Florida Senate - 2017                             CS for SB 1550
       By the Committee on Health Policy; and Senators Grimsley and
       588-03372-17                                          20171550c1
    1                        A bill to be entitled                      
    2         An act relating to health information transparency;
    3         amending s. 408.05, F.S.; requiring the Agency for
    4         Health Care Administration to contract with a vendor
    5         to evaluate health information technology activities
    6         to identify best practices and methods to increase
    7         interoperability; requiring a report to the
    8         Legislature by a specified date; amending s. 409.901,
    9         F.S.; revising the definition of the term “third
   10         party” for purposes of liability for payment of
   11         certain medical services covered by Medicaid; amending
   12         s. 409.910, F.S.; revising provisions relating to
   13         responsibility for Medicaid payments in settlement
   14         proceedings; extending the period of time for filing a
   15         claim of lien filed for purposes of third-party
   16         liability; extending the period of time within which
   17         the agency is authorized to pursue certain causes of
   18         action; revising procedures for a recipient to contest
   19         the amount payable to the agency when federal law
   20         limits reimbursement under certain circumstances;
   21         requiring certain entities responsible for payment of
   22         claims to provide certain records and information and
   23         respond to requests for payment of claims within a
   24         specified timeframe as a condition of doing business
   25         in the state; providing circumstances under which such
   26         parties are obligated to pay claims; deleting
   27         provisions relating to cooperative agreements between
   28         the agency, the Office of Insurance Regulation, and
   29         the Department of Revenue; providing an effective
   30         date.
   32  Be It Enacted by the Legislature of the State of Florida:
   34         Section 1. Present paragraphs (d) through (j) of subsection
   35  (3) of section 408.05, Florida Statutes, are redesignated as
   36  paragraphs (e) through (k), respectively, and a new paragraph
   37  (d) is added to that subsection, to read:
   38         408.05 Florida Center for Health Information and
   39  Transparency.—
   40         (3) HEALTH INFORMATION TRANSPARENCY.—In order to
   41  disseminate and facilitate the availability of comparable and
   42  uniform health information, the agency shall perform the
   43  following functions:
   44         (d)Contract with a vendor to evaluate health information
   45  technology activities within the state. The vendor shall
   46  identify best practices for developing data systems which will
   47  leverage existing public and private health care data sources to
   48  provide health care providers with real-time access to their
   49  patients’ health records. The evaluation shall identify methods
   50  to increase interoperability across delivery systems regardless
   51  of geographic location and include a review of eligibility for
   52  public programs or private insurance to ensure that health care
   53  services, including Medicaid services, are clinically
   54  appropriate. The evaluation shall address cost-avoidance through
   55  the elimination of duplicative services or overutilization of
   56  services. The agency shall submit a report of the vendor’s
   57  findings and recommendations to the President of the Senate and
   58  the Speaker of the House of Representatives by December 31,
   59  2017.
   60         Section 2. Subsection (27) of section 409.901, Florida
   61  Statutes, is amended to read:
   62         409.901 Definitions; ss. 409.901-409.920.—As used in ss.
   63  409.901-409.920, except as otherwise specifically provided, the
   64  term:
   65         (27) “Third party” means an individual, entity, or program,
   66  excluding Medicaid, that is, may be, could be, should be, or has
   67  been liable for all or part of the cost of medical services
   68  related to any medical assistance covered by Medicaid. A third
   69  party includes a third-party administrator; or a pharmacy
   70  benefits manager; health insurer; self-insured plan; group
   71  health plan, as defined in s. 607(1) of the Employee Retirement
   72  Income Security Act of 1974; service benefit plan; managed care
   73  organization; liability insurance, including self-insurance; no
   74  fault insurance; workers’ compensation laws or plans; or other
   75  parties that are, by statute, contract, or agreement, legally
   76  responsible for payment of a claim for a health care item or
   77  service.
