HB 1529

1	A bill to be entitled
2	An act relating to arbitration agreements governing
3	certain medical negligence claims; creating s. 682.025,
4	F.S.; defining terms; providing that arbitration
5	agreements written in conformity with the Florida
6	Arbitration Code are consistent with the public policy of
7	this state; providing that an arbitration agreement that
8	violates the requirements of the Florida Arbitration Code
9	is voidable at the option of the consumer until the
10	initiation of arbitration; prohibiting an arbitration
11	agreement from restricting or abolishing any substantive
12	or due process right or restricting in any way damages or
13	remedies available to a patient or nursing home resident;
14	requiring each arbitration agreement to include a
15	provision for selecting arbitrators by mutual agreement of
16	the patient or nursing home resident and the health care
17	provider; requiring the court to appoint arbitrators who
18	are acceptable to both parties if the parties are unable
19	to reach an agreement for selecting the arbitrators;
20	requiring the provider to explain the pre-dispute
21	agreement in detail to the consumer; providing that the
22	pre-dispute agreement may be rescinded at any time before
23	the initiation of arbitration by the consumer or the
24	provider by notifying the other in writing of the
25	recession; requiring each pre-dispute agreement and post-
26	dispute agreement to contain certain specified provisions;
27	requiring that the provider give a copy of the pre-dispute
28	agreement to the patient or nursing home resident;
29	prohibiting a health care provider from refusing to serve
30	a patient if the patient declines to sign an arbitration
31	agreement or chooses to rescind the arbitration agreement;
32	prohibiting a health care provider from presenting
33	arbitration agreements to patients under certain
34	circumstances; requiring a provider to give a patient a
35	specified period of time to review the post-dispute
36	agreement and to consult an attorney; providing an
37	effective date.
38
39	WHEREAS, some medical malpractice insurers encourage health
40	care providers to use arbitration agreements as a condition of
41	providing medical malpractice insurance to health care
42	providers, and
43	WHEREAS, some nursing homes and health care providers
44	require patients and nursing home residents to execute
45	arbitration agreements prior to the delivery of services and
46	medical care, and
47	WHEREAS, many insurance plans restrict the choice patients
48	have in choosing health care providers and nursing homes,
49	leaving patients with no ability to fairly negotiate a contract
50	for services, and
51	WHEREAS, the Legislature created a comprehensive statutory
52	scheme for health care providers in chapter 766, F.S., and for
53	nursing homes in chapter 400, F.S., to ensure the availability
54	of health care services in Florida by stabilizing the
55	availability of liability insurance by statutorily governing the
56	rights of patients and duties of health care providers and
57	nursing homes in a comprehensive way, and
58	WHEREAS, contracts for services that change the rights of
59	the parties affect the stability of the insurance rates and the
60	health care system and services that are overseen and regulated
61	by the State of Florida, and
62	WHEREAS, the Legislature intends that an arbitration
63	agreement be a voluntary agreement between a patient and a
64	health care provider or nursing home, and not a prerequisite to
65	medical services or care, and
66	WHEREAS, the Legislature intends that medical malpractice
67	insurers not require health care providers or others to require
68	the use of arbitration agreements without certain safeguards
69	that are designed to protect patients' and nursing home
70	residents' rights, and
71	WHEREAS, the Legislature intends that health care providers
72	and nursing homes not require consumers and patients to sign any
73	contract for services that changes the rights of the consumer or
74	patient as provided in chapter 766 or chapter 400, F.S., or that
75	requires a pre-dispute arbitration in advance of providing care,
76	NOW, THEREFORE,
77
78	Be It Enacted by the Legislature of the State of Florida:
79
80	Section 1.  Section 682.025, Florida Statutes, is created
81	to read:
82	682.025  Contracts for medical services and nursing home
83	care; arbitration agreements.-
84	(1)  As used in this section, the term:
85	(a)  "Consumer" means a patient of a provider or a nursing
86	home resident. The term includes a legal guardian of the
87	consumer or any other person who is legally authorized to enter
88	into a pre-dispute agreement or post-dispute agreement with a
89	provider on behalf of a consumer.
90	(b)  "Dispute" means a medical negligence claim under
91	chapter 766 or a claim against a nursing home pursuant to the
92	common law, s. 400.023, or s. 400.0233.
93	(c)  "Provider" means a health care facility licensed under
94	chapter 395, a health care practitioner as defined in s.
95	456.001, or a nursing home facility licensed under part II of
96	chapter 400.
97	(d)  "Pre-dispute agreement" means an arbitration agreement
98	executed by a consumer and a provider before the occurrence of
99	events forming the basis of a dispute.
100	(e)  "Post-dispute agreement" means an arbitration
101	agreement executed by a consumer and a provider after the
102	occurrence of events forming the basis of a dispute.
103	(2)  Any pre-dispute agreement or post-dispute agreement
104	between a consumer and a provider which conforms to this chapter
105	is enforceable and consistent with the public policy of this
106	state. An arbitration agreement that violates the requirements
107	of this chapter is voidable at the option of the consumer until
108	the initiation of arbitration.
