| 1 | The Commerce Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to offenses involving insurance; amending |
| 7 | s. 400.9935, F.S.; prohibiting clinical directors from |
| 8 | engaging in certain patient referral activities; providing |
| 9 | a definition; providing a criminal penalty; requiring |
| 10 | health care clinics to display signs displaying certain |
| 11 | information relating to insurance fraud; authorizing |
| 12 | compliance inspections by the Division of Insurance Fraud; |
| 13 | requiring clinics to allow inspection access; amending s. |
| 14 | 440.105, F.S.; deleting violations of certain stop-work |
| 15 | orders from a list of employer activities subject to |
| 16 | criminal penalty; providing criminal penalties for |
| 17 | employers who fail to provide required workers' |
| 18 | compensation coverage for employees under certain |
| 19 | circumstances; amending s. 624.15, F.S.; specifying |
| 20 | violations of rules of the Department of Financial |
| 21 | Services, Office of Insurance Regulation, or Financial |
| 22 | Services Commission as misdemeanors; specifying a |
| 23 | violation of emergency rules or orders as a felony of the |
| 24 | third degree; providing penalties; providing for |
| 25 | nonapplication to certain persons; amending s. 624.155, |
| 26 | F.S.; providing that civil actions may be brought against |
| 27 | any person acting as an insurer without a certificate of |
| 28 | authority if damaged by such acting; amending s. 626.112, |
| 29 | F.S.; providing a criminal penalty for transacting |
| 30 | insurance without a license; amending s. 626.901, F.S.; |
| 31 | clarifying nonapplication to certain independently |
| 32 | procured coverage of a prohibition against representing or |
| 33 | aiding an unauthorized insurer; amending s. 626.918, F.S.; |
| 34 | providing that certain letters of credit issued or |
| 35 | confirmed by a qualified United States financial |
| 36 | institution may be used for certain purposes; providing a |
| 37 | definition; amending s. 626.938, F.S.; revising provisions |
| 38 | requiring a report and taxation of independently procured |
| 39 | coverages; specifying nonauthorization of independent |
| 40 | procurement of workers' compensation, life, or health |
| 41 | insurance; amending s. 626.989, F.S.; including self- |
| 42 | insured entities associated with the National Insurance |
| 43 | Crime Bureau within a list of entities required to report |
| 44 | insurance fraud; authorizing the division to adopt rules |
| 45 | for standardized reporting of fraudulent activity; |
| 46 | creating s. 626.9893, F.S.; authorizing the division to |
| 47 | deposit certain revenues into the Insurance Regulatory |
| 48 | Trust Fund; specifying accounting and uses of such |
| 49 | revenues; providing for appropriation and use of such |
| 50 | revenues; amending s. 817.234, F.S.; clarifying provisions |
| 51 | specifying material omission and insurance fraud; |
| 52 | prohibiting scheming to create documentation of a motor |
| 53 | vehicle crash that did not occur; providing a criminal |
| 54 | penalty; amending s. 817.2361, F.S.; providing that |
| 55 | creating, presenting, or marketing fraudulent proof of |
| 56 | motor vehicle insurance is a felony of the third degree; |
| 57 | amending s. 817.50, F.S.; specifying nonapplication of |
| 58 | provisions specifying evidence of intent to defraud to |
| 59 | certain investigative actions taken by law enforcement |
| 60 | officers; amending s. 817.505, F.S.; providing an |
| 61 | additional patient brokering prohibition; revising a |
| 62 | definition; amending s. 843.08, F.S.; providing a criminal |
| 63 | penalty for falsely assuming or pretending to be an |
| 64 | officer of the Department of Financial Services; amending |
| 65 | s. 932.7055, F.S.; requiring certain proceeds seized by |
| 66 | the division under the Florida Contraband Forfeiture Act |
| 67 | to be deposited into certain trust funds; providing |
| 68 | severability; providing an effective date. |
| 69 |
|
| 70 | Be It Enacted by the Legislature of the State of Florida: |
| 71 |
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| 72 | Section 1. Paragraph (h) is added to subsection (1) of |
| 73 | section 400.9935, Florida Statutes, and subsection (13) is added |
| 74 | to said section, to read: |
| 75 | 400.9935 Clinic responsibilities.-- |
| 76 | (1) Each clinic shall appoint a medical director or clinic |
| 77 | director who shall agree in writing to accept legal |
| 78 | responsibility for the following activities on behalf of the |
| 79 | clinic. The medical director or the clinic director shall: |
| 80 | (h) Not engage in referring patients to the clinic if the |
| 81 | clinic performs magnetic resonance imaging, static radiographs, |
| 82 | computed tomography, or positron emission tomography. The term |
| 83 | "referring patients" means referring one or more patients of the |
| 84 | medical or clinic director or a member of the medical or clinic |
| 85 | director's group practice to the clinic for magnetic resonance |
| 86 | imaging, static radiographs, computed tomography, or positron |
| 87 | emission tomography. A medical or clinic director who is found |
| 88 | to violate this paragraph commits a felony of the third degree, |
| 89 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
| 90 | (13) The clinic shall display a sign in a conspicuous |
| 91 | location within the clinic readily visible to all patients |
| 92 | indicating that, pursuant to s. 626.9892, the Department of |
| 93 | Financial Services may pay rewards of up to $25,000 to persons |
| 94 | providing information leading to the arrest and conviction of |
