Bill Text: FL H0967 | 2011 | Regular Session | Comm Sub

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Bill Title: Personal Injury Protection Insurance

Spectrum: Slight Partisan Bill (Republican 6-2-1)

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H0967 Detail]

Download: Florida-2011-H0967-Comm_Sub.html

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CS/CS/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 the circuit court
4	has exclusive original jurisdiction in actions involving
5	challenges to arbitration decisions under the Florida
6	Motor Vehicle No-Fault Law; amending s. 627.4137, F.S.;
7	requiring requests made to a self-insured corporation for
8	disclosure of certain information to be by certified mail;
9	creating s. 627.7311, F.S.; providing for the effect of
10	specified statutory provisions, schedules, and procedures
11	on insurance policies; amending s. 627.736, F.S.;
12	requiring an insured seeking benefits to comply with
13	policy terms as a condition precedent to receiving
14	benefits; revising a reference to Medicare Part B payments
15	as the schedule for an insurer's discretionary use when
16	limiting reimbursement of certain medical services,
17	supplies, and care; specifying the Medicare fee schedule
18	or payment limitation that is to be used by an insurer to
19	limit reimbursements for certain medical services,
20	supplies, and care; requiring that an insurer under
21	certain circumstances notify a provider of an improperly
22	completed form and provide an opportunity to submit a
23	completed form within a specified time; requiring any
24	assignee of benefits or payments to cooperate under the
25	terms of the policy; requiring a provider who is assigned
26	the benefits of an insured to submit to examination under
27	oath under certain circumstances; requiring a provider to
28	produce certain knowledgeable individuals for examination
29	under oath under certain circumstances; requiring certain
30	records be provided by claimants for inspection if
31	requested by an insurer; authorizing methods for recording
32	examinations under oath; providing that certain actions by
33	an insurer constitute an unfair and deceptive trade
34	practice; subjecting insurers to penalties for an unfair
35	and deceptive trade practice; creating a presumption
36	relating to failing to appear for an examination;
37	specifying that submitting to an examination is a
38	condition precedent to receiving benefits; providing for
39	application relating to attorney's fees; limiting the
40	amount of recoverable attorney's fees; prohibiting the use
41	of a contingency risk multiplier when calculating
42	attorney's fees; authorizing binding arbitration as a
43	policy provision for dispute resolution; providing
44	requirements and procedures relating to arbitration;
45	providing for the recovery of specified attorney's fees
46	and the responsibility for payment of costs in
47	arbitration; providing for a judicial challenge of an
48	arbitration decision; providing for the scope of review
49	relating to such challenge; providing that s. 627.428,
50	F.S., relating to attorneys' fees, does not apply to a
51	challenge of an arbitration decision; prohibiting the
52	accrual of interest during litigation of such challenge
53	under certain circumstances; providing an effective date.
54
55	Be It Enacted by the Legislature of the State of Florida:
56
57	Section 1.  Subsection (2) of section 26.012, Florida
58	Statutes, is amended to read:
59	26.012  Jurisdiction of circuit court.-
60	(2)  The circuit court They shall have exclusive original
61	jurisdiction:
62	(a)  In all actions at law not cognizable by the county
63	courts.;
64	(b)  Of proceedings relating to the settlement of the
65	estates of decedents and minors, the granting of letters
66	testamentary, guardianship, involuntary hospitalization, the
67	determination of incompetency, and other jurisdiction usually
68	pertaining to courts of probate.;
69	(c)  In all cases in equity including all cases relating to
70	juveniles except traffic offenses as provided in chapters 316
71	and 985.;
72	(d)  Of all felonies and of all misdemeanors arising out of
73	the same circumstances as a felony which is also charged.;
74	(e)  In all cases involving legality of any tax assessment
75	or 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
78	real property.
79	(h)  In all actions involving the Florida Motor Vehicle No-
80	Fault Law, ss. 627.730-627.7405, where arbitration is initiated
81	pursuant to s. 627.736(19) and the arbitration decision is
82	challenged.
83	Section 2.  Subsection (3) is added to section 627.4137,
84	Florida Statutes, to read:
85	627.4137  Disclosure of certain information required.-
86	(3)  Any request made to a self-insured corporation
87	pursuant to this section shall be sent by certified mail to the
88	registered agent of the disclosing entity.
