CS/CS/HB 967

A bill to be entitled
2An act relating to personal injury protection insurance;
3amending s. 26.012, F.S.; providing that the circuit court
4has exclusive original jurisdiction in actions involving
5challenges to arbitration decisions under the Florida
6Motor Vehicle No-Fault Law; amending s. 627.4137, F.S.;
7requiring requests made to a self-insured corporation for
8disclosure of certain information to be by certified mail;
9creating s. 627.7311, F.S.; providing for the effect of
10specified statutory provisions, schedules, and procedures
11on insurance policies; amending s. 627.736, F.S.;
12requiring an insured seeking benefits to comply with
13policy terms as a condition precedent to receiving
14benefits; revising a reference to Medicare Part B payments
15as the schedule for an insurer's discretionary use when
16limiting reimbursement of certain medical services,
17supplies, and care; specifying the Medicare fee schedule
18or payment limitation that is to be used by an insurer to
19limit reimbursements for certain medical services,
20supplies, and care; requiring that an insurer under
21certain circumstances notify a provider of an improperly
22completed form and provide an opportunity to submit a
23completed form within a specified time; requiring any
24assignee of benefits or payments to cooperate under the
25terms of the policy; requiring a provider who is assigned
26the benefits of an insured to submit to examination under
27oath under certain circumstances; requiring a provider to
28produce certain knowledgeable individuals for examination
29under oath under certain circumstances; requiring certain
30records be provided by claimants for inspection if
31requested by an insurer; authorizing methods for recording
32examinations under oath; providing that certain actions by
33an insurer constitute an unfair and deceptive trade
34practice; subjecting insurers to penalties for an unfair
35and deceptive trade practice; creating a presumption
36relating to failing to appear for an examination;
37specifying that submitting to an examination is a
38condition precedent to receiving benefits; providing for
39application relating to attorney's fees; limiting the
40amount of recoverable attorney's fees; prohibiting the use
41of a contingency risk multiplier when calculating
42attorney's fees; authorizing binding arbitration as a
43policy provision for dispute resolution; providing
44requirements and procedures relating to arbitration;
45providing for the recovery of specified attorney's fees
46and the responsibility for payment of costs in
47arbitration; providing for a judicial challenge of an
48arbitration decision; providing for the scope of review
49relating to such challenge; providing that s. 627.428,
50F.S., relating to attorneys' fees, does not apply to a
51challenge of an arbitration decision; prohibiting the
52accrual of interest during litigation of such challenge
53under certain circumstances; providing an effective date.
55Be It Enacted by the Legislature of the State of Florida:
57     Section 1.  Subsection (2) of section 26.012, Florida
58Statutes, is amended to read:
59     26.012  Jurisdiction of circuit court.-
60     (2)  The circuit court They shall have exclusive original
62     (a)  In all actions at law not cognizable by the county
64     (b)  Of proceedings relating to the settlement of the
65estates of decedents and minors, the granting of letters
66testamentary, guardianship, involuntary hospitalization, the
67determination of incompetency, and other jurisdiction usually
68pertaining to courts of probate.;
69     (c)  In all cases in equity including all cases relating to
70juveniles except traffic offenses as provided in chapters 316
71and 985.;
72     (d)  Of all felonies and of all misdemeanors arising out of
73the same circumstances as a felony which is also charged.;
74     (e)  In all cases involving legality of any tax assessment
75or toll or denial of refund, except as provided in s. 72.011.;
76     (f)  In actions of ejectment.; and
77     (g)  In all actions involving the title and boundaries of
78real property.
79     (h)  In all actions involving the Florida Motor Vehicle No-
80Fault Law, ss. 627.730-627.7405, where arbitration is initiated
81pursuant to s. 627.736(19) and the arbitration decision is
83     Section 2.  Subsection (3) is added to section 627.4137,
84Florida Statutes, to read:
85     627.4137  Disclosure of certain information required.-
86     (3)  Any request made to a self-insured corporation
87pursuant to this section shall be sent by certified mail to the
88registered agent of the disclosing entity.