| 95 | persons committing crimes investigated by the Division of |
| 96 | Insurance Fraud arising from violations of s. 440.105, s. |
| 97 | 624.15, s. 626.9541, s. 626.989, or s. 817.234. An authorized |
| 98 | employee of the Division of Insurance Fraud may make unannounced |
| 99 | inspections of a clinic licensed under this part as necessary to |
| 100 | determine whether the clinic is in compliance with this |
| 101 | subsection. A licensed clinic shall allow full and complete |
| 102 | access to the premises to such authorized employee of the |
| 103 | division who makes an inspection to determine compliance with |
| 104 | this subsection. |
| 105 | Section 2. Subsections (2) and (4) of section 440.105, |
| 106 | Florida Statutes, are amended to read: |
| 107 | 440.105 Prohibited activities; reports; penalties; |
| 108 | limitations.-- |
| 109 | (2) Whoever violates any provision of this subsection |
| 110 | commits a misdemeanor of the first degree, punishable as |
| 111 | provided in s. 775.082 or s. 775.083. |
| 112 | (a) It shall be unlawful for any employer to knowingly: |
| 113 | 1. Coerce or attempt to coerce, as a precondition to |
| 114 | employment or otherwise, an employee to obtain a certificate of |
| 115 | election of exemption pursuant to s. 440.05. |
| 116 | 2. Discharge or refuse to hire an employee or job |
| 117 | applicant because the employee or applicant has filed a claim |
| 118 | for benefits under this chapter. |
| 119 | 3. Discharge, discipline, or take any other adverse |
| 120 | personnel action against any employee for disclosing information |
| 121 | to the department or any law enforcement agency relating to any |
| 122 | violation or suspected violation of any of the provisions of |
| 123 | this chapter or rules promulgated hereunder. |
| 124 | 4. Violate a stop-work order issued by the department |
| 125 | pursuant to s. 440.107. |
| 126 | (b) It shall be unlawful for any insurance entity to |
| 127 | revoke or cancel a workers' compensation insurance policy or |
| 128 | membership because an employer has returned an employee to work |
| 129 | or hired an employee who has filed a workers' compensation |
| 130 | claim. |
| 131 | (4) Unless otherwise specifically provided, whoever |
| 132 | violates any provision of this subsection commits insurance |
| 133 | fraud, punishable as provided in paragraph (f). |
| 134 | (a) It shall be unlawful for any employer to knowingly: |
| 135 | 1. Present or cause to be presented any false, fraudulent, |
| 136 | or misleading oral or written statement to any person as |
| 137 | evidence of compliance with s. 440.38. |
| 138 | 2. Make a deduction from the pay of any employee entitled |
| 139 | to the benefits of this chapter for the purpose of requiring the |
| 140 | employee to pay any portion of premium paid by the employer to a |
| 141 | carrier or to contribute to a benefit fund or department |
| 142 | maintained by such employer for the purpose of providing |
| 143 | compensation or medical services and supplies as required by |
| 144 | this chapter. |
| 145 | 3. Fail to secure workers' payment of compensation |
| 146 | coverage if required to do so by this chapter. |
| 147 | a. However, if an employer knowingly fails to secure |
| 148 | workers' compensation coverage for an employee as required by |
| 149 | this chapter, and such employee subsequently suffers a work- |
| 150 | related injury requiring medical treatment, the employer commits |
| 151 | a felony of the second degree, punishable as provided in s. |
| 152 | 775.082, s. 775.083, or s. 775.084. |
| 153 | b. However, if an employer knowingly fails to secure |
| 154 | workers' compensation coverage for an employee as required by |
| 155 | this chapter, and such employee subsequently suffers a work |
| 156 | related death, the employer commits a felony of the first |
| 157 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 158 | 775.084. |
| 159 | (b) It shall be unlawful for any person: |
| 160 | 1. To knowingly make, or cause to be made, any false, |
| 161 | fraudulent, or misleading oral or written statement for the |
| 162 | purpose of obtaining or denying any benefit or payment under |
| 163 | this chapter. |
| 164 | 2. To present or cause to be presented any written or oral |
| 165 | statement as part of, or in support of, a claim for payment or |
| 166 | other benefit pursuant to any provision of this chapter, knowing |
| 167 | that such statement contains any false, incomplete, or |
| 168 | misleading information concerning any fact or thing material to |
| 169 | such claim. |
| 170 | 3. To prepare or cause to be prepared any written or oral |
| 171 | statement that is intended to be presented to any employer, |
| 172 | insurance company, or self-insured program in connection with, |
| 173 | or in support of, any claim for payment or other benefit |
| 174 | pursuant to any provision of this chapter, knowing that such |
| 175 | statement contains any false, incomplete, or misleading |
| 176 | information concerning any fact or thing material to such claim. |
| 177 | 4. To knowingly assist, conspire with, or urge any person |
| 178 | to engage in activity prohibited by this section. |
| 179 | 5. To knowingly make any false, fraudulent, or misleading |
| 180 | oral or written statement, or to knowingly omit or conceal |
| 181 | material information, required by s. 440.185 or s. 440.381, for |
| 182 | the purpose of obtaining workers' compensation coverage or for |
| 183 | the purpose of avoiding, delaying, or diminishing the amount of |
| 184 | payment of any workers' compensation premiums. |
| 185 | 6. To knowingly misrepresent or conceal payroll, |
| 186 | classification of workers, or information regarding an |
