Senate Bill sb1660

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    Florida Senate - 2007                                  SB 1660

    By Senator Peaden





    2-878-07

  1                      A bill to be entitled

  2         An act relating to insurance; creating s.

  3         624.156, F.S.; prescribing applicability of

  4         consumer protection laws to the business of

  5         insurance; amending s. 627.062, F.S.; revising

  6         determination of rate standards for medical

  7         malpractice insurance; repealing s.

  8         627.4147(2), F.S.; deleting a provision that

  9         medical malpractice insureds may be required by

10         their insurers to be members of certain

11         professional societies; amending s. 627.912,

12         F.S.; requiring that certain information be

13         included in reports related to professional

14         liability claims and actions; authorizing the

15         director of the Office of Insurance Regulation

16         to levy an administrative fine against an

17         insurer that fails to comply with reporting

18         requirements; creating s. 627.41491, F.S.;

19         requiring the office to provide certain

20         information concerning medical malpractice

21         coverage providers; creating s. 627.41493,

22         F.S.; requiring a rate rollback for medical

23         malpractice insurance; amending s. 627.41495,

24         F.S.; requiring notice of and providing for

25         hearings on rate changes by medical malpractice

26         insurance providers; prescribing authority of

27         the Public Counsel with respect thereto;

28         declaring legislative intent with respect to

29         medical malpractice rates; authorizing the

30         Office of Insurance Regulation to adopt rules;

31         providing an effective date.

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    Florida Senate - 2007                                  SB 1660
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 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Section 624.156, Florida Statutes, is

 4  created to read:

 5         624.156  Applicability of consumer protection laws to

 6  the business of insurance.--Notwithstanding any provision of

 7  law to the contrary, the business of insurance is subject to

 8  the Florida Civil Rights Act of 1992, ss. 760.01-760.11 and

 9  509.092, and the Florida Deceptive and Unfair Trade Practices

10  Act, ss. 501.201-501.213, and the protections afforded

11  consumers in these statutes apply to insurance consumers.

12         Section 2.  Paragraph (e) of subsection (7) of section

13  627.062, Florida Statutes, as amended by section 18 of chapter

14  2007-1, Laws of Florida, is amended, present paragraph (f) of

15  that subsection is redesignated as paragraph (g), and a new

16  paragraph (f) is added to that subsection to read:

17         627.062  Rate standards.--

18         (7)

19         (e)  The insurer must apply a discount or surcharge,

20  exclusive of any other discounts, credits, or rate

21  differentials, based on the health care provider's loss

22  experience and disciplinary action taken by the federal or

23  state government or health care facility or health care plan

24  or shall establish an alternative method giving due

25  consideration to the provider's loss experience and

26  disciplinary record. The insurer must include in the filing a

27  copy of the surcharge or discount schedule or a description of

28  the alternative method used, and must provide a copy of such

29  schedule or description, as approved by the office, to

30  policyholders at the time of renewal and to prospective

31  policyholders at the time of application for coverage. A

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    Florida Senate - 2007                                  SB 1660
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 1  medical malpractice liability insurer may not use any rate or

 2  charge any premium unless the insurer has filed such schedule

 3  or alternative method with the director and the director has

 4  approved such schedule or alternative method. The Office of

 5  Insurance Regulation shall adopt a schedule of appropriate

 6  ranges for such credits, discounts, or alternative methods of

 7  rate reduction which will bring premium relief to providers

 8  who have experienced no closed claims or limited indemnity and

 9  expense payments over a specified period of time as determined

10  by the office.

11         (f)  In reviewing any rate filing under this

12  subsection, the office shall consider as part of the insurer's

13  rate base the insurer's loss cost adjustment expenses or

14  defense cost and containment expenses only to the extent that

15  the expenses do not exceed the national average for such

16  expenses, as determined by the office, for the prior calendar

17  year. An insurer's loss cost adjustment expenses or defense

18  cost and containment expenses in excess of the national

19  average may not be used to justify a rate or rate change.

20         Section 3.  Subsection (2) of section 627.4147, Florida

21  Statutes, is repealed.

22         Section 4.  Section 627.912, Florida Statutes, is

23  amended to read:

24         627.912  Professional liability claims and actions;

25  reports by insurers and health care providers; annual report

26  by office.--

27         (1)(a)  Each self-insurer authorized under s. 627.357

28  and each commercial self-insurance fund authorized under s.