89     Section 3.  Section 627.7311, Florida Statutes, is created
90to read:
91     627.7311  Effect of law on policies.-The provisions,
92schedules, and procedures authorized in ss. 627.730-627.7405
93shall be implemented by the insurers offering policies pursuant
94to the Florida Motor Vehicle No-Fault Law. These provisions,
95schedules, and procedures have full force and effect regardless
96of their express inclusion in an insurance policy, and an
97insurer is not required to amend its policy to implement and
98apply such provisions, schedules, or procedures.
99     Section 4.  Paragraph (i) is added to subsection (4) of
100section 627.736, Florida Statutes, paragraphs (a) and (d) of
101subsection (5), paragraph (b) of subsection (6), paragraph (b)
102of subsection (7), and subsection (8) of that section are
103amended, and subsections (17), (18), and (19) are added to that
104section, to read:
105     627.736  Required personal injury protection benefits;
106exclusions; priority; claims.-
107     (4)  BENEFITS; WHEN DUE.-Benefits due from an insurer under
108ss. 627.730-627.7405 shall be primary, except that benefits
109received under any workers' compensation law shall be credited
110against the benefits provided by subsection (1) and shall be due
111and payable as loss accrues, upon receipt of reasonable proof of
112such loss and the amount of expenses and loss incurred which are
113covered by the policy issued under ss. 627.730-627.7405. When
114the Agency for Health Care Administration provides, pays, or
115becomes liable for medical assistance under the Medicaid program
116related to injury, sickness, disease, or death arising out of
117the ownership, maintenance, or use of a motor vehicle, benefits
118under ss. 627.730-627.7405 shall be subject to the provisions of
119the Medicaid program.
120     (i)  In all circumstances, an insured seeking benefits
121under ss. 627.730-627.7405 must comply with the terms of the
122policy, which includes, but is not limited to, submitting to
123examinations under oath. Compliance with this paragraph is a
124condition precedent to receiving benefits.
126     (a)1.  Any physician, hospital, clinic, or other person or
127institution lawfully rendering treatment to an injured person
128for a bodily injury covered by personal injury protection
129insurance may charge the insurer and injured party only a
130reasonable amount pursuant to this section for the services and
131supplies rendered, and the insurer providing such coverage may
132pay for such charges directly to such person or institution
133lawfully rendering such treatment, if the insured receiving such
134treatment or his or her guardian has countersigned the properly
135completed invoice, bill, or claim form approved by the office
136upon which such charges are to be paid for as having actually
137been rendered, to the best knowledge of the insured or his or
138her guardian. In no event, However, may such a charge may not
139exceed be in excess of the amount the person or institution
140customarily charges for like services or supplies. When
141determining With respect to a determination of whether a charge
142for a particular service, treatment, or otherwise is reasonable,
143consideration may be given to evidence of usual and customary
144charges and payments accepted by the provider involved in the
145dispute, and reimbursement levels in the community and various
146federal and state medical fee schedules applicable to automobile
147and other insurance coverages, and other information relevant to
148the reasonableness of the reimbursement for the service,
149treatment, or supply.
150     1.2.  The insurer may limit reimbursement to 80 percent of
151the following schedule of maximum charges:
152     a.  For emergency transport and treatment by providers
153licensed under chapter 401, 200 percent of Medicare.
154     b.  For emergency services and care provided by a hospital
155licensed under chapter 395, 75 percent of the hospital's usual
156and customary charges.
157     c.  For emergency services and care as defined by s.
158395.002(9) provided in a facility licensed under chapter 395
159rendered by a physician or dentist, and related hospital
160inpatient services rendered by a physician or dentist, the usual
161and customary charges in the community.
162     d.  For hospital inpatient services, other than emergency
163services and care, 200 percent of the Medicare Part A
164prospective payment applicable to the specific hospital
165providing the inpatient services.
166     e.  For hospital outpatient services, other than emergency
167services and care, 200 percent of the Medicare Part A Ambulatory
168Payment Classification for the specific hospital providing the
169outpatient services.
170     f.  For all other medical services, supplies, and care, 200
171percent of the allowable amount under the participating
172physicians schedule of Medicare Part B. For all other supplies
173and care, including durable medical equipment and care and
174services rendered by ambulatory surgical centers and clinical
175laboratories, 200 percent of the allowable amount under Medicare
176Part B. However, if such services, supplies, or care is not
177reimbursable under Medicare Part B, the insurer may limit
178reimbursement to 80 percent of the maximum reimbursable
179allowance under workers' compensation, as determined under s.