| 187 | employer's loss history which would be material to the |
| 188 | computation and application of an experience rating modification |
| 189 | factor for the purpose of avoiding or diminishing the amount of |
| 190 | payment of any workers' compensation premiums. |
| 191 | 7. To knowingly present or cause to be presented any |
| 192 | false, fraudulent, or misleading oral or written statement to |
| 193 | any person as evidence of compliance with s. 440.38, as evidence |
| 194 | of eligibility for a certificate of exemption under s. 440.05. |
| 195 | 8. To knowingly violate a stop-work order issued by the |
| 196 | department pursuant to s. 440.107. |
| 197 | 9. To knowingly present or cause to be presented any |
| 198 | false, fraudulent, or misleading oral or written statement to |
| 199 | any person as evidence of identity for the purpose of obtaining |
| 200 | employment or filing or supporting a claim for workers' |
| 201 | compensation benefits. |
| 202 | (c) It shall be unlawful for any physician licensed under |
| 203 | chapter 458, osteopathic physician licensed under chapter 459, |
| 204 | chiropractic physician licensed under chapter 460, podiatric |
| 205 | physician licensed under chapter 461, optometric physician |
| 206 | licensed under chapter 463, or any other practitioner licensed |
| 207 | under the laws of this state to knowingly and willfully assist, |
| 208 | conspire with, or urge any person to fraudulently violate any of |
| 209 | the provisions of this chapter. |
| 210 | (d) It shall be unlawful for any person or governmental |
| 211 | entity licensed under chapter 395 to maintain or operate a |
| 212 | hospital in such a manner so that such person or governmental |
| 213 | entity knowingly and willfully allows the use of the facilities |
| 214 | of such hospital by any person, in a scheme or conspiracy to |
| 215 | fraudulently violate any of the provisions of this chapter. |
| 216 | (e) It shall be unlawful for any attorney or other person, |
| 217 | in his or her individual capacity or in his or her capacity as a |
| 218 | public or private employee, or any firm, corporation, |
| 219 | partnership, or association, to knowingly assist, conspire with, |
| 220 | or urge any person to fraudulently violate any of the provisions |
| 221 | of this chapter. |
| 222 | (f) If the monetary value of any violation of this |
| 223 | subsection: |
| 224 | 1. Is less than $20,000, the offender commits a felony of |
| 225 | the third degree, punishable as provided in s. 775.082, s. |
| 226 | 775.083, or s. 775.084. |
| 227 | 2. Is $20,000 or more, but less than $100,000, the |
| 228 | offender commits a felony of the second degree, punishable as |
| 229 | provided in s. 775.082, s. 775.083, or s. 775.084. |
| 230 | 3. Is $100,000 or more, the offender commits a felony of |
| 231 | the first degree, punishable as provided in s. 775.082, s. |
| 232 | 775.083, or s. 775.084. |
| 233 | Section 3. Section 624.15, Florida Statutes, is amended to |
| 234 | read: |
| 235 | 624.15 General penalty.-- |
| 236 | (1) Each willful violation of this code or rule of the |
| 237 | department, office, or commission as to which a greater penalty |
| 238 | is not provided by another provision of this code, rule of the |
| 239 | department, office, or commission or by other applicable laws of |
| 240 | this state is a misdemeanor of the second degree and is, in |
| 241 | addition to any prescribed applicable denial, suspension, or |
| 242 | revocation of certificate of authority, license, or permit, |
| 243 | punishable as provided in s. 775.082 or s. 775.083. Each |
| 244 | instance of such violation shall be considered a separate |
| 245 | offense. |
| 246 | (2) Each willful violation of an emergency rule or order |
| 247 | of the department, office, or commission by a person who is not |
| 248 | licensed, authorized, or eligible to engage in business in |
| 249 | accordance with the Florida Insurance Code is a felony of the |
| 250 | third degree, punishable as provided in s. 775.082, s. 775.083, |
| 251 | or s. 775.084. Each instance of such violation is a separate |
| 252 | offense. This subsection does not apply to licensees or |
| 253 | affiliated parties of licensees. |
| 254 | Section 4. Subsection (2) of section 624.155, Florida |
| 255 | Statutes, is amended to read: |
| 256 | 624.155 Civil remedy.-- |
| 257 | (2) Any party may bring a civil action against any person |
| 258 | acting as an unauthorized insurer without a certificate of |
| 259 | authority if such party is damaged by a violation of s. 624.401 |
| 260 | by that person the unauthorized insurer. |
| 261 | Section 5. Subsection (9) is added to section 626.112, |
| 262 | Florida Statutes, to read: |
| 263 | 626.112 License and appointment required; agents, customer |
| 264 | representatives, adjusters, insurance agencies, service |
| 265 | representatives, managing general agents.-- |
| 266 | (9) Any person who transacts insurance or otherwise |
| 267 | engages in insurance activities in this state without a license |
| 268 | in violation of this section commits a felony of the third |
| 269 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 270 | 775.084. |
| 271 | Section 6. Paragraph (d) of subsection (4) of section |
| 272 | 626.901, Florida Statutes, is amended to read: |
| 273 | 626.901 Representing or aiding unauthorized insurer |
| 274 | prohibited.-- |
| 275 | (4) This section does not apply to: |
| 276 | (d) Independently procured coverage written pursuant to s. |
| 277 | 626.938, which is not solicited, marketed, negotiated, or sold |
| 278 | within this state. |
| 279 | Section 7. Section 626.918, Florida Statutes, is amended |
| 280 | to read: |