89	Section 3.  Section 627.7311, Florida Statutes, is created
90	to read:
91	627.7311  Effect of law on policies.-The provisions,
92	schedules, and procedures authorized in ss. 627.730-627.7405
93	shall be implemented by the insurers offering policies pursuant
94	to the Florida Motor Vehicle No-Fault Law. These provisions,
95	schedules, and procedures have full force and effect regardless
96	of their express inclusion in an insurance policy, and an
97	insurer is not required to amend its policy to implement and
98	apply such provisions, schedules, or procedures.
99	Section 4.  Paragraph (i) is added to subsection (4) of
100	section 627.736, Florida Statutes, paragraphs (a) and (d) of
101	subsection (5), paragraph (b) of subsection (6), paragraph (b)
102	of subsection (7), and subsection (8) of that section are
103	amended, and subsections (17), (18), and (19) are added to that
104	section, to read:
105	627.736  Required personal injury protection benefits;
106	exclusions; priority; claims.-
107	(4)  BENEFITS; WHEN DUE.-Benefits due from an insurer under
108	ss. 627.730-627.7405 shall be primary, except that benefits
109	received under any workers' compensation law shall be credited
110	against the benefits provided by subsection (1) and shall be due
111	and payable as loss accrues, upon receipt of reasonable proof of
112	such loss and the amount of expenses and loss incurred which are
113	covered by the policy issued under ss. 627.730-627.7405. When
114	the Agency for Health Care Administration provides, pays, or
115	becomes liable for medical assistance under the Medicaid program
116	related to injury, sickness, disease, or death arising out of
117	the ownership, maintenance, or use of a motor vehicle, benefits
118	under ss. 627.730-627.7405 shall be subject to the provisions of
119	the Medicaid program.
120	(i)  In all circumstances, an insured seeking benefits
121	under ss. 627.730-627.7405 must comply with the terms of the
122	policy, which includes, but is not limited to, submitting to
123	examinations under oath. Compliance with this paragraph is a
124	condition precedent to receiving benefits.
125	(5)  CHARGES FOR TREATMENT OF INJURED PERSONS.-
126	(a)1.  Any physician, hospital, clinic, or other person or
127	institution lawfully rendering treatment to an injured person
128	for a bodily injury covered by personal injury protection
129	insurance may charge the insurer and injured party only a
130	reasonable amount pursuant to this section for the services and
131	supplies rendered, and the insurer providing such coverage may
132	pay for such charges directly to such person or institution
133	lawfully rendering such treatment, if the insured receiving such
134	treatment or his or her guardian has countersigned the properly
135	completed invoice, bill, or claim form approved by the office
136	upon which such charges are to be paid for as having actually
137	been rendered, to the best knowledge of the insured or his or
138	her guardian. In no event, However, may such a charge may not
139	exceed be in excess of the amount the person or institution
140	customarily charges for like services or supplies. When
141	determining With respect to a determination of whether a charge
142	for a particular service, treatment, or otherwise is reasonable,
143	consideration may be given to evidence of usual and customary
144	charges and payments accepted by the provider involved in the
145	dispute, and reimbursement levels in the community and various
146	federal and state medical fee schedules applicable to automobile
147	and other insurance coverages, and other information relevant to
148	the reasonableness of the reimbursement for the service,
149	treatment, or supply.
150	1.2.  The insurer may limit reimbursement to 80 percent of
151	the following schedule of maximum charges:
152	a.  For emergency transport and treatment by providers
153	licensed under chapter 401, 200 percent of Medicare.
154	b.  For emergency services and care provided by a hospital
155	licensed under chapter 395, 75 percent of the hospital's usual
156	and customary charges.
157	c.  For emergency services and care as defined by s.
158	395.002(9) provided in a facility licensed under chapter 395
159	rendered by a physician or dentist, and related hospital
160	inpatient services rendered by a physician or dentist, the usual
161	and customary charges in the community.
162	d.  For hospital inpatient services, other than emergency
163	services and care, 200 percent of the Medicare Part A
164	prospective payment applicable to the specific hospital
165	providing the inpatient services.
166	e.  For hospital outpatient services, other than emergency
167	services and care, 200 percent of the Medicare Part A Ambulatory
168	Payment Classification for the specific hospital providing the
169	outpatient services.
