HB 967

1	A bill to be entitled
2	An act relating to personal injury protection insurance;
3	amending s. 26.012, F.S.; providing that circuit courts
4	have exclusive original jurisdiction of unresolved
5	arbitration actions involving the Florida Motor Vehicle
6	No-Fault Law; amending s. 627.4137, F.S.; requiring
7	requests made to a self-insured corporation for disclosure
8	of certain information to be by certified mail; amending
9	s. 627.731, F.S.; providing legislative intent; amending
10	s. 627.736, F.S.; revising a reference to Medicare Part B
11	payments as the schedule for an insurer's discretionary
12	use when limiting reimbursement of certain medical
13	services, supplies, and care; specifying the Medicare fee
14	schedule or payment limitation that is to be used by an
15	insurer to limit reimbursements for certain medical
16	services, supplies, and care; requiring both the insured
17	and any assignee of benefits or payments to cooperate
18	under the terms of the policy; requiring a provider who is
19	assigned the benefits of an insured to submit to
20	examination under oath under certain circumstances;
21	requiring a provider to produce certain knowledgeable
22	individuals for examination under oath under certain
23	circumstances; requiring certain records be provided by
24	claimants for inspection if requested by an insurer;
25	authorizing methods for recording examinations under oath;
26	providing that certain actions by an insurer constitute an
27	unfair and deceptive trade practice; subjecting insurers
28	to penalties for an unfair and deceptive trade practice;
29	creating a presumption relating to failing to appear for
30	an examination; specifying that submitting to an
31	examination is a condition precedent to recovering
32	benefits; providing for application relating to attorney's
33	fees; limiting the amount of recoverable attorney's fees;
34	prohibiting the use of a contingency risk multiplier when
35	calculating attorney's fees; authorizing binding
36	arbitration as a policy provision for dispute resolution;
37	providing requirements and procedures relating to
38	arbitration; providing for the recovery of specified
39	attorney's fees and costs by a prevailing party in
40	arbitration; defining prevailing party; providing for
41	judicial appeal of an arbitration award; providing for the
42	scope of review on appeal; providing an effective date.
43
44	Be It Enacted by the Legislature of the State of Florida:
45
46	Section 1.  Subsection (2) of section 26.012, Florida
47	Statutes, is amended to read:
48	26.012  Jurisdiction of circuit court.-
49	(2)  They shall have exclusive original jurisdiction:
50	(a)  In all actions at law not cognizable by the county
51	courts.;
52	(b)  Of proceedings relating to the settlement of the
53	estates of decedents and minors, the granting of letters
54	testamentary, guardianship, involuntary hospitalization, the
55	determination of incompetency, and other jurisdiction usually
56	pertaining to courts of probate.;
57	(c)  In all cases in equity including all cases relating to
58	juveniles except traffic offenses as provided in chapters 316
59	and 985.;
60	(d)  Of all felonies and of all misdemeanors arising out of
61	the same circumstances as a felony which is also charged.;
62	(e)  In all cases involving legality of any tax assessment
63	or toll or denial of refund, except as provided in s. 72.011.;
64	(f)  In actions of ejectment.; and
65	(g)  In all actions involving the title and boundaries of
66	real property.
67	(h)  In all actions not resolved by arbitration involving
68	the Florida Motor Vehicle No-Fault Law, codified in ss. 627.730-
69	627.7407.
70	Section 2.  Subsection (3) is added to section 627.4137,
71	Florida Statutes, to read:
72	627.4137  Disclosure of certain information required.-
73	(3)  Any request made to a self-insured corporation under
74	this section must be sent via United States certified mail to
75	the registered agent of the disclosing entity.
76	Section 3.  Section 627.731, Florida Statutes, is amended
77	to read:
78	627.731  Purpose and legislative intent.-
79	(1)  The purpose of ss. 627.730-627.7405 is to provide for
80	medical, surgical, funeral, and disability insurance benefits
81	without regard to fault, and to require motor vehicle insurance
82	securing such benefits, for motor vehicles required to be
83	registered in this state and, with respect to motor vehicle
84	accidents, a limitation on the right to claim damages for pain,
85	suffering, mental anguish, and inconvenience.