| 281 | 626.918 Eligible surplus lines insurers.-- |
| 282 | (1) A No surplus lines agent may not shall place any |
| 283 | coverage with any unauthorized insurer which is not then an |
| 284 | eligible surplus lines insurer, except as permitted under |
| 285 | subsections (6)(5) and (7)(6). |
| 286 | (2) An No unauthorized insurer may not shall be or become |
| 287 | an eligible surplus lines insurer unless made eligible by the |
| 288 | office in accordance with the following conditions: |
| 289 | (a) Eligibility of the insurer must be requested in |
| 290 | writing by the Florida Surplus Lines Service Office; |
| 291 | (b) The insurer must be currently an authorized insurer in |
| 292 | the state or country of its domicile as to the kind or kinds of |
| 293 | insurance proposed to be so placed and must have been such an |
| 294 | insurer for not less than the 3 years next preceding or must be |
| 295 | the wholly owned subsidiary of such authorized insurer or must |
| 296 | be the wholly owned subsidiary of an already eligible surplus |
| 297 | lines insurer as to the kind or kinds of insurance proposed for |
| 298 | a period of not less than the 3 years next preceding. However, |
| 299 | the office may waive the 3-year requirement if the insurer |
| 300 | provides a product or service not readily available to the |
| 301 | consumers of this state or has operated successfully for a |
| 302 | period of at least 1 year next preceding and has capital and |
| 303 | surplus of not less than $25 million; |
| 304 | (c) Before granting eligibility, the requesting surplus |
| 305 | lines agent or the insurer shall furnish the office with a duly |
| 306 | authenticated copy of its current annual financial statement in |
| 307 | the English language and with all monetary values therein |
| 308 | expressed in United States dollars, at an exchange rate (in the |
| 309 | case of statements originally made in the currencies of other |
| 310 | countries) then-current and shown in the statement, and with |
| 311 | such additional information relative to the insurer as the |
| 312 | office may request; |
| 313 | (d)1. The insurer must have and maintain surplus as to |
| 314 | policyholders of not less than $15 million; in addition, an |
| 315 | alien insurer must also have and maintain in the United States a |
| 316 | trust fund for the protection of all its policyholders in the |
| 317 | United States under terms deemed by the office to be reasonably |
| 318 | adequate, in an amount not less than $5.4 million. Any such |
| 319 | surplus as to policyholders or trust fund shall be represented |
| 320 | by investments consisting of eligible investments for like funds |
| 321 | of like domestic insurers under part II of chapter 625 provided, |
| 322 | however, that in the case of an alien insurance company, any |
| 323 | such surplus as to policyholders may be represented by |
| 324 | investments permitted by the domestic regulator of such alien |
| 325 | insurance company if such investments are substantially similar |
| 326 | in terms of quality, liquidity, and security to eligible |
| 327 | investments for like funds of like domestic insurers under part |
| 328 | II of chapter 625. Clean, irrevocable, unconditional, and |
| 329 | evergreen letters of credit issued or confirmed by a qualified |
| 330 | United States financial institution, as defined in subsection |
| 331 | (3), may be used to fund the trust; |
| 332 | 2. For those surplus lines insurers that were eligible on |
| 333 | January 1, 1994, and that maintained their eligibility |
| 334 | thereafter, the required surplus as to policyholders shall be: |
| 335 | a. On December 31, 1994, and until December 30, 1995, $2.5 |
| 336 | million. |
| 337 | b. On December 31, 1995, and until December 30, 1996, $3.5 |
| 338 | million. |
| 339 | c. On December 31, 1996, and until December 30, 1997, $4.5 |
| 340 | million. |
| 341 | d. On December 31, 1997, and until December 30, 1998, $5.5 |
| 342 | million. |
| 343 | e. On December 31, 1998, and until December 30, 1999, $6.5 |
| 344 | million. |
| 345 | f. On December 31, 1999, and until December 30, 2000, $8 |
| 346 | million. |
| 347 | g. On December 31, 2000, and until December 30, 2001, $9.5 |
| 348 | million. |
| 349 | h. On December 31, 2001, and until December 30, 2002, $11 |
| 350 | million. |
| 351 | i. On December 31, 2002, and until December 30, 2003, $13 |
| 352 | million. |
| 353 | j. On December 31, 2003, and thereafter, $15 million. |
| 354 | 3. The capital and surplus requirements as set forth in |
| 355 | subparagraph 2. do not apply in the case of an insurance |
| 356 | exchange created by the laws of individual states, where the |
| 357 | exchange maintains capital and surplus pursuant to the |
| 358 | requirements of that state, or maintains capital and surplus in |
| 359 | an amount not less than $50 million in the aggregate. For an |
| 360 | insurance exchange which maintains funds in the amount of at |
| 361 | least $12 million for the protection of all insurance exchange |
| 362 | policyholders, each individual syndicate shall maintain minimum |
| 363 | capital and surplus in an amount not less than $3 million. If |
| 364 | the insurance exchange does not maintain funds in the amount of |
| 365 | at least $12 million for the protection of all insurance |
| 366 | exchange policyholders, each individual syndicate shall meet the |
| 367 | minimum capital and surplus requirements set forth in |
| 368 | subparagraph 2.; |
| 369 | 4. A surplus lines insurer which is a member of an |
| 370 | insurance holding company that includes a member which is a |
| 371 | Florida domestic insurer as set forth in its holding company |