170	f.  For all other medical services, supplies, and care, 200
171	percent of the allowable amount under the participating
172	physicians schedule of Medicare Part B. For all other supplies
173	and care, including durable medical equipment and care and
174	services rendered by ambulatory surgical centers and clinical
175	laboratories, 200 percent of the allowable amount under Medicare
176	Part B. However, if such services, supplies, or care is not
177	reimbursable under Medicare Part B, the insurer may limit
178	reimbursement to 80 percent of the maximum reimbursable
179	allowance under workers' compensation, as determined under s.
180	440.13 and rules adopted thereunder which are in effect at the
181	time such services, supplies, or care is provided. Services,
182	supplies, or care that is not reimbursable under Medicare or
183	workers' compensation is not required to be reimbursed by the
184	insurer.
185	2.3.  For purposes of subparagraph 1. 2., the applicable
186	fee schedule or payment limitation under Medicare is the fee
187	schedule or payment limitation in effect on January 1 of the
188	year in which at the time the services, supplies, or care was
189	rendered and for the area in which such services were rendered,
190	and shall apply throughout the remainder of the year,
191	notwithstanding any subsequent changes made to such fee schedule
192	or payment limitation, except that it may not be less than the
193	allowable amount under the participating physicians schedule of
194	Medicare Part B for 2007 for medical services, supplies, and
195	care subject to Medicare Part B.
196	3.4.  Subparagraph 1. 2. does not allow the insurer to
197	apply any limitation on the number of treatments or other
198	utilization limits that apply under Medicare or workers'
199	compensation. An insurer that applies the allowable payment
200	limitations of subparagraph 1. 2. must reimburse a provider who
201	lawfully provided care or treatment under the scope of his or
202	her license, regardless of whether such provider is would be
203	entitled to reimbursement under Medicare due to restrictions or
204	limitations on the types or discipline of health care providers
205	who may be reimbursed for particular procedures or procedure
206	codes.
207	4.5.  If an insurer limits payment as authorized by
208	subparagraph 1. 2., the person providing such services,
209	supplies, or care may not bill or attempt to collect from the
210	insured any amount in excess of such limits, except for amounts
211	that are not covered by the insured's personal injury protection
212	coverage due to the coinsurance amount or maximum policy limits.
213	(d)  All statements and bills for medical services rendered
214	by any physician, hospital, clinic, or other person or
215	institution shall be submitted to the insurer on a properly
216	completed Centers for Medicare and Medicaid Services (CMS) 1500
217	form, UB 92 forms, or any other standard form approved by the
218	office or adopted by the commission for purposes of this
219	paragraph. All billings for such services rendered by providers
220	shall, to the extent applicable, follow the Physicians' Current
221	Procedural Terminology (CPT) or Healthcare Correct Procedural
222	Coding System (HCPCS), or ICD-9 in effect for the year in which
223	services are rendered and comply with the Centers for Medicare
224	and Medicaid Services (CMS) 1500 form instructions and the
225	American Medical Association Current Procedural Terminology
226	(CPT) Editorial Panel and Healthcare Correct Procedural Coding
227	System (HCPCS). All providers other than hospitals shall include
228	on the applicable claim form the professional license number of
229	the provider in the line or space provided for "Signature of
230	Physician or Supplier, Including Degrees or Credentials." In
231	determining compliance with applicable CPT and HCPCS coding,
232	guidance shall be provided by the Physicians' Current Procedural
233	Terminology (CPT) or the Healthcare Correct Procedural Coding
234	System (HCPCS) in effect for the year in which services were
235	rendered, the Office of the Inspector General (OIG), Physicians
236	Compliance Guidelines, and other authoritative treatises
237	designated by rule by the Agency for Health Care Administration.
238	A No statement of medical services may not include charges for
239	medical services of a person or entity that performed such
240	services without possessing the valid licenses required to
241	perform such services. For purposes of paragraph (4)(b), an
242	insurer is shall not be considered to have been furnished with
243	notice of the amount of covered loss or medical bills due unless
244	the statements or bills comply with this paragraph, and unless
245	the statements or bills are properly completed in their entirety
246	as to all material provisions, with all relevant information
247	being provided therein. If an insurer denies a claim under this
248	section due to the failure of a provider to provide a properly
249	completed form required by this paragraph, the insurer shall
250	notify the provider as to the provisions that were improperly
251	completed and shall give the provider 15 days to submit a
252	completed form.