180440.13 and rules adopted thereunder which are in effect at the
181time such services, supplies, or care is provided. Services,
182supplies, or care that is not reimbursable under Medicare or
183workers' compensation is not required to be reimbursed by the
185     2.3.  For purposes of subparagraph 1. 2., the applicable
186fee schedule or payment limitation under Medicare is the fee
187schedule or payment limitation in effect on January 1 of the
188year in which at the time the services, supplies, or care was
189rendered and for the area in which such services were rendered,
190and shall apply throughout the remainder of the year,
191notwithstanding any subsequent changes made to such fee schedule
192or payment limitation, except that it may not be less than the
193allowable amount under the participating physicians schedule of
194Medicare Part B for 2007 for medical services, supplies, and
195care subject to Medicare Part B.
196     3.4.  Subparagraph 1. 2. does not allow the insurer to
197apply any limitation on the number of treatments or other
198utilization limits that apply under Medicare or workers'
199compensation. An insurer that applies the allowable payment
200limitations of subparagraph 1. 2. must reimburse a provider who
201lawfully provided care or treatment under the scope of his or
202her license, regardless of whether such provider is would be
203entitled to reimbursement under Medicare due to restrictions or
204limitations on the types or discipline of health care providers
205who may be reimbursed for particular procedures or procedure
207     4.5.  If an insurer limits payment as authorized by
208subparagraph 1. 2., the person providing such services,
209supplies, or care may not bill or attempt to collect from the
210insured any amount in excess of such limits, except for amounts
211that are not covered by the insured's personal injury protection
212coverage due to the coinsurance amount or maximum policy limits.
213     (d)  All statements and bills for medical services rendered
214by any physician, hospital, clinic, or other person or
215institution shall be submitted to the insurer on a properly
216completed Centers for Medicare and Medicaid Services (CMS) 1500
217form, UB 92 forms, or any other standard form approved by the
218office or adopted by the commission for purposes of this
219paragraph. All billings for such services rendered by providers
220shall, to the extent applicable, follow the Physicians' Current
221Procedural Terminology (CPT) or Healthcare Correct Procedural
222Coding System (HCPCS), or ICD-9 in effect for the year in which
223services are rendered and comply with the Centers for Medicare
224and Medicaid Services (CMS) 1500 form instructions and the
225American Medical Association Current Procedural Terminology
226(CPT) Editorial Panel and Healthcare Correct Procedural Coding
227System (HCPCS). All providers other than hospitals shall include
228on the applicable claim form the professional license number of
229the provider in the line or space provided for "Signature of
230Physician or Supplier, Including Degrees or Credentials." In
231determining compliance with applicable CPT and HCPCS coding,
232guidance shall be provided by the Physicians' Current Procedural
233Terminology (CPT) or the Healthcare Correct Procedural Coding
234System (HCPCS) in effect for the year in which services were
235rendered, the Office of the Inspector General (OIG), Physicians
236Compliance Guidelines, and other authoritative treatises
237designated by rule by the Agency for Health Care Administration.
238A No statement of medical services may not include charges for
239medical services of a person or entity that performed such
240services without possessing the valid licenses required to
241perform such services. For purposes of paragraph (4)(b), an
242insurer is shall not be considered to have been furnished with
243notice of the amount of covered loss or medical bills due unless
244the statements or bills comply with this paragraph, and unless
245the statements or bills are properly completed in their entirety
246as to all material provisions, with all relevant information
247being provided therein. If an insurer denies a claim under this
248section due to the failure of a provider to provide a properly
249completed form required by this paragraph, the insurer shall
250notify the provider as to the provisions that were improperly
251completed and shall give the provider 15 days to submit a
252completed form.
