HB 967

A bill to be entitled
2An act relating to personal injury protection insurance;
3amending s. 26.012, F.S.; providing that circuit courts
4have exclusive original jurisdiction of unresolved
5arbitration actions involving the Florida Motor Vehicle
6No-Fault Law; amending s. 627.4137, F.S.; requiring
7requests made to a self-insured corporation for disclosure
8of certain information to be by certified mail; amending
9s. 627.731, F.S.; providing legislative intent; amending
10s. 627.736, F.S.; revising a reference to Medicare Part B
11payments as the schedule for an insurer's discretionary
12use when limiting reimbursement of certain medical
13services, supplies, and care; specifying the Medicare fee
14schedule or payment limitation that is to be used by an
15insurer to limit reimbursements for certain medical
16services, supplies, and care; requiring both the insured
17and any assignee of benefits or payments to cooperate
18under the terms of the policy; requiring a provider who is
19assigned the benefits of an insured to submit to
20examination under oath under certain circumstances;
21requiring a provider to produce certain knowledgeable
22individuals for examination under oath under certain
23circumstances; requiring certain records be provided by
24claimants for inspection if requested by an insurer;
25authorizing methods for recording examinations under oath;
26providing that certain actions by an insurer constitute an
27unfair and deceptive trade practice; subjecting insurers
28to penalties for an unfair and deceptive trade practice;
29creating a presumption relating to failing to appear for
30an examination; specifying that submitting to an
31examination is a condition precedent to recovering
32benefits; providing for application relating to attorney's
33fees; limiting the amount of recoverable attorney's fees;
34prohibiting the use of a contingency risk multiplier when
35calculating attorney's fees; authorizing binding
36arbitration as a policy provision for dispute resolution;
37providing requirements and procedures relating to
38arbitration; providing for the recovery of specified
39attorney's fees and costs by a prevailing party in
40arbitration; defining prevailing party; providing for
41judicial appeal of an arbitration award; providing for the
42scope of review on appeal; providing an effective date.
44Be It Enacted by the Legislature of the State of Florida:
46     Section 1.  Subsection (2) of section 26.012, Florida
47Statutes, 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
52     (b)  Of proceedings relating to the settlement of the
53estates of decedents and minors, the granting of letters
54testamentary, guardianship, involuntary hospitalization, the
55determination of incompetency, and other jurisdiction usually
56pertaining to courts of probate.;
57     (c)  In all cases in equity including all cases relating to
58juveniles except traffic offenses as provided in chapters 316
59and 985.;
60     (d)  Of all felonies and of all misdemeanors arising out of
61the same circumstances as a felony which is also charged.;
62     (e)  In all cases involving legality of any tax assessment
63or 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
66real property.
67     (h)  In all actions not resolved by arbitration involving
68the Florida Motor Vehicle No-Fault Law, codified in ss. 627.730-
70     Section 2.  Subsection (3) is added to section 627.4137,
71Florida Statutes, to read:
72     627.4137  Disclosure of certain information required.-
73     (3)  Any request made to a self-insured corporation under
74this section must be sent via United States certified mail to
75the registered agent of the disclosing entity.
76     Section 3.  Section 627.731, Florida Statutes, is amended
77to read:
78     627.731  Purpose and legislative intent.-
79     (1)  The purpose of ss. 627.730-627.7405 is to provide for
80medical, surgical, funeral, and disability insurance benefits
81without regard to fault, and to require motor vehicle insurance
82securing such benefits, for motor vehicles required to be
83registered in this state and, with respect to motor vehicle
84accidents, a limitation on the right to claim damages for pain,
85suffering, mental anguish, and inconvenience.
86     (2)  It is the intent of the Legislature to balance the
87insured's interest in prompt payment of valid claims for no-
88fault insurance benefits with the public's interest in reducing
89fraud, abuse, and overuse of the no-fault system. To these ends,
90the intent of this act is to enhance the investigation and
91prevention of fraudulent insurance acts in this state, to remove
92incentives for manufactured litigation, and to revise provisions
93of law that may create incentives for fraudulent insurance acts.
94As such, ss. 627.730-627.7405 shall be construed according to
95the plain language of the statutory provisions which are
96designed to meet these goals.
97     (3)  It is the further intent of the Legislature that the
98provisions, schedules, and procedures authorized in ss. 627.730-
99627.7405 be implemented by the insurers who offer personal
100injury protection benefits. Provisions, schedules, and
101procedures authorized in ss. 627.730-627.7405 have full force
102and effect regardless of their inclusion in an insurance policy
103form, and an insurer is not required to amend its policy form to
104utilize provisions, schedules, or procedures specifically
105authorized by the Florida Motor Vehicle No-Fault law.