| 372 | registration statement, as set forth in s. 628.801 and rules |
| 373 | adopted thereunder, may elect to maintain surplus as to |
| 374 | policyholders in an amount equal to the requirements of s. |
| 375 | 624.408, subject to the requirement that the surplus lines |
| 376 | insurer shall at all times be in compliance with the |
| 377 | requirements of chapter 625. |
| 378 |
|
| 379 | The election shall be submitted to the office and shall be |
| 380 | effective upon the office's being satisfied that the |
| 381 | requirements of subparagraph 4. have been met. The initial date |
| 382 | of election shall be the date of office approval. The election |
| 383 | approval application shall be on a form adopted by commission |
| 384 | rule. The office may approve an election form submitted pursuant |
| 385 | to subparagraph 4. only if it was on file with the former |
| 386 | Department of Insurance before February 28, 1998; |
| 387 | (e) The insurer must be of good reputation as to the |
| 388 | providing of service to its policyholders and the payment of |
| 389 | losses and claims; |
| 390 | (f) The insurer must be eligible, as for authority to |
| 391 | transact insurance in this state, under s. 624.404(3); and |
| 392 | (g) This subsection does not apply as to unauthorized |
| 393 | insurers made eligible under s. 626.917 as to wet marine and |
| 394 | aviation risks. |
| 395 | (3) For purposes of subsection (2) relating to letters of |
| 396 | credit, the term "qualified United States financial institution" |
| 397 | means an institution that: |
| 398 | (a) Is organized or, in the case of a United States office |
| 399 | of a foreign banking organization, is licensed under the laws of |
| 400 | the United States or any state thereof. |
| 401 | (b) Is regulated, supervised, and examined by United |
| 402 | States or state authorities having regulatory authority over |
| 403 | banks and trust companies. |
| 404 | (c) Has been determined by the office or the Securities |
| 405 | Valuation Office of the National Association of Insurance |
| 406 | Commissioners to meet such standards of financial condition and |
| 407 | standing as are considered necessary and appropriate to regulate |
| 408 | the quality of financial institutions whose letters of credit |
| 409 | are acceptable to the office. |
| 410 | (4)(3) The office shall from time to time publish a list |
| 411 | of all currently eligible surplus lines insurers and shall mail |
| 412 | a copy thereof to each licensed surplus lines agent at his or |
| 413 | her office of record with the office. |
| 414 | (5)(4) This section shall not be deemed to cast upon the |
| 415 | office any duty or responsibility to determine the actual |
| 416 | financial condition or claims practices of any unauthorized |
| 417 | insurer; and the status of eligibility, if granted by the |
| 418 | office, shall indicate only that the insurer appears to be sound |
| 419 | financially and to have satisfactory claims practices and that |
| 420 | the office has no credible evidence to the contrary. |
| 421 | (6)(5) When it appears that any particular insurance risk |
| 422 | which is eligible for export, but on which insurance coverage, |
| 423 | in whole or in part, is not procurable from the eligible surplus |
| 424 | lines insurers, after a search of eligible surplus lines |
| 425 | insurers, then the surplus lines agent may file a supplemental |
| 426 | signed statement setting forth such facts and advising the |
| 427 | office that such part of the risk as shall be unprocurable, as |
| 428 | aforesaid, is being placed with named unauthorized insurers, in |
| 429 | the amounts and percentages set forth in the statement. Such |
| 430 | named unauthorized insurer shall, however, before accepting any |
| 431 | risk in this state, deposit with the department cash or |
| 432 | securities acceptable to the office and department of the market |
| 433 | value of $50,000 for each individual risk, contract, or |
| 434 | certificate, which deposit shall be held by the department for |
| 435 | the benefit of Florida policyholders only; and the surplus lines |
| 436 | agent shall procure from such unauthorized insurer and file with |
| 437 | the office a certified copy of its statement of condition as of |
| 438 | the close of the last calendar year. If such statement reveals, |
| 439 | including both capital and surplus, net assets of at least that |
| 440 | amount required for licensure of a domestic insurer, then the |
| 441 | surplus lines agent may proceed to consummate such contract of |
| 442 | insurance. Whenever any insurance risk, or any part thereof, is |
| 443 | placed with an unauthorized insurer, as provided herein, the |
| 444 | policy, binder, or cover note shall contain a statement signed |
| 445 | by the insured and the agent with the following notation: "The |
| 446 | insured is aware that certain insurers participating in this |
| 447 | risk have not been approved to transact business in Florida nor |
| 448 | have they been declared eligible as surplus lines insurers by |
| 449 | the Office of Insurance Regulation of Florida. The placing of |
| 450 | such insurance by a duly licensed surplus lines agent in Florida |
| 451 | shall not be construed as approval of such insurer by the Office |
| 452 | of Insurance Regulation of Florida. Consequently, the insured is |
| 453 | aware that the insured has severely limited the assistance |
| 454 | available under the insurance laws of Florida. The insured is |
| 455 | further aware that he or she may be charged a reasonable per |
| 456 | policy fee, as provided in s. 626.916(4), Florida Statutes, for |
| 457 | each policy certified for export." All other provisions of this |