86	(2)  It is the intent of the Legislature to balance the
87	insured's interest in prompt payment of valid claims for no-
88	fault insurance benefits with the public's interest in reducing
89	fraud, abuse, and overuse of the no-fault system. To these ends,
90	the intent of this act is to enhance the investigation and
91	prevention of fraudulent insurance acts in this state, to remove
92	incentives for manufactured litigation, and to revise provisions
93	of law that may create incentives for fraudulent insurance acts.
94	As such, ss. 627.730-627.7405 shall be construed according to
95	the plain language of the statutory provisions which are
96	designed to meet these goals.
97	(3)  It is the further intent of the Legislature that the
98	provisions, schedules, and procedures authorized in ss. 627.730-
99	627.7405 be implemented by the insurers who offer personal
100	injury protection benefits. Provisions, schedules, and
101	procedures authorized in ss. 627.730-627.7405 have full force
102	and effect regardless of their inclusion in an insurance policy
103	form, and an insurer is not required to amend its policy form to
104	utilize provisions, schedules, or procedures specifically
105	authorized by the Florida Motor Vehicle No-Fault law.
106	Section 4.  Paragraph (a) of subsection (5), paragraph (b)
107	of subsection (6), paragraph (b) of subsection (7), and
108	subsection (8) of section 627.736, Florida Statutes, are
109	amended, present subsection (16) is redesignated as subsection
110	(17), and new subsections (16) and (18) are added to that
111	section, to read:
112	627.736  Required personal injury protection benefits;
113	exclusions; priority; claims.-
114	(5)  CHARGES FOR TREATMENT OF INJURED PERSONS.-
115	(a)1.  Any physician, hospital, clinic, or other person or
116	institution lawfully rendering treatment to an injured person
117	for a bodily injury covered by personal injury protection
118	insurance may charge the insurer and injured party only a
119	reasonable amount pursuant to this section for the services and
120	supplies rendered, and the insurer providing such coverage may
121	pay for such charges directly to such person or institution
122	lawfully rendering such treatment, if the insured receiving such
123	treatment or his or her guardian has countersigned the properly
124	completed invoice, bill, or claim form approved by the office
125	upon which such charges are to be paid for as having actually
126	been rendered, to the best knowledge of the insured or his or
127	her guardian. In no event, however, may such a charge be in
128	excess of the amount the person or institution customarily
129	charges for like services or supplies. With respect to a
130	determination of whether a charge for a particular service,
131	treatment, or otherwise is reasonable, consideration may be
132	given to evidence of usual and customary charges and payments
133	accepted by the provider involved in the dispute, and
134	reimbursement levels in the community and various federal and
135	state medical fee schedules applicable to automobile and other
136	insurance coverages, and other information relevant to the
137	reasonableness of the reimbursement for the service, treatment,
138	or supply.
139	2.  The insurer may limit reimbursement to 80 percent of
140	the following schedule of maximum charges:
141	a.  For emergency transport and treatment by providers
142	licensed under chapter 401, 200 percent of Medicare.
143	b.  For emergency services and care provided by a hospital
144	licensed under chapter 395, 75 percent of the hospital's usual
145	and customary charges.
146	c.  For emergency services and care as defined by s.
147	395.002(9) provided in a facility licensed under chapter 395
148	rendered by a physician or dentist, and related hospital
149	inpatient services rendered by a physician or dentist, the usual
150	and customary charges in the community.
151	d.  For hospital inpatient services, other than emergency
152	services and care, 200 percent of the Medicare Part A
153	prospective payment applicable to the specific hospital
154	providing the inpatient services.
155	e.  For hospital outpatient services, other than emergency
156	services and care, 200 percent of the Medicare Part A Ambulatory
157	Payment Classification for the specific hospital providing the
158	outpatient services.