106     Section 4.  Paragraph (a) of subsection (5), paragraph (b)
107of subsection (6), paragraph (b) of subsection (7), and
108subsection (8) of section 627.736, Florida Statutes, are
109amended, present subsection (16) is redesignated as subsection
110(17), and new subsections (16) and (18) are added to that
111section, to read:
112     627.736  Required personal injury protection benefits;
113exclusions; priority; claims.-
115     (a)1.  Any physician, hospital, clinic, or other person or
116institution lawfully rendering treatment to an injured person
117for a bodily injury covered by personal injury protection
118insurance may charge the insurer and injured party only a
119reasonable amount pursuant to this section for the services and
120supplies rendered, and the insurer providing such coverage may
121pay for such charges directly to such person or institution
122lawfully rendering such treatment, if the insured receiving such
123treatment or his or her guardian has countersigned the properly
124completed invoice, bill, or claim form approved by the office
125upon which such charges are to be paid for as having actually
126been rendered, to the best knowledge of the insured or his or
127her guardian. In no event, however, may such a charge be in
128excess of the amount the person or institution customarily
129charges for like services or supplies. With respect to a
130determination of whether a charge for a particular service,
131treatment, or otherwise is reasonable, consideration may be
132given to evidence of usual and customary charges and payments
133accepted by the provider involved in the dispute, and
134reimbursement levels in the community and various federal and
135state medical fee schedules applicable to automobile and other
136insurance coverages, and other information relevant to the
137reasonableness of the reimbursement for the service, treatment,
138or supply.
139     2.  The insurer may limit reimbursement to 80 percent of
140the following schedule of maximum charges:
141     a.  For emergency transport and treatment by providers
142licensed under chapter 401, 200 percent of Medicare.
143     b.  For emergency services and care provided by a hospital
144licensed under chapter 395, 75 percent of the hospital's usual
145and customary charges.
146     c.  For emergency services and care as defined by s.
147395.002(9) provided in a facility licensed under chapter 395
148rendered by a physician or dentist, and related hospital
149inpatient services rendered by a physician or dentist, the usual
150and customary charges in the community.
151     d.  For hospital inpatient services, other than emergency
152services and care, 200 percent of the Medicare Part A
153prospective payment applicable to the specific hospital
154providing the inpatient services.
155     e.  For hospital outpatient services, other than emergency
156services and care, 200 percent of the Medicare Part A Ambulatory
157Payment Classification for the specific hospital providing the
158outpatient services.
159     f.  For all other medical services, supplies, and care,
160including durable medical equipment and care and services
161rendered by clinical laboratories, 200 percent of the allowable
162amount under the participating physicians schedule of Medicare
163Part B. However, if such services, supplies, or care is not
164reimbursable under Medicare Part B, or if the care and services
165are rendered in an ambulatory surgical center, the insurer may
166limit reimbursement to 80 percent of the maximum reimbursable
167allowance under workers' compensation, as determined under s.
168440.13 and rules adopted thereunder which are in effect at the
169time such services, supplies, or care is provided. Services,
170supplies, or care that is not reimbursable under Medicare or
171workers' compensation is not required to be reimbursed by the
173     3.  For purposes of subparagraph 2., the applicable fee
174schedule or payment limitation under Medicare is the fee
175schedule or payment limitation that was in effect as of January
1761 of the year in which at the time the services, supplies, or
177care was rendered and for the area in which such services were
178rendered and shall apply throughout the remainder of the year,
179notwithstanding any subsequent changes made to such fee schedule
180or payment limitation, except that it may not be less than the
181allowable amount under the participating physicians schedule of
182Medicare Part B for 2007 for medical services, supplies, and
183care subject to Medicare Part B.
184     4.  Subparagraph 2. does not allow the insurer to apply any
185limitation on the number of treatments or other utilization
186limits that apply under Medicare or workers' compensation. An
187insurer that applies the allowable payment limitations of
188subparagraph 2. must reimburse a provider who lawfully provided
189care or treatment under the scope of his or her license,
190regardless of whether such provider would be entitled to
191reimbursement under Medicare due to restrictions or limitations
192on the types or discipline of health care providers who may be
193reimbursed for particular procedures or procedure codes.
194     5.  If an insurer limits payment as authorized by
195subparagraph 2., the person providing such services, supplies,
196or care may not bill or attempt to collect from the insured any
197amount in excess of such limits, except for amounts that are not
198covered by the insured's personal injury protection coverage due
199to the coinsurance amount or maximum policy limits.
