separate offense.

26         (2)  Each willful violation of an emergency rule or

27  order set forth by the department is a felony of the third

28  degree, punishable as provided in s. 775.082, s. 775.083, or

29  s, 775.084, in addition to any prescribed applicable denial,

30  suspension, or revocation of a certificate of authority,

31  

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 1  license, or permit. Each instance of such violation is a

 2  separate offense.

 3         Section 4.  Subsection (2) of section 624.155, Florida

 4  Statutes, is amended to read:

 5         624.155  Civil remedy.--

 6         (2)  Any party may bring a civil action against any

 7  person acting as an unauthorized insurer without a certificate

 8  of authority if such party is damaged by a violation of s.

 9  624.401 by that person the unauthorized insurer.

10         Section 5.  Subsection (9) is added to section 626.112,

11  Florida Statutes, to read:

12         626.112  License and appointment required; agents,

13  customer representatives, adjusters, insurance agencies,

14  service representatives, managing general agents.--

15         (9)  Any person who transacts insurance or otherwise

16  engages in insurance activities in this state without a

17  license in violation of this section commits a felony of the

18  third degree, punishable as provided in s. 775.082, s.

19  775.083, or s. 775.084.

20         Section 6.  Paragraph (d) of subsection (4) of section

21  626.901, Florida Statutes, is amended to read:

22         626.901  Representing or aiding unauthorized insurer

23  prohibited.--

24         (4)  This section does not apply to:

25         (d)  Independently procured coverage written pursuant

26  to s. 626.938 which is not solicited, marketed, negotiated, or

27  sold within this state.

28         Section 7.  Subsections (1), (2), and (9) of section

29  626.938, Florida Statutes, are amended to read:

30         626.938  Report and tax of independently procured

31  coverages.--

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 1         (1)  Every insured who resides in this state and

 2  procures or causes to be procured or continues or renews

 3  insurance from another state or country with an unauthorized

 4  foreign or alien insurer legitimately licensed in that other

 5  jurisdiction, or any self-insurer who resides in this state

 6  and so procures or continues excess loss, catastrophe, or

 7  other insurance, upon a subject of insurance resident,

 8  located, or to be performed within this state, other than

 9  insurance procured through a surplus lines agent pursuant to

10  the Surplus Lines Law of this state or exempted from tax under

11  s. 626.932(4), shall, within 30 days after the date such

12  insurance was so procured, continued, or renewed, file a

13  report of the same with the Florida Surplus Lines Service

14  Office in writing and upon forms designated by the Florida

15  Surplus Lines Service Office and furnished to such an insured

16  upon request, or in a computer readable format as determined

17  by the Florida Surplus Lines Service Office. The report shall

18  show the name and address of the insured or insureds, the name

19  and address of the insurer, the subject of the insurance, a

20  general description of the coverage, the amount of premium

21  currently charged therefor, and such additional pertinent

22  information as is reasonably requested by the Florida Surplus

23  Lines Service Office.

24         (2)  Any insurance in an unauthorized insurer

25  legitimately licensed in another state or country procured

26  through solicitations, negotiations, or an application, in

27  whole or in part occurring or made outside within or from

28  within this state, or for which premiums in whole or in part

29  are remitted directly or indirectly from within this state,

30  shall be deemed to be insurance procured, continued, or

31  renewed in this state within the intent of subsection (1).

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 1         (9)  This section does not authorize independent

 2  procurement of workers' compensation insurance, apply as to

 3  life insurance, or health insurance.

 4         Section 8.  Subsection (6) of section 626.989, Florida

 5  Statutes, is amended to read:

 6         626.989  Investigation by department or Division of

 7  Insurance Fraud; compliance; immunity; confidential

 8  information; reports to division; division investigator's

 9  power of arrest.--

10         (6)  Any person, other than an insurer, agent, or other

11  person licensed under the code, or an employee thereof, having

12  knowledge or who believes that a fraudulent insurance act or

13  any other act or practice which, upon conviction, constitutes

14  a felony or a misdemeanor under the code, or under s. 817.234,

15  is being or has been committed may send to the Division of

16  Insurance Fraud a report or information pertinent to such

17  knowledge or belief and such additional information relative

18  thereto as the department may request. However, any

19  professional practitioner licensed or regulated by the

20  Department of Business and Professional Regulation, except as

21  otherwise provided by law, any medical review committee as

22  defined in s. 766.101, any private medical review committee,

23  any self-insured entity contracting or associated with the

24  National Insurance Crime Bureau, and any insurer, agent, or

25  other person licensed under the code, or an employee thereof,

26  having knowledge or who believes that a fraudulent insurance

27  act or any other act or practice which, upon conviction,

28  constitutes a felony or a misdemeanor under the code, or under

29  s. 817.234, is being or has been committed shall send to the

30  Division of Insurance Fraud a report or information pertinent

31  to such knowledge or belief and such additional information

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 1  relative thereto as the department may require. The Division