253	(6)  DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.-
254	(b)  Every physician, hospital, clinic, or other medical
255	institution providing, before or after bodily injury upon which
256	a claim for personal injury protection insurance benefits is
257	based, any products, services, or accommodations in relation to
258	that or any other injury, or in relation to a condition claimed
259	to be connected with that or any other injury, shall, if
260	requested to do so by the insurer against whom the claim has
261	been made, furnish forthwith a written report of the history,
262	condition, treatment, dates, and costs of such treatment of the
263	injured person and why the items identified by the insurer were
264	reasonable in amount and medically necessary, together with a
265	sworn statement that the treatment or services rendered were
266	reasonable and necessary with respect to the bodily injury
267	sustained and identifying which portion of the expenses for such
268	treatment or services was incurred as a result of such bodily
269	injury, and produce forthwith, and permit the inspection and
270	copying of, his or her or its records regarding such history,
271	condition, treatment, dates, and costs of treatment if; provided
272	that this does shall not limit the introduction of evidence at
273	trial. Such sworn statement must shall read as follows: "Under
274	penalty of perjury, I declare that I have read the foregoing,
275	and the facts alleged are true, to the best of my knowledge and
276	belief." A No cause of action for violation of the physician-
277	patient privilege or invasion of the right of privacy may not be
278	brought shall be permitted against any physician, hospital,
279	clinic, or other medical institution complying with the
280	provisions of this section. The person requesting such records
281	and such sworn statement shall pay all reasonable costs
282	connected therewith. If an insurer makes a written request for
283	documentation or information under this paragraph within 30 days
284	after having received notice of the amount of a covered loss
285	under paragraph (4)(a), the amount or the partial amount that
286	which is the subject of the insurer's inquiry is shall become
287	overdue if the insurer does not pay in accordance with paragraph
288	(4)(b) or within 10 days after the insurer's receipt of the
289	requested documentation or information, whichever occurs later.
290	For purposes of this paragraph, the term "receipt" includes, but
291	is not limited to, inspection and copying pursuant to this
292	paragraph. An Any insurer that requests documentation or
293	information pertaining to reasonableness of charges or medical
294	necessity under this paragraph without a reasonable basis for
295	such requests as a general business practice is engaging in an
296	unfair trade practice under the insurance code.
297	1.  If an insured seeking to recover benefits under ss.
298	627.730-627.7405 assigns the contractual right to those benefits
299	or the payment of those benefits to any person or entity, the
300	assignee shall comply with the terms of the policy. In all
301	circumstances, the assignee shall be obligated to cooperate
302	under the policy, which includes, but is not limited to,
303	participation in an examination under oath. For time spent in an
304	examination under oath, the assignee is entitled to reasonable
305	compensation from the insurer. Compliance with this paragraph is
306	a condition precedent to the recovery of benefits under ss.
307	627.730-627.7405. If an insurer requests an examination under
308	oath of a medical provider, the provider must produce those
309	individuals with the most knowledge of the issues identified by
310	the insurer in the request for examination under oath. All
311	claimants must produce and provide for inspection all documents
312	requested by the insurer that are reasonably obtainable by the
313	claimant. Examinations under oath may be recorded by audio,
314	video, court reporter, or any combination thereof.
315	2.  Prior to requesting that an assignee participate in an
316	examination under oath, the insurer must provide a written
317	request of the assignee for all information that the insurer
318	believes is necessary to the processing of the claim, including
319	the information contemplated in subparagraph 1. An assignee is
320	not relieved from the provisions of this subparagraph simply by
321	providing the information contemplated in subparagraph 1.
322	3.  Any insurer that, as a general practice, requests
323	examinations under oath without a reasonable basis is engaging
324	in an unfair and deceptive trade practice.
325	(7)  MENTAL AND PHYSICAL EXAMINATION OF INJURED PERSON;
326	REPORTS.-
327	(b)  If requested by the person examined, a party causing
328	an examination to be made shall deliver to him or her a copy of
329	every written report concerning the examination rendered by an
330	examining physician, at least one of which reports must set out
331	the examining physician's findings and conclusions in detail.
332	After such request and delivery, the party causing the
333	examination to be made is entitled, upon request, to receive
334	from the person examined every written report available to him
335	or her or his or her representative concerning any examination,
336	previously or thereafter made, of the same mental or physical
337	condition. By requesting and obtaining a report of the
338	examination so ordered, or by taking the deposition of the
339	examiner, the person examined waives any privilege he or she may
340	have, in relation to the claim for benefits, regarding the
341	testimony of every other person who has examined, or may
342	thereafter examine, him or her in respect to the same mental or
343	physical condition. If a person unreasonably refuses to submit
344	to an examination, the personal injury protection carrier is no
345	longer liable for subsequent personal injury protection benefits
346	incurred after the date of the requested examination. Failure to
347	appear for an examination raises a rebuttable presumption that
348	such failure was unreasonable. Submission to an examination is a
349	condition precedent to receiving benefits.