159	f.  For all other medical services, supplies, and care,
160	including durable medical equipment and care and services
161	rendered by clinical laboratories, 200 percent of the allowable
162	amount under the participating physicians schedule of Medicare
163	Part B. However, if such services, supplies, or care is not
164	reimbursable under Medicare Part B, or if the care and services
165	are rendered in an ambulatory surgical center, the insurer may
166	limit reimbursement to 80 percent of the maximum reimbursable
167	allowance under workers' compensation, as determined under s.
168	440.13 and rules adopted thereunder which are in effect at the
169	time such services, supplies, or care is provided. Services,
170	supplies, or care that is not reimbursable under Medicare or
171	workers' compensation is not required to be reimbursed by the
172	insurer.
173	3.  For purposes of subparagraph 2., the applicable fee
174	schedule or payment limitation under Medicare is the fee
175	schedule or payment limitation that was in effect as of January
176	1 of the year in which at the time the services, supplies, or
177	care was rendered and for the area in which such services were
178	rendered and shall apply throughout the remainder of the year,
179	notwithstanding any subsequent changes made to such fee schedule
180	or payment limitation, except that it may not be less than the
181	allowable amount under the participating physicians schedule of
182	Medicare Part B for 2007 for medical services, supplies, and
183	care subject to Medicare Part B.
184	4.  Subparagraph 2. does not allow the insurer to apply any
185	limitation on the number of treatments or other utilization
186	limits that apply under Medicare or workers' compensation. An
187	insurer that applies the allowable payment limitations of
188	subparagraph 2. must reimburse a provider who lawfully provided
189	care or treatment under the scope of his or her license,
190	regardless of whether such provider would be entitled to
191	reimbursement under Medicare due to restrictions or limitations
192	on the types or discipline of health care providers who may be
193	reimbursed for particular procedures or procedure codes.
194	5.  If an insurer limits payment as authorized by
195	subparagraph 2., the person providing such services, supplies,
196	or care may not bill or attempt to collect from the insured any
197	amount in excess of such limits, except for amounts that are not
198	covered by the insured's personal injury protection coverage due
199	to the coinsurance amount or maximum policy limits.
200	(6)  DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.-
201	(b)  Every physician, hospital, clinic, or other medical
202	institution providing, before or after bodily injury upon which
203	a claim for personal injury protection insurance benefits is
204	based, any products, services, or accommodations in relation to
205	that or any other injury, or in relation to a condition claimed
206	to be connected with that or any other injury, shall, if
207	requested to do so by the insurer against whom the claim has
208	been made, furnish forthwith a written report of the history,
209	condition, treatment, dates, and costs of such treatment of the
210	injured person and why the items identified by the insurer were
211	reasonable in amount and medically necessary, together with a
212	sworn statement that the treatment or services rendered were
213	reasonable and necessary with respect to the bodily injury
214	sustained and identifying which portion of the expenses for such
215	treatment or services was incurred as a result of such bodily
216	injury, and produce forthwith, and permit the inspection and
217	copying of, his or her or its records regarding such history,
218	condition, treatment, dates, and costs of treatment; provided
219	that this shall not limit the introduction of evidence at trial.
220	Such sworn statement shall read as follows: "Under penalty of
221	perjury, I declare that I have read the foregoing, and the facts
222	alleged are true, to the best of my knowledge and belief." No
223	cause of action for violation of the physician-patient privilege
224	or invasion of the right of privacy shall be permitted against
225	any physician, hospital, clinic, or other medical institution
226	complying with the provisions of this section. The person
227	requesting such records and such sworn statement shall pay all
228	reasonable costs connected therewith. If an insurer makes a
229	written request for documentation or information under this
230	paragraph within 30 days after having received notice of the
231	amount of a covered loss under paragraph (4)(a), the amount or
232	the partial amount which is the subject of the insurer's inquiry
233	shall become overdue if the insurer does not pay in accordance
234	with paragraph (4)(b) or within 10 days after the insurer's
235	receipt of the requested documentation or information, whichever
236	occurs later. For purposes of this paragraph, the term "receipt"
237	includes, but is not limited to, inspection and copying pursuant
238	to this paragraph. Any insurer that requests documentation or
239	information pertaining to reasonableness of charges or medical
240	necessity under this paragraph without a reasonable basis for
241	such requests as a general business practice is engaging in an
242	unfair trade practice under the insurance code. If an insured
243	seeking to recover benefits under ss. 627.730-627.7405 assigns
244	the contractual right to those benefits or the payment of those
245	benefits to any person or entity, the assignee shall comply with
246	the terms of the policy, and both the insured and the assignee
247	shall be obligated to cooperate under the policy, which
248	includes, but is not limited to, submitting to examinations
249	under oath. Compliance with this paragraph is a condition
250	precedent to the recovery of benefits under ss. 627.730-
251	627.7405. If an insurer requests an examination under oath of a
252	medical provider, the provider must produce those individuals
253	with the most knowledge of the issues identified by the insurer
254	in the request for examination under oath. All claimants must
255	produce and provide for inspection all documents requested by
256	the insurer that are reasonably obtainable by the claimant.