   78         Section 3. Subsection (4), paragraph (c) of subsection (6),
   79  paragraph (h) of subsection (11), subsection (16), paragraph (b)
   80  of subsection (17), and subsection (20) of section 409.910,
   81  Florida Statutes, are amended to read:
   82         409.910 Responsibility for payments on behalf of Medicaid
   83  eligible persons when other parties are liable.—
   84         (4) After the agency has provided medical assistance under
   85  the Medicaid program, it shall seek recovery of reimbursement
   86  from third-party benefits to the limit of legal liability and
   87  for the full amount of third-party benefits, but not in excess
   88  of the amount of medical assistance paid by Medicaid, as to:
   89         (a) Claims for which the agency has a waiver pursuant to
   90  federal law; or
   91         (b) Situations in which the agency learns of the existence
   92  of a liable third party or in which third-party benefits are
   93  discovered or become available after medical assistance has been
   94  provided by Medicaid.
   95         (6) When the agency provides, pays for, or becomes liable
   96  for medical care under the Medicaid program, it has the
   97  following rights, as to which the agency may assert independent
   98  principles of law, which shall nevertheless be construed
   99  together to provide the greatest recovery from third-party
  100  benefits:
  101         (c) The agency is entitled to, and has, an automatic lien
  102  for the full amount of medical assistance provided by Medicaid
  103  to or on behalf of the recipient for medical care furnished as a
  104  result of any covered injury or illness for which a third party
  105  is or may be liable, upon the collateral, as defined in s.
  106  409.901.
  107         1. The lien attaches automatically when a recipient first
  108  receives treatment for which the agency may be obligated to
  109  provide medical assistance under the Medicaid program. The lien
  110  is perfected automatically at the time of attachment.
  111         2. The agency is authorized to file a verified claim of
  112  lien. The claim of lien shall be signed by an authorized
  113  employee of the agency, and shall be verified as to the
  114  employee’s knowledge and belief. The claim of lien may be filed
  115  and recorded with the clerk of the circuit court in the
  116  recipient’s last known county of residence or in any county
  117  deemed appropriate by the agency. The claim of lien, to the
  118  extent known by the agency, shall contain:
  119         a. The name and last known address of the person to whom
  120  medical care was furnished.
  121         b. The date of injury.
  122         c. The period for which medical assistance was provided.
  123         d. The amount of medical assistance provided or paid, or
  124  for which Medicaid is otherwise liable.
  125         e. The names and addresses of all persons claimed by the
  126  recipient to be liable for the covered injuries or illness.
  127         3. The filing of the claim of lien pursuant to this section
  128  shall be notice thereof to all persons.
  129         4. If the claim of lien is filed within 3 years 1 year
  130  after the later of the date when the last item of medical care
  131  relative to a specific covered injury or illness was paid, or
  132  the date of discovery by the agency of the liability of any
  133  third party, or the date of discovery of a cause of action
  134  against a third party brought by a recipient or his or her legal
  135  representative, record notice shall relate back to the time of
  136  attachment of the lien.
  137         5. If the claim of lien is filed after 3 years 1 year after
  138  the later of the events specified in subparagraph 4., notice
  139  shall be effective as of the date of filing.
  140         6. Only one claim of lien need be filed to provide notice
  141  as set forth in this paragraph and shall provide sufficient
  142  notice as to any additional or after-paid amount of medical
  143  assistance provided by Medicaid for any specific covered injury
  144  or illness. The agency may, in its discretion, file additional,
  145  amended, or substitute claims of lien at any time after the
  146  initial filing, until the agency has been repaid the full amount
  147  of medical assistance provided by Medicaid or otherwise has
  148  released the liable parties and recipient.
  149         7. No release or satisfaction of any cause of action, suit,
  150  claim, counterclaim, demand, judgment, settlement, or settlement
  151  agreement shall be valid or effectual as against a lien created
  152  under this paragraph, unless the agency joins in the release or
  153  satisfaction or executes a release of the lien. An acceptance of
  154  a release or satisfaction of any cause of action, suit, claim,
  155  counterclaim, demand, or judgment and any settlement of any of
  156  the foregoing in the absence of a release or satisfaction of a
  157  lien created under this paragraph shall prima facie constitute
  158  an impairment of the lien, and the agency is entitled to recover
  159  damages on account of such impairment. In an action on account
  160  of impairment of a lien, the agency may recover from the person
  161  accepting the release or satisfaction or making the settlement
  162  the full amount of medical assistance provided by Medicaid.