29  624.462, authorized insurer, surplus lines insurer, risk

30  retention group, and joint underwriting association providing

31  professional liability insurance to a practitioner of medicine

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 1  licensed under chapter 458, to a practitioner of osteopathic

 2  medicine licensed under chapter 459, to a podiatric physician

 3  licensed under chapter 461, to a dentist licensed under

 4  chapter 466, to a hospital licensed under chapter 395, to a

 5  crisis stabilization unit licensed under part IV of chapter

 6  394, to a health maintenance organization certificated under

 7  part I of chapter 641, to clinics included in chapter 390, or

 8  to an ambulatory surgical center as defined in s. 395.002, and

 9  each insurer providing professional liability insurance to a

10  member of The Florida Bar shall report to the office any claim

11  or action for damages for personal injuries claimed to have

12  been caused by error, omission, or negligence in the

13  performance of such insured's professional services or based

14  on a claimed performance of professional services without

15  consent, if the claim resulted in:

16         1.  A final judgment in any amount.

17         2.  A settlement in any amount.

18         3.  A final disposition of a medical malpractice claim

19  resulting in no indemnity payment on behalf of the insured.

20         (b)  Each health care practitioner and health care

21  facility listed in paragraph (a) must report any claim or

22  action for damages as described in paragraph (a), if the claim

23  is not otherwise required to be reported by an insurer or

24  other insuring entity.

25  

26  Reports under this subsection shall be filed with the office

27  no later than 30 days following the occurrence of any event

28  listed in paragraph (a).

29         (2)  The reports required by subsection (1) shall

30  contain:

31  

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 1         (a)  The name, address, health care provider

 2  professional license number, and specialty coverage of the

 3  insured.

 4         (b)  The insured's policy number.

 5         (c)  The date of the occurrence which created the

 6  claim.

 7         (d)  The date the claim was reported to the insurer or

 8  self-insurer.

 9         (e)  The name and address of the injured person. This

10  information is confidential and exempt from the provisions of

11  s. 119.07(1), and must not be disclosed by the office without

12  the injured person's consent, except for disclosure by the

13  office to the Department of Health. This information may be

14  used by the office for purposes of identifying multiple or

15  duplicate claims arising out of the same occurrence.

16         (f)  The date of suit, if filed.

17         (g)  The injured person's age and sex.

18         (h)  The total number, names, and health care provider

19  professional license numbers of all defendants involved in the

20  claim and any nonparty health care provider who appeared on

21  the jury verdict form in any case.

22         (i)  The date and amount of judgment or settlement, if

23  any, including the itemization of the verdict from the jury

24  verdict form.

25         (j)  In the case of a settlement, such information as

26  the office may require with regard to the injured person's

27  incurred and anticipated medical expense, wage loss, and other

28  expenses.

29         (k)  The loss adjustment expense paid to defense

30  counsel, and all other allocated loss adjustment expense paid.

31  

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 1         (l)  The date and reason for final disposition, if no

 2  judgment or settlement.

 3         (m)  A summary of the occurrence which created the

 4  claim, which shall include:

 5         1.  The name of the institution, if any, and the

 6  location within the institution at which the injury occurred.

 7         2.  The final diagnosis for which treatment was sought

 8  or rendered, including the patient's actual condition.

 9         3.  A description of the misdiagnosis made, if any, of

10  the patient's actual condition.

11         4.  The operation, diagnostic, or treatment procedure

12  causing the injury.

13         5.  A description of the principal injury giving rise

14  to the claim.

15         6.  The safety management steps that have been taken by

16  the insured to make similar occurrences or injuries less

17  likely in the future.

18         (n)  Any other information required by the commission,

19  by rule, to assist the office in its analysis and evaluation

20  of the nature, causes, location, cost, and damages involved in

21  professional liability cases.

22         (3)  The office shall provide the Department of Health

23  with electronic access to all information received under this

24  section related to persons licensed under chapter 458, chapter

25  459, chapter 461, or chapter 466. The Department of Health

26  shall review each report and determine whether any of the

27  incidents that resulted in the claim potentially involved

28  conduct by the licensee that is subject to disciplinary

29  action, in which case the provisions of s. 456.073 shall

30  apply.

31  

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 1         (4)  There shall be no liability on the part of, and no

 2  cause of action of any nature shall arise against, any person

 3  or entity reporting hereunder or its agents or employees or

 4  the office or its employees for any action taken by them under

 5  this section. The office may impose a fine of up to $250 per

 6  day per case, but not to exceed a total of $10,000 per case,

 7  against an insurer, commercial self-insurance fund, medical

 8  malpractice self-insurance fund, or risk retention group that

 9  violates the requirements of this section, except that the

10  office may impose a fine of $250 per day per case, not to

11  exceed a total of $1,000 per case, against an insurer

12  providing professional liability insurance to a member of The

13  Florida Bar, which insurer violates the provisions of this

14  section. If a health care practitioner or health care facility

15  violates the requirements of this section, it shall be

16  considered a violation of the chapter or act under which the

17  practitioner or facility is licensed and shall be grounds for

18  a fine or disciplinary action as such other violations of the

19  chapter or act. The office may adjust a fine imposed under

20  this subsection by considering the financial condition of the

21  licensee, premium volume written, ratio of violations to

22  compliancy, and other mitigating factors as determined by the

23  office.