 2  of Insurance Fraud shall review such information or reports

 3  and select such information or reports as, in its judgment,

 4  may require further investigation. It shall then cause an

 5  independent examination of the facts surrounding such

 6  information or report to be made to determine the extent, if

 7  any, to which a fraudulent insurance act or any other act or

 8  practice which, upon conviction, constitutes a felony or a

 9  misdemeanor under the code, or under s. 817.234, is being

10  committed. The Division of Insurance Fraud shall report any

11  alleged violations of law which its investigations disclose to

12  the appropriate licensing agency and state attorney or other

13  prosecuting agency having jurisdiction with respect to any

14  such violation, as provided in s. 624.310. If prosecution by

15  the state attorney or other prosecuting agency having

16  jurisdiction with respect to such violation is not begun

17  within 60 days of the division's report, the state attorney or

18  other prosecuting agency having jurisdiction with respect to

19  such violation shall inform the division of the reasons for

20  the lack of prosecution. The division may adopt rules that set

21  forth requirements for the manner in which suspected

22  fraudulent activity shall be reported to the division through

23  the use of a standard referral form.

24         Section 9.  Paragraph (a) of subsection (7) and

25  subsection (9) of section 817.234, Florida Statutes, are

26  amended to read:

27         817.234  False and fraudulent insurance claims.--

28         (7)(a)  It shall constitute a material omission and

29  insurance fraud punishable as provided in subsection (11) for

30  any service physician or other provider, other than a

31  hospital, to engage in a general business practice of billing

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 1  amounts as its usual and customary charge, if such provider

 2  has agreed with the insured patient or intends to waive

 3  deductibles or copayments, or does not for any other reason

 4  intend to collect the total amount of such charge. With

 5  respect to a determination as to whether a service physician

 6  or other provider has engaged in such general business

 7  practice, consideration shall be given to evidence of whether

 8  the physician or other provider made a good faith attempt to

 9  collect such deductible or copayment. This paragraph does not

10  apply to physicians or other providers who waive deductibles

11  or copayments or reduce their bills as part of a bodily injury

12  settlement or verdict.

13         (9)  A person may not organize, plan, or knowingly

14  participate in an intentional motor vehicle crash or a scheme

15  to create documentation of a motor vehicle crash that did not

16  occur for the purpose of making motor vehicle tort claims or

17  claims for personal injury protection benefits as required by

18  s. 627.736. Any person who violates this subsection commits a

19  felony of the second degree, punishable as provided in s.

20  775.082, s. 775.083, or s. 775.084. A person who is convicted

21  of a violation of this subsection shall be sentenced to a

22  minimum term of imprisonment of 2 years.

23         Section 10.  Section 817.2361, Florida Statutes, is

24  amended to read:

25         817.2361  False or fraudulent proof of motor vehicle

26  insurance card.--Any person who, with intent to deceive any

27  other person, creates, markets, or presents a false or

28  fraudulent proof of motor vehicle insurance card commits a

29  felony of the third degree, punishable as provided in s.

30  775.082, s. 775.083, or s. 775.084.

31  

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 1         Section 11.  Subsection (2) of section 817.50, Florida

 2  Statutes, is amended to read:

 3         817.50  Fraudulently obtaining goods, services, etc.,

 4  from a health care provider.--

 5         (2)  If any person gives to any health care provider in

 6  this state a false or fictitious name or a false or fictitious

 7  address or assigns to any health care provider the proceeds of

 8  any health maintenance contract or insurance contract, then

 9  knowing that such contract is no longer in force, is invalid,

10  or is void for any reason, such action shall be prima facie

11  evidence of the intent of such person to defraud the health

12  care provider. However, this subsection does not apply to

13  investigative actions taken by law enforcement officers for

14  law enforcement purposes in the course of their official

15  duties.