  163  Nothing in this section shall be construed as creating a lien or
  164  other obligation on the part of an insurer which in good faith
  165  has paid a claim pursuant to its contract without knowledge or
  166  actual notice that the agency has provided medical assistance
  167  for the recipient related to a particular covered injury or
  168  illness. However, notice or knowledge that an insured is, or has
  169  been a Medicaid recipient within 1 year from the date of service
  170  for which a claim is being paid creates a duty to inquire on the
  171  part of the insurer as to any injury or illness for which the
  172  insurer intends or is otherwise required to pay benefits.
  173         8. The lack of a properly filed claim of lien shall not
  174  affect the agency’s assignment or subrogation rights provided in
  175  this subsection, nor shall it affect the existence of the lien,
  176  but only the effective date of notice as provided in
  177  subparagraph 5.
  178         9. The lien created by this paragraph is a first lien and
  179  superior to the liens and charges of any provider, and shall
  180  exist for a period of 7 years, if recorded, after the date of
  181  recording; and shall exist for a period of 7 years after the
  182  date of attachment, if not recorded. If recorded, the lien may
  183  be extended for one additional period of 7 years by rerecording
  184  the claim of lien within the 90-day period preceding the
  185  expiration of the lien.
  186         10. The clerk of the circuit court for each county in the
  187  state shall endorse on a claim of lien filed under this
  188  paragraph the date and hour of filing and shall record the claim
  189  of lien in the official records of the county as for other
  190  records received for filing. The clerk shall receive as his or
  191  her fee for filing and recording any claim of lien or release of
  192  lien under this paragraph the total sum of $2. Any fee required
  193  to be paid by the agency shall not be required to be paid in
  194  advance of filing and recording, but may be billed to the agency
  195  after filing and recording of the claim of lien or release of
  196  lien.
  197         11. After satisfaction of any lien recorded under this
  198  paragraph, the agency shall, within 60 days after satisfaction,
  199  either file with the appropriate clerk of the circuit court or
  200  mail to any appropriate party, or counsel representing such
  201  party, if represented, a satisfaction of lien in a form
  202  acceptable for filing in Florida.
  203         (11) The agency may, as a matter of right, in order to
  204  enforce its rights under this section, institute, intervene in,
  205  or join any legal or administrative proceeding in its own name
  206  in one or more of the following capacities: individually, as
  207  subrogee of the recipient, as assignee of the recipient, or as
  208  lienholder of the collateral.
  209         (h) Except as otherwise provided in this section, actions
  210  to enforce the rights of the agency under this section shall be
  211  commenced within 6 5 years after the date a cause of action
  212  accrues, with the period running from the later of the date of
  213  discovery by the agency of a case filed by a recipient or his or
  214  her legal representative, or of discovery of any judgment,
  215  award, or settlement contemplated in this section, or of
  216  discovery of facts giving rise to a cause of action under this
  217  section. Nothing in this paragraph affects or prevents a
  218  proceeding to enforce a lien during the existence of the lien as
  219  set forth in subparagraph (6)(c)9.
  220         (16) Any transfer or encumbrance of any right, title, or
  221  interest to which the agency has a right pursuant to this
  222  section, with the intent, likelihood, or practical effect of
  223  defeating, hindering, or reducing reimbursement to recovery by
  224  the agency for reimbursement of medical assistance provided by
  225  Medicaid, shall be deemed to be a fraudulent conveyance, and
  226  such transfer or encumbrance shall be void and of no effect
  227  against the claim of the agency, unless the transfer was for
  228  adequate consideration and the proceeds of the transfer are
  229  reimbursed in full to the agency, but not in excess of the
  230  amount of medical assistance provided by Medicaid.