201     (b)  Every physician, hospital, clinic, or other medical
202institution providing, before or after bodily injury upon which
203a claim for personal injury protection insurance benefits is
204based, any products, services, or accommodations in relation to
205that or any other injury, or in relation to a condition claimed
206to be connected with that or any other injury, shall, if
207requested to do so by the insurer against whom the claim has
208been made, furnish forthwith a written report of the history,
209condition, treatment, dates, and costs of such treatment of the
210injured person and why the items identified by the insurer were
211reasonable in amount and medically necessary, together with a
212sworn statement that the treatment or services rendered were
213reasonable and necessary with respect to the bodily injury
214sustained and identifying which portion of the expenses for such
215treatment or services was incurred as a result of such bodily
216injury, and produce forthwith, and permit the inspection and
217copying of, his or her or its records regarding such history,
218condition, treatment, dates, and costs of treatment; provided
219that this shall not limit the introduction of evidence at trial.
220Such sworn statement shall read as follows: "Under penalty of
221perjury, I declare that I have read the foregoing, and the facts
222alleged are true, to the best of my knowledge and belief." No
223cause of action for violation of the physician-patient privilege
224or invasion of the right of privacy shall be permitted against
225any physician, hospital, clinic, or other medical institution
226complying with the provisions of this section. The person
227requesting such records and such sworn statement shall pay all
228reasonable costs connected therewith. If an insurer makes a
229written request for documentation or information under this
230paragraph within 30 days after having received notice of the
231amount of a covered loss under paragraph (4)(a), the amount or
232the partial amount which is the subject of the insurer's inquiry
233shall become overdue if the insurer does not pay in accordance
234with paragraph (4)(b) or within 10 days after the insurer's
235receipt of the requested documentation or information, whichever
236occurs later. For purposes of this paragraph, the term "receipt"
237includes, but is not limited to, inspection and copying pursuant
238to this paragraph. Any insurer that requests documentation or
239information pertaining to reasonableness of charges or medical
240necessity under this paragraph without a reasonable basis for
241such requests as a general business practice is engaging in an
242unfair trade practice under the insurance code. If an insured
243seeking to recover benefits under ss. 627.730-627.7405 assigns
244the contractual right to those benefits or the payment of those
245benefits to any person or entity, the assignee shall comply with
246the terms of the policy, and both the insured and the assignee
247shall be obligated to cooperate under the policy, which
248includes, but is not limited to, submitting to examinations
249under oath. Compliance with this paragraph is a condition
250precedent to the recovery of benefits under ss. 627.730-
251627.7405. If an insurer requests an examination under oath of a
252medical provider, the provider must produce those individuals
253with the most knowledge of the issues identified by the insurer
254in the request for examination under oath. All claimants must
255produce and provide for inspection all documents requested by
256the insurer that are reasonably obtainable by the claimant.
257Examinations under oath may be recorded by audio, video, court
258reporter, or any combination thereof. Any insurer that, as a
259general practice, requests examinations under oath without a
260reasonable basis is engaging in an unfair and deceptive trade
264     (b)  If requested by the person examined, a party causing
265an examination to be made shall deliver to him or her a copy of
266every written report concerning the examination rendered by an
267examining physician, at least one of which reports must set out
268the examining physician's findings and conclusions in detail.
269After such request and delivery, the party causing the
270examination to be made is entitled, upon request, to receive
271from the person examined every written report available to him
272or her or his or her representative concerning any examination,
273previously or thereafter made, of the same mental or physical
274condition. By requesting and obtaining a report of the
275examination so ordered, or by taking the deposition of the
276examiner, the person examined waives any privilege he or she may
277have, in relation to the claim for benefits, regarding the
278testimony of every other person who has examined, or may
279thereafter examine, him or her in respect to the same mental or
280physical condition. If a person unreasonably refuses to submit
281to an examination, the personal injury protection carrier is no
282longer liable for subsequent personal injury protection benefits
283incurred after the date of the first request for examination.
284Failure to appear for an examination creates a rebuttable
285presumption that the failure was an unreasonable refusal.
286Submission to an examination is a condition precedent to
289FEES.-With respect to any dispute under the provisions of ss.
290627.730-627.7405 between the insured and the insurer, or between
291an assignee of an insured's rights and the insurer, or between
292any entity or person seeking payment of benefits pursuant to the
293terms of the policy, the provisions of s. 627.428 shall apply,
294except as provided in subsections (10), (15), and (18)(15). Any
295attorney's fees recovered under ss. 627.730-627.7405 shall be
296limited to the lesser of $10,000 or treble the disputed amount
297recovered by the attorney under ss. 627.730-627.7405. Attorney's
298fees in a class action under ss. 627.730-627.7405 are limited to
299the lesser of $50,000 or treble the total of the disputed amount
300recovered in the class action proceeding.