257	Examinations under oath may be recorded by audio, video, court
258	reporter, or any combination thereof. Any insurer that, as a
259	general practice, requests examinations under oath without a
260	reasonable basis is engaging in an unfair and deceptive trade
261	practice.
262	(7)  MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
263	REPORTS.-
264	(b)  If requested by the person examined, a party causing
265	an examination to be made shall deliver to him or her a copy of
266	every written report concerning the examination rendered by an
267	examining physician, at least one of which reports must set out
268	the examining physician's findings and conclusions in detail.
269	After such request and delivery, the party causing the
270	examination to be made is entitled, upon request, to receive
271	from the person examined every written report available to him
272	or her or his or her representative concerning any examination,
273	previously or thereafter made, of the same mental or physical
274	condition. By requesting and obtaining a report of the
275	examination so ordered, or by taking the deposition of the
276	examiner, the person examined waives any privilege he or she may
277	have, in relation to the claim for benefits, regarding the
278	testimony of every other person who has examined, or may
279	thereafter examine, him or her in respect to the same mental or
280	physical condition. If a person unreasonably refuses to submit
281	to an examination, the personal injury protection carrier is no
282	longer liable for subsequent personal injury protection benefits
283	incurred after the date of the first request for examination.
284	Failure to appear for an examination creates a rebuttable
285	presumption that the failure was an unreasonable refusal.
286	Submission to an examination is a condition precedent to
287	benefits.
288	(8)  APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
289	FEES.-With respect to any dispute under the provisions of ss.
290	627.730-627.7405 between the insured and the insurer, or between
291	an assignee of an insured's rights and the insurer, or between
292	any entity or person seeking payment of benefits pursuant to the
293	terms of the policy, the provisions of s. 627.428 shall apply,
294	except as provided in subsections (10), (15), and (18)(15). Any
295	attorney's fees recovered under ss. 627.730-627.7405 shall be
296	limited to the lesser of $10,000 or treble the disputed amount
297	recovered by the attorney under ss. 627.730-627.7405. Attorney's
298	fees in a class action under ss. 627.730-627.7405 are limited to
299	the lesser of $50,000 or treble the total of the disputed amount
300	recovered in the class action proceeding.
301	(16)  ATTORNEYS' FEES.-Notwithstanding s. 627.428, the
302	attorney's fees recovered under ss. 627.730-627.7405 shall be
303	calculated without regard to any contingency risk multiplier.
304	(17)(16)  SECURE ELECTRONIC DATA TRANSFER.-If all parties
305	mutually and expressly agree, a notice, documentation,
306	transmission, or communication of any kind required or
307	authorized under ss. 627.730-627.7405 may be transmitted
308	electronically if it is transmitted by secure electronic data
309	transfer that is consistent with state and federal privacy and
310	security laws.