109	(3)  A pre-dispute agreement or post-dispute agreement may
110	not restrict or abolish any substantive or due process right or
111	restrict in any way the damages or remedies available to the
112	consumer.
113	(4)  A pre-dispute agreement or post-dispute agreement must
114	provide an opportunity to select the arbitrators by mutual
115	agreement of the consumer and the provider after the arbitration
116	has been initiated. The pre-dispute agreement and the post-
117	dispute agreement may not restrict the panel from which the
118	arbitrator is selected. The court shall appoint one or more
119	arbitrators who are acceptable to the consumer and provider if
120	the consumer and the provider are unable to reach an agreement
121	selecting the arbitrator.
122	(5)(a)  Each pre-dispute agreement must be explained in
123	detail to the consumer by the provider.
124	(b)  A pre-dispute agreement may be rescinded at any time
125	before the initiation of arbitration by the consumer or the
126	provider by notifying the other in writing of the recession.
127	(c)  The pre-dispute agreement must:
128	1.  Include the following provision in the arbitration
129	agreement:
130
131	It is understood that any dispute relating to
132	negligence or problems with care, that is as to
133	whether any services rendered under this agreement
134	were unnecessary or unauthorized or were improperly,
135	negligently, or incompetently rendered, will be
136	determined by submission to arbitration as provided by
137	the law of this state, and not by a lawsuit or resort
138	to court process except as allowed by the law of this
139	state for judicial review of arbitration agreements.
140	Both parties to this contract, by entering into it,
141	are foregoing their constitutional right to have the
142	dispute decided in a court of law before a jury, and
143	instead are accepting the use of arbitration. The
144	consumer has the right to seek legal counsel
145	concerning this agreement and has the right to rescind
146	this agreement by written notice to the provider at
147	any time before the beginning of the arbitration.
148
149	2.  Be in a separate document apart from other documents
150	provided to the consumer by the provider and be clearly and
151	conspicuously identified as an arbitration agreement.
152	3.  Include the signature of an individual who has
153	witnessed the provider's explanation of the arbitration
154	agreement to the consumer.
155	4.  Include, immediately before the signature line provided
156	for the consumer, the following statement in at least 16-point
157	bold red type:
158
159	NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
160	AGREEING TO HAVE ANY DISPUTE DECIDED BY A NEUTRAL
161	ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
162	RIGHT TO A JURY OR COURT TRIAL.
163
164	YOU HAVE THE RIGHT TO CONSULT WITH AN ATTORNEY
165	REGARDING THIS AGREEMENT. YOU HAVE THE RIGHT TO
166	RESCIND THIS AGREEMENT IN WRITING AT ANY TIME BEFORE
167	BEGINNING AN ARBITRATION PROCEEDING.
168
169	A PROVIDER MAY NOT REFUSE TO PROVIDE SERVICES TO YOU
170	SOLELY BECAUSE YOU REFUSED TO SIGN THE ARBITRATION
171	AGREEMENT OR RESCINDED AN ARBITRATION AGREEMENT.
172
173	(d)  The provider must give a copy of the pre-dispute
174	agreement to the consumer at the time it is signed by the
175	consumer and representative of the provider.
176	(e)  A provider may not refuse to provide services to any
177	consumer solely because the consumer refused to sign the pre-
178	dispute agreement or exercised the right of rescission.
179	(f)  A provider may not submit the pre-dispute agreement to
180	a consumer for approval if the consumer's medical condition
181	requires emergency treatment services and care as defined by s.
182	395.002 or the condition prevents the consumer from making a
183	rational decision whether or not to execute the pre-dispute
184	agreement.
185	(6)(a)  A provider must give the consumer 72 hours to
186	review a post-dispute agreement and to consult with an attorney,
187	if necessary, before signing the post-dispute agreement.
188	(b)  The post-dispute agreement must:
189	1.  Be in a separate document apart from other documents
190	provided to the consumer by the provider and be clearly and
191	conspicuously identified as an arbitration agreement.
192	2.  Include, immediately before the signature line provided
193	for the consumer, the following statement in at least 16-point
194	bold red type:
195
196	NOTICE: BY SIGNING THIS ARBITRATION AGREEMENT, YOU ARE
197	AGREEING TO HAVE A DISPUTE DECIDED BY A NEUTRAL
198	ARBITRATOR AND YOU ARE GIVING UP YOUR CONSTITUTIONAL
199	RIGHT TO A JURY OR COURT TRIAL.
200
201	YOU HAVE THE RIGHT TO REVIEW THIS AGREEMENT FOR 72
202	HOURS BEFORE SIGNING THE ARBITRATION AGREEMENT AND TO
203	CONSULT WITH AN ATTORNEY REGARDING THE ARBITRATION
204	AGREEMENT IF YOU BELIEVE IT NECESSARY TO DO SO.
205	Section 2.  This act shall take effect July 1, 2010.

CODING: Words stricken are deletions; words underlined are additions.