| 458 | code shall apply to such placement the same as if such risks |
| 459 | were placed with an eligible surplus lines insurer. |
| 460 | (7)(6) When any particular insurance risk subject to |
| 461 | subsection (6)(5) is eligible for placement with an unauthorized |
| 462 | insurer and not more than 12.5 percent of the risk is so |
| 463 | subject, the office may, at its discretion, permit the agent to |
| 464 | obtain from the insured a signed statement as indicated in |
| 465 | subsection (6)(5). All other provisions of this code apply to |
| 466 | such placement the same as if such risks were placed with an |
| 467 | eligible surplus lines insurer. |
| 468 | Section 8. Subsections (1), (2), and (9) of section |
| 469 | 626.938, Florida Statutes, are amended to read: |
| 470 | 626.938 Report and tax of independently procured |
| 471 | coverages.-- |
| 472 | (1) Every insured who resides in this state and procures |
| 473 | or causes to be procured or continues or renews insurance from |
| 474 | another state or country with an unauthorized foreign or alien |
| 475 | insurer legitimately licensed in that jurisdiction, or any self- |
| 476 | insurer who resides in this state and so procures or continues |
| 477 | excess loss, catastrophe, or other insurance, upon a subject of |
| 478 | insurance resident, located, or to be performed within this |
| 479 | state, other than insurance procured through a surplus lines |
| 480 | agent pursuant to the Surplus Lines Law of this state or |
| 481 | exempted from tax under s. 626.932(4), shall, within 30 days |
| 482 | after the date such insurance was so procured, continued, or |
| 483 | renewed, file a report of the same with the Florida Surplus |
| 484 | Lines Service Office in writing and upon forms designated by the |
| 485 | Florida Surplus Lines Service Office and furnished to such an |
| 486 | insured upon request, or in a computer readable format as |
| 487 | determined by the Florida Surplus Lines Service Office. The |
| 488 | report shall show the name and address of the insured or |
| 489 | insureds, the name and address of the insurer, the subject of |
| 490 | the insurance, a general description of the coverage, the amount |
| 491 | of premium currently charged therefor, and such additional |
| 492 | pertinent information as is reasonably requested by the Florida |
| 493 | Surplus Lines Service Office. |
| 494 | (2) Any insurance in an unauthorized insurer legitimately |
| 495 | licensed in another state or country procured through |
| 496 | solicitations, negotiations, or an application, in whole or in |
| 497 | part occurring or made outside within or from within this state, |
| 498 | or for which premiums in whole or in part are remitted directly |
| 499 | or indirectly from within this state, shall be deemed to be |
| 500 | insurance procured, continued, or renewed in this state within |
| 501 | the intent of subsection (1). |
| 502 | (9) This section does not authorize independent |
| 503 | procurement of workers' compensation insurance, apply as to life |
| 504 | insurance, or health insurance. |
| 505 | Section 9. Subsection (6) of section 626.989, Florida |
| 506 | Statutes, is amended to read: |
| 507 | 626.989 Investigation by department or Division of |
| 508 | Insurance Fraud; compliance; immunity; confidential information; |
| 509 | reports to division; division investigator's power of arrest.-- |
| 510 | (6) Any person, other than an insurer, agent, or other |
| 511 | person licensed under the code, or an employee thereof, having |
| 512 | knowledge or who believes that a fraudulent insurance act or any |
| 513 | other act or practice which, upon conviction, constitutes a |
| 514 | felony or a misdemeanor under the code, or under s. 817.234, is |
| 515 | being or has been committed may send to the Division of |
| 516 | Insurance Fraud a report or information pertinent to such |
| 517 | knowledge or belief and such additional information relative |
| 518 | thereto as the department may request. However, any professional |
| 519 | practitioner licensed or regulated by the Department of Business |
| 520 | and Professional Regulation, except as otherwise provided by |
| 521 | law, any medical review committee as defined in s. 766.101, any |
| 522 | private medical review committee, any self-insured entity |
| 523 | contracting or associated with the National Insurance Crime |
| 524 | Bureau, and any insurer, agent, or other person licensed under |
| 525 | the code, or an employee thereof, having knowledge or who |
| 526 | believes that a fraudulent insurance act or any other act or |
| 527 | practice which, upon conviction, constitutes a felony or a |
| 528 | misdemeanor under the code, or under s. 817.234, is being or has |
| 529 | been committed shall send to the Division of Insurance Fraud a |
| 530 | report or information pertinent to such knowledge or belief and |
| 531 | such additional information relative thereto as the department |
| 532 | may require. The Division of Insurance Fraud shall review such |
| 533 | information or reports and select such information or reports |
| 534 | as, in its judgment, may require further investigation. It shall |
| 535 | then cause an independent examination of the facts surrounding |
| 536 | such information or report to be made to determine the extent, |
| 537 | if any, to which a fraudulent insurance act or any other act or |
| 538 | practice which, upon conviction, constitutes a felony or a |
| 539 | misdemeanor under the code, or under s. 817.234, is being |
| 540 | committed. The Division of Insurance Fraud shall report any |
| 541 | alleged violations of law which its investigations disclose to |