24         (5)  Any self-insurance program established under s.

25  1004.24 shall report to the office any claim or action for

26  damages for personal injuries claimed to have been caused by

27  error, omission, or negligence in the performance of

28  professional services provided by the state university board

29  of trustees through an employee or agent of the state

30  university board of trustees, including practitioners of

31  medicine licensed under chapter 458, practitioners of

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 1  osteopathic medicine licensed under chapter 459, podiatric

 2  physicians licensed under chapter 461, and dentists licensed

 3  under chapter 466, or based on a claimed performance of

 4  professional services without consent if the claim resulted in

 5  a final judgment in any amount, or a settlement in any amount.

 6  The reports required by this subsection shall contain the

 7  information required by subsection (3) and the name, address,

 8  and specialty of the employee or agent of the state university

 9  board of trustees whose performance or professional services

10  is alleged in the claim or action to have caused personal

11  injury. Such employee or agent shall report such claim to the

12  Department of Health to be included on that employee's or

13  agent's practitioner profile.

14         (6)  Each entity required to report closed claims for

15  the classification of insurance set forth in subsection (1)

16  shall also provide to the Office of Insurance Regulation the

17  following financial information, specific to this state and

18  countrywide, if applicable, for the prior calendar year:

19         (a)  Direct premiums written.

20         (b)  Direct premiums earned.

21         (c)  Incurred loss and loss expense developed according

22  to the formula A + B - C + D - E + F + G - H, for which A

23  equals the dollar amount of losses paid, B equals the reserves

24  for reported claims at the end of the current year, C equals

25  the reserves for reported claims at the end of the previous

26  year, D equals the reserves for incurred but not reported

27  claims at the end of the current year, E equals the reserves

28  for incurred but not reported claims at the end of the

29  previous year, F equals loss adjustment expenses paid, G

30  equals the reserves for loss adjustment expenses at the end of

31  

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 1  the current year, and H equals the reserves for loss

 2  adjustment expenses at the end of the previous year.

 3         (d)  Incurred expenses allocated separately to

 4  commissions, other acquisition costs, general expenses, taxes,

 5  licenses, and fees, using appropriate estimates when

 6  necessary.

 7         (e)  Policyholder dividends.

 8         (f)  Underwriting gain or loss.

 9         (g)  Net investment income, including net realized

10  capital gains and losses, using appropriate estimates when

11  necessary.

12         (h)  Federal income taxes.

13         (i)  Net income.

14         (7)  The director of the Office of Insurance Regulation

15  may levy an administrative fine of $1,000 per day against any

16  insurer that fails to comply with the reporting requirements

17  of this section.

18         (8)(a)(6)(a)  The office shall prepare statistical

19  summaries of the closed claims reports for medical malpractice

20  filed pursuant to this section, for each year that such

21  reports have been filed, and make such summaries and closed

22  claim reports available on the Internet by July 1, 2005.

23         (b)  The office shall prepare an annual report by

24  October 1 of each year, beginning in 2004, which shall be

25  available on the Internet, which summarizes and analyzes the

26  closed claim reports for medical malpractice filed pursuant to

27  this section and the annual financial reports filed by

28  insurers writing medical malpractice insurance in this state.

29  The report must include an analysis of closed claim reports of

30  prior years, in order to show trends in the frequency and

31  amount of claims payments, the itemization of economic and

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 1  noneconomic damages, the nature of the errant conduct, and

 2  such other information as the office determines is

 3  illustrative of the trends in closed claims. The report must

 4  also analyze the state of the medical malpractice insurance

 5  market in Florida, including an analysis of the financial

 6  reports of those insurers with a combined market share of at

 7  least 80 percent of the net written premium in the state for

 8  medical malpractice for the prior calendar year, including a

 9  loss ratio analysis for medical malpractice written in Florida

10  and a profitability analysis of each such insurer. The report

11  shall compare the ratios for medical malpractice in Florida

12  compared to other states, based on financial reports filed

13  with the National Association of Insurance Commissioners and

14  such other information as the office deems relevant.

15         (c)  The annual report shall also include a summary of

16  the rate filings for medical malpractice which have been

17  approved by the office for the prior calendar year, including

18  an analysis of the trend of direct and incurred losses as

19  compared to prior years.

20         (9)(7)  The office commission may adopt rules requiring

21  persons and entities required to report pursuant to this

22  section to also report data related to the frequency and

23  severity of open claims for the reporting period, amounts

24  reserved for incurred claims, changes in reserves from the

25  previous reporting period, and other information considered

26  relevant to the ability of the office to monitor losses and

27  claims development in the Florida medical malpractice

28  insurance market.