254     (b)  Every physician, hospital, clinic, or other medical
255institution providing, before or after bodily injury upon which
256a claim for personal injury protection insurance benefits is
257based, any products, services, or accommodations in relation to
258that or any other injury, or in relation to a condition claimed
259to be connected with that or any other injury, shall, if
260requested to do so by the insurer against whom the claim has
261been made, furnish forthwith a written report of the history,
262condition, treatment, dates, and costs of such treatment of the
263injured person and why the items identified by the insurer were
264reasonable in amount and medically necessary, together with a
265sworn statement that the treatment or services rendered were
266reasonable and necessary with respect to the bodily injury
267sustained and identifying which portion of the expenses for such
268treatment or services was incurred as a result of such bodily
269injury, and produce forthwith, and permit the inspection and
270copying of, his or her or its records regarding such history,
271condition, treatment, dates, and costs of treatment if; provided
272that this does shall not limit the introduction of evidence at
273trial. Such sworn statement must shall read as follows: "Under
274penalty of perjury, I declare that I have read the foregoing,
275and the facts alleged are true, to the best of my knowledge and
276belief." A No cause of action for violation of the physician-
277patient privilege or invasion of the right of privacy may not be
278brought shall be permitted against any physician, hospital,
279clinic, or other medical institution complying with the
280provisions of this section. The person requesting such records
281and such sworn statement shall pay all reasonable costs
282connected therewith. If an insurer makes a written request for
283documentation or information under this paragraph within 30 days
284after having received notice of the amount of a covered loss
285under paragraph (4)(a), the amount or the partial amount that
286which is the subject of the insurer's inquiry is shall become
287overdue if the insurer does not pay in accordance with paragraph
288(4)(b) or within 10 days after the insurer's receipt of the
289requested documentation or information, whichever occurs later.
290For purposes of this paragraph, the term "receipt" includes, but
291is not limited to, inspection and copying pursuant to this
292paragraph. An Any insurer that requests documentation or
293information pertaining to reasonableness of charges or medical
294necessity under this paragraph without a reasonable basis for
295such requests as a general business practice is engaging in an
296unfair trade practice under the insurance code.
297     1.  If an insured seeking to recover benefits under ss.
298627.730-627.7405 assigns the contractual right to those benefits
299or the payment of those benefits to any person or entity, the
300assignee shall comply with the terms of the policy. In all
301circumstances, the assignee shall be obligated to cooperate
302under the policy, which includes, but is not limited to,
303participation in an examination under oath. For time spent in an
304examination under oath, the assignee is entitled to reasonable
305compensation from the insurer. Compliance with this paragraph is
306a condition precedent to the recovery of benefits under ss.
307627.730-627.7405. If an insurer requests an examination under
308oath of a medical provider, the provider must produce those
309individuals with the most knowledge of the issues identified by
310the insurer in the request for examination under oath. All
311claimants must produce and provide for inspection all documents
312requested by the insurer that are reasonably obtainable by the
313claimant. Examinations under oath may be recorded by audio,
314video, court reporter, or any combination thereof.
315     2.  Prior to requesting that an assignee participate in an
316examination under oath, the insurer must provide a written
317request of the assignee for all information that the insurer
318believes is necessary to the processing of the claim, including
319the information contemplated in subparagraph 1. An assignee is
320not relieved from the provisions of this subparagraph simply by
321providing the information contemplated in subparagraph 1.
322     3.  Any insurer that, as a general practice, requests
323examinations under oath without a reasonable basis is engaging
324in an unfair and deceptive trade practice.
327     (b)  If requested by the person examined, a party causing
328an examination to be made shall deliver to him or her a copy of
329every written report concerning the examination rendered by an
330examining physician, at least one of which reports must set out
331the examining physician's findings and conclusions in detail.
332After such request and delivery, the party causing the
333examination to be made is entitled, upon request, to receive
334from the person examined every written report available to him
335or her or his or her representative concerning any examination,
336previously or thereafter made, of the same mental or physical
337condition. By requesting and obtaining a report of the
338examination so ordered, or by taking the deposition of the
339examiner, the person examined waives any privilege he or she may
340have, in relation to the claim for benefits, regarding the
341testimony of every other person who has examined, or may
342thereafter examine, him or her in respect to the same mental or
343physical condition. If a person unreasonably refuses to submit
344to an examination, the personal injury protection carrier is no
345longer liable for subsequent personal injury protection benefits
346incurred after the date of the requested examination. Failure to
347appear for an examination raises a rebuttable presumption that
348such failure was unreasonable. Submission to an examination is a
349condition precedent to receiving benefits.
351FEES.-With respect to any dispute under the provisions of ss.