350	(8)  APPLICABILITY OF PROVISION REGULATING ATTORNEY'S
351	FEES.-With respect to any dispute under the provisions of ss.
352	627.730-627.7405 between the insured and the insurer, or between
353	an assignee of an insured's rights and the insurer, the
354	provisions of s. 627.428 shall apply, except as provided in
355	subsections (10) and (15) and except that any attorney's fees
356	recovered are limited to the lesser of $200 per billable hour
357	or:
358	(a)  For any disputed amount of less than $500, 15 times
359	any disputed amount recovered by the attorney under ss. 627.730-
360	627.7405, 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
363	under 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
366	under ss. 627.730-627.7405, limited to a total of $15,000.
367	(17)  CLASS ACTIONS.-Attorney's fees in a class action
368	under ss. 627.730-627.7405 are limited to the lesser of $50,000
369	or three times the total of any disputed amount recovered in the
370	class action proceeding.
371	(18)  ATTORNEY'S FEES.-Notwithstanding s. 627.428, the
372	attorney's fees recovered under ss. 627.730-627.7405 shall be
373	calculated without regard to any contingency risk multiplier.
374	(19)  ARBITRATION.-In order to provide for an expedited,
375	cost-effective, and fair resolution of disputes arising from
376	contracts for personal injury protection benefits, an insurer
377	may offer a policy that requires or allows the insurer or
378	claimant to demand arbitration of any claims dispute involving
379	personal injury protection benefits prior to filing a lawsuit
380	and in lieu of litigation. Arbitration is subject to the Florida
381	Arbitration Code, except as otherwise provided in this section.
382	In addition:
383	(a)  A demand for arbitration must be made in writing by
384	certified mail, and the arbitration must be held within 60 days
385	after the receipt of a request for arbitration. The 60-day
386	period may not be tolled for discovery of documents pursuant to
387	paragraph (d).
388	(b)  Arbitration shall take place in the county in which
389	the treatment was rendered. If treatment was rendered outside
390	the state, arbitration shall take place in the county in which
391	the insured resides unless the parties agree to another
392	location.
393	(c)  The arbitration shall be conducted by a single
394	arbitrator. The Department of Financial Services shall adopt by
395	rule procedures to implement this arbitration program including:
396	1.  Reasonable requirements for the processing and
397	scheduling 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
403	copying the medical and other records on which the claimant
404	intends to rely at arbitration, upon written request by the
405	insurer or his or her attorney, within 15 days after receipt of
406	such request.
407	2.  The insurer shall make available for inspection or
408	copying all documents, records, or information upon which it is
409	relying in adjusting or rejecting the claim, upon written
410	request by the claimant or his or her attorney, within 10 days
411	after receipt of such request.
412	3.  Discovery of insurer documents, records, or information
413	shall be limited to those relating to insurance coverage. The
414	insurer is not required to produce claims-privileged items,
415	underwriting files, or documents that it does not intend to rely
416	on at arbitration.
417	4.  There shall be no discovery relating to general claims-
418	handling practices.
419	(e)  The decision of the arbitrator shall be set forth in
420	writing and furnished to each party within 30 days after the
421	arbitration. The decision shall be binding on each party unless
422	challenged pursuant to paragraph (g). An arbitration award may
423	not exceed the applicable limits of coverage remaining on the
424	policy.
425	(f)  The claimant is entitled to reimbursement of
426	attorney's fees directly associated with the arbitration,
427	subject to subsection (8). The award of fees must be set forth
428	in the arbitration decision. The insurer is responsible for
429	payment of the arbitrator fees and expenses, court reporter
430	fees, and any facility fees associated with the arbitration
431	proceedings. All costs and other expenses incurred during the
432	preparation, discovery, and arbitration proceedings shall be
433	paid by the parties incurring the expenses.
434	(g)1.  A party may challenge the arbitration decision by
435	filing a complaint in circuit court within 20 days after the
436	receipt 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
439	amount in dispute may not accrue during the course of
440	litigation, if the insurer has tendered payment of the amount of
441	the 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.