29         Section 5.  Section 627.41491, Florida Statutes, is

30  created to read:

31  

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 1         627.41491  Full disclosure of insurance

 2  information.--The Office of Insurance Regulation shall provide

 3  health care providers with a comparison of the rates in effect

 4  for each medical malpractice insurer, self-insurer risk

 5  retention group, and the Florida Medical Malpractice Joint

 6  Underwriting Association. The chart shall include comparison

 7  of the rates of a variety of specialties and shall reflect the

 8  differing rates by geographic region, years in practice, and

 9  the discounts and surcharges available, including those

10  required under s. 627.4147(2) for the loss and disciplinary

11  record of the potential insured. Such rate comparison chart

12  shall be made available to the public through the Internet no

13  later than January 1 of each year.

14         Section 6.  Section 627.41493, Florida Statutes, is

15  created to read:

16         627.41493  Insurance rate rollback.--

17         (1)  For any coverage for medical malpractice insurance

18  subject to this chapter issued or renewed on or after October

19  1, 2007, every insurer shall reduce its rates to levels that

20  are at least 25 percent less than the rates for the same

21  coverage which were in effect on October 1, 2004.

22         (2)  Notwithstanding any law to the contrary,

23  commencing October 1, 2007, insurance rates for medical

24  malpractice subject to this chapter must be approved by the

25  director of the Office of Insurance Regulation prior to being

26  used.

27         (3)  Any separate affiliate of an insurer is subject to

28  this section.

29         Section 7.  Section 627.41495, Florida Statutes, is

30  amended to read:

31  

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 1         627.41495  Consumer participation in rate review Public

 2  notice of medical malpractice rate filings.--

 3         (1)  Upon the filing of a proposed rate change by a

 4  medical malpractice insurer, self-insurer, or risk retention

 5  group, the director of the Office of Insurance Regulation

 6  shall require the insurer, self-insurer, or risk retention

 7  group to give notice to the public and to the insureds or

 8  associations of insureds of the insurer, self-insurer, or risk

 9  retention group making the filing or self-insurance fund,

10  which filing would result in an average statewide increase of

11  25 percent or more, pursuant to standards determined by the

12  office, the insurer or self-insurance fund shall mail notice

13  of such filing to each of its policyholders or members.

14         (2)  The rate filing shall be available for public

15  inspection. If any insureds or associations of insureds of the

16  insurer, self-insurer, or risk retention group filing the

17  proposed rate change request the director of the Office of

18  Insurance Regulation, within 30 days after the mailing of the

19  notification of the proposed rate changes to the insureds, to

20  hold a hearing, the director shall hold a hearing within 30

21  days after such request. Any consumer may participate in such

22  hearing, and the office shall adopt rules governing such

23  participation.

24         (3)  The Public Counsel has standing to request a

25  hearing in according with this section.

26         Section 8.  It is the intent of the Legislature that

27  medical malpractice rates be based upon projected losses and

28  expenses that reflect the current state of the law in this

29  state regarding medical malpractice claims. The Legislature

30  finds that there is no justification for basing rates on the

31  prior 5 to 10 years of loss experience and expenses when

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 1  significant restrictions on the rights of patients and their

 2  families were enacted in 2003 which have significantly

 3  impacted both the frequency and severity of medical

 4  malpractice claims, including, but not limited to, caps on

 5  noneconomic damages, expert witness restrictions, and other

 6  barriers to full recovery for victims of medical malpractice

 7  and their families. These legislative enactments were not

 8  implemented to enrich medical malpractice insurance carriers,

 9  but rather to bring about the affordability and greater

10  availability of medical malpractice insurance products to the

11  state's health care providers. Accordingly, notwithstanding

12  any law, rule, policy, or industry standard to the contrary,

13  rates for medical malpractice insurance filed with the Office

14  of Insurance Regulation prior to September 15, 2009, may not

15  be based upon the loss and expense experience of more than 5

16  years prior to that date. For rates filed with the Office of

17  Insurance Regulation on or after September 15, 2009, insurers

18  may base such filings on the loss and expense experience of

19  2004 and thereafter but may not base rates on loss and expense

20  experience prior to that year.

21         Section 9.  The Office of Insurance Regulation may

22  adopt rules to administer this act.

23         Section 10.  This act shall take effect upon becoming a

24  law.

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

 2                          SENATE SUMMARY

 3    Prescribes applicability of consumer protection laws to
      the business of insurance. Revises rate standards with
 4    respect to medical malpractice insurance. Deletes a
      provision under which a medical malpractice insured may
 5    be required by the insurer to be a member of a
      professional society. Requires additional information in
 6    reports relating to professional liability claims and
      actions. Authorizes an administrative fine for failure to
 7    comply with reporting requirements. Requires disclosure
      of information relating to medical malpractice insurers.
 8    Requires a rate rollback for medical malpractice
      insurance. Provides for consumer participation in rate
 9    review. (See bill for details.)

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