| 542 | the appropriate licensing agency and state attorney or other |
| 543 | prosecuting agency having jurisdiction with respect to any such |
| 544 | violation, as provided in s. 624.310. If prosecution by the |
| 545 | state attorney or other prosecuting agency having jurisdiction |
| 546 | with respect to such violation is not begun within 60 days of |
| 547 | the division's report, the state attorney or other prosecuting |
| 548 | agency having jurisdiction with respect to such violation shall |
| 549 | inform the division of the reasons for the lack of prosecution. |
| 550 | The division may adopt rules which set forth requirements for |
| 551 | the manner in which suspected fraudulent activity shall be |
| 552 | reported to the division through the use of a standard referral |
| 553 | form. |
| 554 | Section 10. Section 626.9893, Florida Statutes, is created |
| 555 | to read: |
| 556 | 626.9893 Disposition of revenues; criminal or forfeiture |
| 557 | proceedings.-- |
| 558 | (1) The Division of Insurance Fraud of the Department of |
| 559 | Financial Services may deposit revenues received as a result of |
| 560 | criminal proceedings or forfeiture proceedings, other than |
| 561 | revenues deposited into the Department of Financial Services' |
| 562 | Federal Equitable Sharing Trust Fund under s. 17.43, into the |
| 563 | Insurance Regulatory Trust Fund. Moneys deposited pursuant to |
| 564 | this section shall be separately accounted for and shall be used |
| 565 | solely for the division to carry out its duties and |
| 566 | responsibilities. |
| 567 | (2) Moneys deposited into the Insurance Regulatory Trust |
| 568 | Fund pursuant to this section shall be appropriated by the |
| 569 | Legislature, pursuant to the provisions of chapter 216, for the |
| 570 | sole purpose of enabling the division to carry out its duties |
| 571 | and responsibilities. |
| 572 | (3) Notwithstanding the provisions of s. 216.301 and |
| 573 | pursuant to s. 216.351, any balance of moneys deposited into the |
| 574 | Insurance Regulatory Trust Fund pursuant to this section |
| 575 | remaining at the end of any fiscal year shall remain in the |
| 576 | trust fund at the end of that year and shall be available for |
| 577 | carrying out the duties and responsibilities of the division. |
| 578 | Section 11. Paragraph (a) of subsection (7) and subsection |
| 579 | (9) of section 817.234, Florida Statutes, are amended to read: |
| 580 | 817.234 False and fraudulent insurance claims.-- |
| 581 | (7)(a) It shall constitute a material omission and |
| 582 | insurance fraud, punishable as provided in subsection (11), for |
| 583 | any service physician or other provider, other than a hospital, |
| 584 | to engage in a general business practice of billing amounts as |
| 585 | its usual and customary charge, if such provider has agreed with |
| 586 | the insured patient or intends to waive deductibles or |
| 587 | copayments, or does not for any other reason intend to collect |
| 588 | the total amount of such charge. With respect to a determination |
| 589 | as to whether a service physician or other provider has engaged |
| 590 | in such general business practice, consideration shall be given |
| 591 | to evidence of whether the service physician or other provider |
| 592 | made a good faith attempt to collect such deductible or |
| 593 | copayment. This paragraph does not apply to physicians or other |
| 594 | providers who waive deductibles or copayments or reduce their |
| 595 | bills as part of a bodily injury settlement or verdict. |
| 596 | (9) A person may not organize, plan, or knowingly |
| 597 | participate in an intentional motor vehicle crash or a scheme to |
| 598 | create documentation of a motor vehicle crash that did not occur |
| 599 | for the purpose of making motor vehicle tort claims or claims |
| 600 | for personal injury protection benefits as required by s. |
| 601 | 627.736. Any person who violates this subsection commits a |
| 602 | felony of the second degree, punishable as provided in s. |
| 603 | 775.082, s. 775.083, or s. 775.084. A person who is convicted of |
| 604 | a violation of this subsection shall be sentenced to a minimum |
| 605 | term of imprisonment of 2 years. |
| 606 | Section 12. Section 817.2361, Florida Statutes, is amended |
| 607 | to read: |
| 608 | 817.2361 False or fraudulent proof of motor vehicle |
| 609 | insurance card.--Any person who, with intent to deceive any |
| 610 | other person, creates, markets, or presents a false or |
| 611 | fraudulent proof of motor vehicle insurance card commits a |
| 612 | felony of the third degree, punishable as provided in s. |
| 613 | 775.082, s. 775.083, or s. 775.084. |
| 614 | Section 13. Subsection (2) of section 817.50, Florida |
| 615 | Statutes, is amended to read: |
| 616 | 817.50 Fraudulently obtaining goods, services, etc., from |
| 617 | a health care provider.-- |
| 618 | (2) If any person gives to any health care provider in |
| 619 | this state a false or fictitious name or a false or fictitious |
| 620 | address or assigns to any health care provider the proceeds of |
| 621 | any health maintenance contract or insurance contract, then |
| 622 | knowing that such contract is no longer in force, is invalid, or |
| 623 | is void for any reason, such action shall be prima facie |
| 624 | evidence of the intent of such person to defraud the health care |
| 625 | provider. However, this subsection does not apply to |
| 626 | investigative actions taken by law enforcement officers for law |
| 627 | enforcement purposes in the course of their official duties. |
| 628 | Section 14. Subsection (1) and paragraph (a) of subsection |
| 629 | (2) of section 817.505, Florida Statutes, are amended to read: |