301     (16)  ATTORNEYS' FEES.-Notwithstanding s. 627.428, the
302attorney's fees recovered under ss. 627.730-627.7405 shall be
303calculated without regard to any contingency risk multiplier.
304     (17)(16)  SECURE ELECTRONIC DATA TRANSFER.-If all parties
305mutually and expressly agree, a notice, documentation,
306transmission, or communication of any kind required or
307authorized under ss. 627.730-627.7405 may be transmitted
308electronically if it is transmitted by secure electronic data
309transfer that is consistent with state and federal privacy and
310security laws.
312     (a)  In order to expedite the resolution of disputes
313arising from contracts involving personal injury protection
314benefits, an insurer may offer a policy that requires or allows
315the insurer, an insured, or any other claimant under the policy
316to make a demand for arbitration for any claims dispute
317involving personal injury protection benefits before filing a
318lawsuit and in lieu of litigation, with the exception of an
319appeal pursuant to paragraph (i). Before making a demand for
320arbitration, a claimant must comply with the conditions under
321subsection (10). A demand for arbitration must be in writing and
322furnished to the nonrequesting party via United States certified
323mail. Arbitration may not be held until at least 30 days after
324the request for arbitration is received by the nonrequesting
325party and at least 20 days after all the requested documentation
326discoverable under paragraphs (e) and (f) is received. Unless
327otherwise provided in this subsection, arbitration is governed
328by chapter 682, the Florida Arbitration Code.
329     (b)  The arbitration must take place in the county where
330the treatment was rendered. If the treatment was rendered
331outside this state, arbitration must take place in the county
332where the insured resides, unless the parties agree to another
334     (c)  The arbitration panel must be made up of three
335arbitrators. Each party must select a competent and impartial
336arbitrator. The two arbitrators selected by the parties must
337select a third arbitrator. If the two arbitrators selected by
338the parties are unable to agree on the selection of a third
339arbitrator within 30 days, either party may request a circuit
340court judge in the county where the arbitration is pending to
341select a third arbitrator. If this method fails or for any
342reason cannot be followed, or an arbitrator who has been
343appointed fails to act and a successor has not been duly
344appointed, the court, on application of an insurer or claimant,
345must appoint one or more arbitrators. An arbitrator so appointed
346has the same powers as an arbitrator named or provided for in
347the policy providing personal injury protection benefits.
348     (d)  The decision of a majority of the arbitrators is
349binding on each party, unless appealed under paragraph (i). The
350decision of the arbitrators must be furnished in writing to each
352     (e)  Upon written request before arbitration, the
353appropriate provider must make available for inspection or
354copying the entire file pertaining to the patient whose benefits
355are the subject of arbitration. Arbitration may not be held
356until 30 days after the required written demand for arbitration
357is received and an insured's file is supplied to the insurer.
358     (f)  Upon written request before arbitration, the insurer
359must provide for the inspection or copying of the evidence upon
360which it relies in adjusting or rejecting the claim. However,
361the insurer is not required to produce privileged items from its
362claims or underwriting files or documents or items which it does
363not intend to rely upon as evidence to support its adjustment or
364rejection of the claim. This paragraph only authorizes discovery
365from the insurer of items relating to insurance coverage and
366does not authorize discovery pertaining to any issue relating to
367the handling of claims.
368     (g)  An arbitration award may not exceed the applicable
369limits of coverage remaining on the policy.
370     (h)1.  The prevailing party is entitled to reimbursement of
371reasonable attorney's fees and costs directly associated with
372the arbitration. A claim for attorney's fees is limited to the
373lesser of $10,000 or treble the amount of the benefits secured
374in the arbitration process, or in the case of a class action,
375attorney's fees are limited to the lesser of $50,000 or treble
376the total amount of the benefits secured in the arbitration
378     2.  For purposes of this section, the prevailing party is:
379     a.  The claimant if the award is greater than 50 percent
380above the amount the insurer offered before arbitration; or
381     b.  The insurer if the award is less than 50 percent above
382the amount the insurer offered before arbitration.
383     3.  If there is no prevailing party, each party must pay
384its own costs and attorney's fees and share equally in the
385payment of the costs incurred on both parties' behalf, including
386the costs of a third arbitrator.
387     (i)  Either party may appeal the arbitration decision by
388filing an appeal in circuit court with a copy of the arbitration
389decision attached. However, if the insurer pays the amount
390awarded in the arbitration, but the claimant, assignee, or
391insured seeking benefits under the insurance policy appeals the
392arbitration decision in circuit court, s. 627.428 does not
393apply. An appeal of the arbitration decision is limited to a
394review on the record and is not a de novo review. Interest on
395the amount in dispute does not accrue during the course of an
397     Section 5.  This act shall take effect upon becoming a law.

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