  231         (17)
  232         (b) If federal law limits the agency to reimbursement from
  233  the recovered medical expense damages, a recipient, or his or
  234  her legal representative, may contest the amount designated as
  235  recovered medical expense damages payable to the agency pursuant
  236  to the formula specified in paragraph (11)(f) by filing a
  237  petition under chapter 120 within 21 days after the date of
  238  payment of funds to the agency or after the date of placing the
  239  full amount of the third-party benefits in the trust account for
  240  the benefit of the agency pursuant to paragraph (a). The
  241  petition shall be filed with the Division of Administrative
  242  Hearings. For purposes of chapter 120, the payment of funds to
  243  the agency or the placement of the full amount of the third
  244  party benefits in the trust account for the benefit of the
  245  agency constitutes final agency action and notice thereof. Final
  246  order authority for the proceedings specified in this subsection
  247  rests with the Division of Administrative Hearings. This
  248  procedure is the exclusive method for challenging the amount of
  249  third-party benefits payable to the agency. In order to
  250  successfully challenge the amount designated as recovered
  251  medical expenses payable to the agency, the recipient must
  252  prove, by clear and convincing evidence, that the a lesser
  253  portion of the total recovery that should be allocated as
  254  reimbursement for past and future medical expenses is less than
  255  the amount calculated by the agency pursuant to the formula set
  256  forth in paragraph (11)(f). Alternatively, the recipient must
  257  prove by clear and convincing evidence or that Medicaid provided
  258  a lesser amount of medical assistance than that asserted by the
  259  agency.
  260         (20)(a) Entities providing health insurance as defined in
  261  s. 624.603, health maintenance organizations and prepaid health
  262  clinics as defined in chapter 641, and, on behalf of their
  263  clients, third-party administrators, and pharmacy benefits
  264  managers, and any other third parties, as defined in s.
  265  409.901(27), which are legally responsible for payment of a
  266  claim for a health care item or service as a condition of doing
  267  business in the state or providing coverage to residents of this
  268  state, shall provide such records and information as are
  269  necessary to accomplish the purpose of this section, unless such
  270  requirement results in an unreasonable burden.
  271         (b)An entity must respond to a request for payment with
  272  payment on the claim, a written request for additional
  273  information with which to process the claim, or a written reason
  274  for denial of the claim within 90 working days after receipt of
  275  written proof of loss or claim for payment for a health care
  276  item or service provided to a Medicaid recipient who is covered
  277  by the entity. Failure to pay or deny a claim within 140 days
  278  after receipt of the claim creates an uncontestable obligation
  279  to pay the claim.
  280         (a)The director of the agency and the Director of the
  281  Office of Insurance Regulation of the Financial Services
  282  Commission shall enter into a cooperative agreement for
  283  requesting and obtaining information necessary to effect the
  284  purpose and objective of this section.
  285         1.The agency shall request only that information necessary
  286  to determine whether health insurance as defined pursuant to s.
  287  624.603, or those health services provided pursuant to chapter
  288  641, could be, should be, or have been claimed and paid with
  289  respect to items of medical care and services furnished to any
  290  person eligible for services under this section.
  291         2.All information obtained pursuant to subparagraph 1. is
  292  confidential and exempt from s. 119.07(1). The agency shall
  293  provide the information obtained pursuant to subparagraph 1. to
  294  the Department of Revenue for purposes of administering the
  295  state Title IV-D program. The agency and the Department of
  296  Revenue shall enter into a cooperative agreement for purposes of
  297  implementing this requirement.
  298         3.The cooperative agreement or rules adopted under this
  299  subsection may include financial arrangements to reimburse the
  300  reporting entities for reasonable costs or a portion thereof
  301  incurred in furnishing the requested information. Neither the
  302  cooperative agreement nor the rules shall require the automation
  303  of manual processes to provide the requested information.
  304         (b)The agency and the Financial Services Commission
  305  jointly shall adopt rules for the development and administration
  306  of the cooperative agreement. The rules shall include the
  307  following:
  308         1.A method for identifying those entities subject to
  309  furnishing information under the cooperative agreement.
  310         2.A method for furnishing requested information.
  311         3.Procedures for requesting exemption from the cooperative
  312  agreement based on an unreasonable burden to the reporting
  313  entity.
  314         Section 4. This act shall take effect July 1, 2017.