| 630 | 817.505 Patient brokering prohibited; exceptions; |
| 631 | penalties.-- |
| 632 | (1) It is unlawful for any person, including any health |
| 633 | care provider or health care facility, to: |
| 634 | (a) Offer or pay any commission, bonus, rebate, kickback, |
| 635 | or bribe, directly or indirectly, in cash or in kind, or engage |
| 636 | in any split-fee arrangement, in any form whatsoever, to induce |
| 637 | the referral of patients or patronage to or from a health care |
| 638 | provider or health care facility; |
| 639 | (b) Solicit or receive any commission, bonus, rebate, |
| 640 | kickback, or bribe, directly or indirectly, in cash or in kind, |
| 641 | or engage in any split-fee arrangement, in any form whatsoever, |
| 642 | in return for referring patients or patronage to or from a |
| 643 | health care provider or health care facility; or |
| 644 | (c) Solicit or receive any commission, bonus, rebate, |
| 645 | kickback, or bribe, directly or indirectly, in cash or in kind, |
| 646 | or engage in any split-fee arrangement, in any form whatsoever, |
| 647 | in return for the acceptance or acknowledgement of treatment |
| 648 | from a health care provider or health care facility; or |
| 649 | (d)(c) Aid, abet, advise, or otherwise participate in the |
| 650 | conduct prohibited under paragraph (a), or paragraph (b), or |
| 651 | paragraph (c). |
| 652 | (2) For the purposes of this section, the term: |
| 653 | (a) "Health care provider or health care facility" means |
| 654 | any person or entity licensed, certified, or registered; |
| 655 | required to be licensed, certified, or registered; or lawfully |
| 656 | exempt from being required to be licensed, certified, or |
| 657 | registered with the Agency for Health Care Administration; any |
| 658 | person or entity that has contracted with the Agency for Health |
| 659 | Care Administration to provide goods or services to Medicaid |
| 660 | recipients as provided under s. 409.907; a county health |
| 661 | department established under part I of chapter 154; any |
| 662 | community service provider contracting with the Department of |
| 663 | Children and Family Services to furnish alcohol, drug abuse, or |
| 664 | mental health services under part IV of chapter 394; any |
| 665 | substance abuse service provider licensed under chapter 397; or |
| 666 | any federally supported primary care program such as a migrant |
| 667 | or community health center authorized under ss. 329 and 330 of |
| 668 | the United States Public Health Services Act. |
| 669 | Section 15. Section 843.08, Florida Statutes, is amended |
| 670 | to read: |
| 671 | 843.08 Falsely personating officer, etc.--A person who |
| 672 | falsely assumes or pretends to be a sheriff, officer of the |
| 673 | Florida Highway Patrol, officer of the Fish and Wildlife |
| 674 | Conservation Commission, officer of the Department of |
| 675 | Environmental Protection, officer of the Department of |
| 676 | Transportation, officer of the Department of Financial Services, |
| 677 | officer of the Department of Corrections, correctional probation |
| 678 | officer, deputy sheriff, state attorney or assistant state |
| 679 | attorney, statewide prosecutor or assistant statewide |
| 680 | prosecutor, state attorney investigator, coroner, police |
| 681 | officer, lottery special agent or lottery investigator, beverage |
| 682 | enforcement agent, or watchman, or any member of the Parole |
| 683 | Commission and any administrative aide or supervisor employed by |
| 684 | the commission, or any personnel or representative of the |
| 685 | Department of Law Enforcement, and takes upon himself or herself |
| 686 | to act as such, or to require any other person to aid or assist |
| 687 | him or her in a matter pertaining to the duty of any such |
| 688 | officer, commits a felony of the third degree, punishable as |
| 689 | provided in s. 775.082, s. 775.083, or s. 775.084; however, a |
| 690 | person who falsely personates any such officer during the course |
| 691 | of the commission of a felony commits a felony of the second |
| 692 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 693 | 775.084; except that if the commission of the felony results in |
| 694 | the death or personal injury of another human being, the person |
| 695 | commits a felony of the first degree, punishable as provided in |
| 696 | s. 775.082, s. 775.083, or s. 775.084. |
| 697 | Section 16. Paragraph (m) is added to subsection (6) of |
| 698 | section 932.7055, Florida Statutes, to read: |
| 699 | 932.7055 Disposition of liens and forfeited property.-- |
| 700 | (6) If the seizing agency is a state agency, all remaining |
| 701 | proceeds shall be deposited into the General Revenue Fund. |
| 702 | However, if the seizing agency is: |
| 703 | (m) The Division of Insurance Fraud of the Department of |
| 704 | Financial Services, the proceeds accrued pursuant to the |
| 705 | provisions of the Florida Contraband Forfeiture Act shall be |
| 706 | deposited into Insurance Regulatory Trust Fund as provided in s. |
| 707 | 626.9893 or into the Department of Financial Services' Federal |
| 708 | Equitable Sharing Trust Fund as provided in s. 17.43, as |
| 709 | applicable. |
| 710 | Section 17. If any provision of this act or the |
| 711 | application thereof to any person or circumstance is held |
| 712 | invalid, the invalidity does not affect other provisions or |
| 713 | applications of the act which can be given effect without the |
| 714 | invalid provision or application, and to this end, the |
| 715 | provisions of this act are declared severable. |
| 716 | Section 18. This act shall take effect July 1, 2005. |