16         Section 12.  Subsection (1) and paragraph (a) of

17  subsection (2) of section 817.505, Florida Statutes, are

18  amended to read:

19         817.505  Patient brokering prohibited; exceptions;

20  penalties.--

21         (1)  It is unlawful for any person, including any

22  health care provider or health care facility, to:

23         (a)  Offer or pay any commission, bonus, rebate,

24  kickback, or bribe, directly or indirectly, in cash or in

25  kind, or engage in any split-fee arrangement, in any form

26  whatsoever, to induce the referral of patients or patronage

27  from a health care provider or health care facility;

28         (b)  Solicit or receive any commission, bonus, rebate,

29  kickback, or bribe, directly or indirectly, in cash or in

30  kind, or engage in any split-fee arrangement, in any form

31  

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 1  whatsoever, in return for referring patients or patronage to a

 2  health care provider or health care facility; or

 3         (c)  Solicit or receive any commission, bonus, rebate,

 4  kickback, or bribe, directly or indirectly, in cash or in

 5  kind, or engage in any split-fee arrangement, in any form

 6  whatsoever, in return for the acceptance or acknowledgement of

 7  treatment from a health care provider or health care facility;

 8  or

 9         (d)(c)  Aid, abet, advise, or otherwise participate in

10  the conduct prohibited under paragraph (a), or paragraph (b),

11  or paragraph (c).

12         (2)  For the purposes of this section, the term:

13         (a)  "Health care provider or health care facility"

14  means any person or entity licensed, certified, or registered;

15  required to be licensed, certified, or registered; or lawfully

16  exempt from licensure, certification, or registration with the

17  Agency for Health Care Administration; any person or entity

18  that has contracted with the Agency for Health Care

19  Administration to provide goods or services to Medicaid

20  recipients as provided under s. 409.907; a county health

21  department established under part I of chapter 154; any

22  community service provider contracting with the Department of

23  Children and Family Services to furnish alcohol, drug abuse,

24  or mental health services under part IV of chapter 394; any

25  substance abuse service provider licensed under chapter 397;

26  or any federally supported primary care program such as a

27  migrant or community health center authorized under ss. 329

28  and 330 of the United States Public Health Services Act.

29         Section 13.  Section 843.08, Florida Statutes, is

30  amended to read:

31  

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 1         843.08  Falsely personating officer, etc.--A person who

 2  falsely assumes or pretends to be a sheriff, officer of the

 3  Florida Highway Patrol, officer of the Fish and Wildlife

 4  Conservation Commission, officer of the Department of

 5  Environmental Protection, officer of the Department of

 6  Transportation, officer of the Department of Corrections,

 7  officer of the Department of Financial Services, correctional

 8  probation officer, deputy sheriff, state attorney or assistant

 9  state attorney, statewide prosecutor or assistant statewide

10  prosecutor, state attorney investigator, coroner, police

11  officer, lottery special agent or lottery investigator,

12  beverage enforcement agent, or watchman, or any member of the

13  Parole Commission and any administrative aide or supervisor

14  employed by the commission, or any personnel or representative

15  of the Department of Law Enforcement, and takes upon himself

16  or herself to act as such, or to require any other person to

17  aid or assist him or her in a matter pertaining to the duty of

18  any such officer, commits a felony of the third degree,

19  punishable as provided in s. 775.082, s. 775.083, or s.

20  775.084; however, a person who falsely personates any such

21  officer during the course of the commission of a felony

22  commits a felony of the second degree, punishable as provided

23  in s. 775.082, s. 775.083, or s. 775.084; except that if the

24  commission of the felony results in the death or personal

25  injury of another human being, the person commits a felony of

26  the first degree, punishable as provided in s. 775.082, s.

27  775.083, or s. 775.084.

28         Section 14.  If any provision of this act or its

29  application to any person or circumstance is held invalid, the

30  invalidity does not affect other provisions or applications of

31  the act which can be given effect without the invalid

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 1  provision or application, and to this end the provisions of

 2  this act are declared severable.

 3         Section 15.  This act shall take effect July 1, 2005.

 4  

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 6                          SENATE SUMMARY

 7    Prohibits a variety of actions, generally involving
      fraudulent practices relating to insurance. (See bill for
 8    details.)

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