311	(18)  ARBITRATION; APPEALABLE BY ACTION IN CIRCUIT COURT.-
312	(a)  In order to expedite the resolution of disputes
313	arising from contracts involving personal injury protection
314	benefits, an insurer may offer a policy that requires or allows
315	the insurer, an insured, or any other claimant under the policy
316	to make a demand for arbitration for any claims dispute
317	involving personal injury protection benefits before filing a
318	lawsuit and in lieu of litigation, with the exception of an
319	appeal pursuant to paragraph (i). Before making a demand for
320	arbitration, a claimant must comply with the conditions under
321	subsection (10). A demand for arbitration must be in writing and
322	furnished to the nonrequesting party via United States certified
323	mail. Arbitration may not be held until at least 30 days after
324	the request for arbitration is received by the nonrequesting
325	party and at least 20 days after all the requested documentation
326	discoverable under paragraphs (e) and (f) is received. Unless
327	otherwise provided in this subsection, arbitration is governed
328	by chapter 682, the Florida Arbitration Code.
329	(b)  The arbitration must take place in the county where
330	the treatment was rendered. If the treatment was rendered
331	outside this state, arbitration must take place in the county
332	where the insured resides, unless the parties agree to another
333	location.
334	(c)  The arbitration panel must be made up of three
335	arbitrators. Each party must select a competent and impartial
336	arbitrator. The two arbitrators selected by the parties must
337	select a third arbitrator. If the two arbitrators selected by
338	the parties are unable to agree on the selection of a third
339	arbitrator within 30 days, either party may request a circuit
340	court judge in the county where the arbitration is pending to
341	select a third arbitrator. If this method fails or for any
342	reason cannot be followed, or an arbitrator who has been
343	appointed fails to act and a successor has not been duly
344	appointed, the court, on application of an insurer or claimant,
345	must appoint one or more arbitrators. An arbitrator so appointed
346	has the same powers as an arbitrator named or provided for in
347	the policy providing personal injury protection benefits.
348	(d)  The decision of a majority of the arbitrators is
349	binding on each party, unless appealed under paragraph (i). The
350	decision of the arbitrators must be furnished in writing to each
351	party.
352	(e)  Upon written request before arbitration, the
353	appropriate provider must make available for inspection or
354	copying the entire file pertaining to the patient whose benefits
355	are the subject of arbitration. Arbitration may not be held
356	until 30 days after the required written demand for arbitration
357	is received and an insured's file is supplied to the insurer.
358	(f)  Upon written request before arbitration, the insurer
359	must provide for the inspection or copying of the evidence upon
360	which it relies in adjusting or rejecting the claim. However,
361	the insurer is not required to produce privileged items from its
362	claims or underwriting files or documents or items which it does
363	not intend to rely upon as evidence to support its adjustment or
364	rejection of the claim. This paragraph only authorizes discovery
365	from the insurer of items relating to insurance coverage and
366	does not authorize discovery pertaining to any issue relating to
367	the handling of claims.
368	(g)  An arbitration award may not exceed the applicable
369	limits of coverage remaining on the policy.
370	(h)1.  The prevailing party is entitled to reimbursement of
371	reasonable attorney's fees and costs directly associated with
372	the arbitration. A claim for attorney's fees is limited to the
373	lesser of $10,000 or treble the amount of the benefits secured
374	in the arbitration process, or in the case of a class action,
375	attorney's fees are limited to the lesser of $50,000 or treble
376	the total amount of the benefits secured in the arbitration
377	process.
378	2.  For purposes of this section, the prevailing party is:
379	a.  The claimant if the award is greater than 50 percent
380	above the amount the insurer offered before arbitration; or
381	b.  The insurer if the award is less than 50 percent above
382	the amount the insurer offered before arbitration.
383	3.  If there is no prevailing party, each party must pay
384	its own costs and attorney's fees and share equally in the
385	payment of the costs incurred on both parties' behalf, including
386	the costs of a third arbitrator.
387	(i)  Either party may appeal the arbitration decision by
388	filing an appeal in circuit court with a copy of the arbitration
389	decision attached. However, if the insurer pays the amount
390	awarded in the arbitration, but the claimant, assignee, or
391	insured seeking benefits under the insurance policy appeals the
392	arbitration decision in circuit court, s. 627.428 does not
393	apply. An appeal of the arbitration decision is limited to a
394	review on the record and is not a de novo review. Interest on
395	the amount in dispute does not accrue during the course of an
396	appeal.
397	Section 5.  This act shall take effect upon becoming a law.

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