352627.730-627.7405 between the insured and the insurer, or between
353an assignee of an insured's rights and the insurer, the
354provisions of s. 627.428 shall apply, except as provided in
355subsections (10) and (15) and except that any attorney's fees
356recovered are limited to the lesser of $200 per billable hour
358     (a)  For any disputed amount of less than $500, 15 times
359any disputed amount recovered by the attorney under ss. 627.730-
360627.7405, limited to a total of $5,000;
361     (b)  For any disputed amount of $500 or more and less than
362$5,000, 10 times any disputed amount recovered by the attorney
363under ss. 627.730-627.7405, limited to a total of $10,000; or
364     (c)  For any disputed amount of $5,000 or more and up to
365$10,000, 5 times any disputed amount recovered by the attorney
366under ss. 627.730-627.7405, limited to a total of $15,000.
367     (17)  CLASS ACTIONS.-Attorney's fees in a class action
368under ss. 627.730-627.7405 are limited to the lesser of $50,000
369or three times the total of any disputed amount recovered in the
370class action proceeding.
371     (18)  ATTORNEY'S FEES.-Notwithstanding s. 627.428, the
372attorney's fees recovered under ss. 627.730-627.7405 shall be
373calculated without regard to any contingency risk multiplier.
374     (19)  ARBITRATION.-In order to provide for an expedited,
375cost-effective, and fair resolution of disputes arising from
376contracts for personal injury protection benefits, an insurer
377may offer a policy that requires or allows the insurer or
378claimant to demand arbitration of any claims dispute involving
379personal injury protection benefits prior to filing a lawsuit
380and in lieu of litigation. Arbitration is subject to the Florida
381Arbitration Code, except as otherwise provided in this section.
382In addition:
383     (a)  A demand for arbitration must be made in writing by
384certified mail, and the arbitration must be held within 60 days
385after the receipt of a request for arbitration. The 60-day
386period may not be tolled for discovery of documents pursuant to
387paragraph (d).
388     (b)  Arbitration shall take place in the county in which
389the treatment was rendered. If treatment was rendered outside
390the state, arbitration shall take place in the county in which
391the insured resides unless the parties agree to another
393     (c)  The arbitration shall be conducted by a single
394arbitrator. The Department of Financial Services shall adopt by
395rule procedures to implement this arbitration program including:
396     1.  Reasonable requirements for the processing and
397scheduling of requests for arbitration;
398     2.  Qualifications of arbitrators;
399     3.  Selection of arbitrators;
400     4.  Fees charged by arbitrators; and
401     5.  Criteria for the conduct of arbitration.
402     (d)1.  The claimant shall make available for inspection or
403copying the medical and other records on which the claimant
404intends to rely at arbitration, upon written request by the
405insurer or his or her attorney, within 15 days after receipt of
406such request.
407     2.  The insurer shall make available for inspection or
408copying all documents, records, or information upon which it is
409relying in adjusting or rejecting the claim, upon written
410request by the claimant or his or her attorney, within 10 days
411after receipt of such request.
412     3.  Discovery of insurer documents, records, or information
413shall be limited to those relating to insurance coverage. The
414insurer is not required to produce claims-privileged items,
415underwriting files, or documents that it does not intend to rely
416on at arbitration.
417     4.  There shall be no discovery relating to general claims-
418handling practices.
419     (e)  The decision of the arbitrator shall be set forth in
420writing and furnished to each party within 30 days after the
421arbitration. The decision shall be binding on each party unless
422challenged pursuant to paragraph (g). An arbitration award may
423not exceed the applicable limits of coverage remaining on the
425     (f)  The claimant is entitled to reimbursement of
426attorney's fees directly associated with the arbitration,
427subject to subsection (8). The award of fees must be set forth
428in the arbitration decision. The insurer is responsible for
429payment of the arbitrator fees and expenses, court reporter
430fees, and any facility fees associated with the arbitration
431proceedings. All costs and other expenses incurred during the
432preparation, discovery, and arbitration proceedings shall be
433paid by the parties incurring the expenses.
434     (g)1.  A party may challenge the arbitration decision by
435filing a complaint in circuit court within 20 days after the
436receipt of the arbitration decision.
437     2.  Review of the arbitration shall be de novo.
438     3.  Section 627.428 does not apply, and interest on the
439amount in dispute may not accrue during the course of
440litigation, if the insurer has tendered payment of the amount of
441the arbitration award to the claimant.
442     Section 5.  This act shall take effect July 1, 2011.

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