Session Dispatch-Week 5

With five of Florida's nine-week legislative session concluded, there has been a lot of activity impacting all lines of insurance.  There was not a lot of movement on non-appropriations bills this week, as the focus was mainly devoted to the budget process, as both chambers passed their Appropriations bills in order to put them in a conference position. That being said, there are some bills being heard and passed out of the full House and Senate Chambers. Below is a summary of the most relevant bills for these lines of insurance. 
2018 NAIFA-Florida-Session Dispatch

By Timothy J. Meenan, NAIFA-Florida Lobbyist

Session Dispatch - Week 5

LIFE
 
  1. GENETIC INFORMATION AMENDED IN FIRST SENATE COMMITTEE - SB1106/HB855
 
SB1106 by Senator Bean, passed Banking and Insurance this week, its first of three committee stops. The bill prohibits life insurers, including life insurers providing disability insurance, and long-term care insurers from canceling, limiting, or denying coverage or establishing differentials in premium rates, based on genetic information, if there is no diagnosis of a condition related to the genetic information. The bill also prohibits such insurers from requiring or soliciting genetic information, using genetic test results, or considering a person's decisions or actions relating to genetic testing in any manner for any insurance purpose. Florida currently applies these prohibitions to health insurers.

The House companion, HB855 by Representative Brodeur has passed its two committee stops and is waiting to be heard on the floor next.

ACLI and FIC were able to amend the bill in the Senate Banking and Insurance Committee to clarify that the diagnosis of a disease may still be used for rating purposes. The House remains unwilling to amend its bill. SB1106 will be heard next in Senate Health Policy on February 13th.
 
2. PROTECTION FOR VULNERABLE INVESTORS CLEARS FIRST HOUSE & SENATE STOPS HB681/SB662

SB662 by Senator Stargel passed its first of three committees this week. Stargel referred to the bill as a work in progress, in response to concerns expressed by securities dealers. The House companion, HB681 by Representative Donalds unanimously passed its first of three committees last week. These bills allows a dealer, investment adviser, or an associated person to place a temporary hold on a transaction regarding the account of a specified adult (65 or older, or meets requirements) or an account for which a specified adult is a beneficiary or beneficial owner if the dealer, investment adviser, or associated person believes in good faith that exploitation of the specified adult has occurred. Annuity sales would be encompassed within the scope of this bill.
 
HEALTH
 
1. PBM REGULATION BILL GETS AN OVERHAUL WHILE MOVING IN HOUSE & SENATE  HB351/SB1494
 
SB1494 by Senator Montford passed its first of three committees this week. The bill was amended in committee on February 6 and requires that a contract between a PBM and a health plan include prohibitions on certain practices that limit patient access to pricing information. The bill also requires a contract to limit patient cost sharing for a drug to the lesser of the applicable cost sharing amount, the total submitted charges, or the retail price. The bill creates an affirmative duty for a pharmacist to communicate to a patient the availability of a lower cost alternative drug if one exists and whether the patient's cost sharing obligation exceeds the retail price of a drug in the absence of prescription drug coverage.
 
HB351 by Representative Santiago passed its second of three committees this week. A similar amendment is planned for the House bill in the Appropriations Committee.
 
 
2. RETROACTIVE DENIAL MOVING IN BOTH CHAMBERS AND HEADED TO SENATE FLOOR SB162/HB217
 
HB217 by Representative Hager passed its first of three committees last week, despite public testimony of how this law will only increase rates. The bill would prohibit a health insurer or HMO from retroactively denying a claim at any time because of insured ineligibility, if the insurer or HMO verified the insured's eligibility at the time of treatment and provided an authorization number. An amendment was adopted in the House committee that would exclude the State's Medicaid Managed Care plan, which could be viewed as a recognition by the legislature how the potential law change will result in increased costs to providers.
 
Currently, a health insurer or HMO may retroactively deny a claim because of an insured's ineligibility up to 1 year after the payment of the claim. Under existing law, the patient is responsible for those claims, which potentially exposes the physician to financial risk if the patient does not pay the claims.
 
The Senate version, SB162, by Steube, is on third reading in the Senate.

 
3. PROHIBITING MAIL-ORDER DRUG DISCOUNTS MOVING IN SENATE SB492/HB289
 
 
SB 492 by Garcia, passed it's second of three committees last week and prohibits an HMO or group health policy from requiring an insured to obtain a prescription drug, for a chronic illness, exclusively through mail, unless the drug is considered an "excluded" drug, a drug that the FDA decided cannot be provided by a retail pharmacy. The bill also allows the insured to obtain prescription drugs for the treatment of a "chronic illness" (a broad list of conditions) through a retail pharmacy that agrees to the same terms and conditions applicable to a mail order pharmacy and accepts payment or reimbursement from the insurer.
 
 
The House companion, HB 289 by Raschein, passed its first committee in week one and has yet to be placed on the agenda in its second stop the Insurance and Banking Subcommittee. The House bill defines "chronic illness" as HIV only.

 
4. HEALTH INSURER AUTHORIZATION PASSED BY THE SENATE SB98/HB199
 
SB98 by Steube, passed the full Senate last week. The bill revises provisions of the Insurance Code relating to prior authorization and step therapy or fail-first protocols. It requires a health insurer or a PBM to provide current prior authorization requirements, restrictions, and forms on a publicly accessible website and in written or electronic format upon request. If a health insurer or a PBM on behalf of a health insurer intends to amend or implement new prior authorization requirements or restrictions, the health insurer or PBM must:
  • Ensure that the new or amended requirements or restrictions are available on its website at least 60 days before the effective date of the changes.
  • Provide notice to policyholders and providers who are affected by the changes at least 60 days before the effective date. Notice may be delivered electronically or by other methods mutually agreed upon by the insured or provider.
The bill also requires a health insurer to grant a protocol exception request if:
  •  A preceding prescription drug or medical treatment is contraindicated or will likely cause an adverse reaction or physical or mental harm to the insured;
  • A preceding prescription drug is expected to be ineffective based on the medical history of the insured and the clinical evidence of the characteristics of the preceding prescription drug or medical treatment;
  • The insured previously received a preceding prescription drug or another prescription drug or medical treatment that is in the same pharmacologic class or that has the same mechanism of action as a preceding prescription drug, respectively, and the drug or treatment lacked efficacy or effectiveness or adversely affected the insured; or
  • A preceding prescription drug or medical treatment is not in the best interest of the insured because the insured's use of the drug or treatment is expected to: 
    • Cause a significant barrier to the insured's adherence to or compliance with the insured's plan of care;
    • Worsen the medical condition of the insured that exists simultaneously but independently with the condition under treatment; or
    • Decrease the ability of the insured to achieve or maintain his or her ability to perform daily activities.
HB199 by Harrison unanimously passed its second of three committees this week and will be up next in House HHS. The House bill was narrowed down to eliminate the Prior Authorization section of the bill, focusing on a Step Therapy process that permits an insured to demonstrate that they had tried and failed a drug previously.  
   
5. EYE DROP REFILLS BILLS LOOKING UNLIKELY TO MOVE SB924/HB537
 
SB924 by Senator Baxley would require that individual and group health insurance policies and HMO contracts which provide coverage for prescription eye drops to treat a chronic eye disease or condition, must provide coverage for prescription eye drop refills if certain criteria is met. However, the bill sponsor voluntarily postponed the bill, stating that it had come to his attention that health insurers are already voluntarily adhering to standards more generous than the bill would have required.
 
HB537, the House companion has not yet been scheduled for a Committee hearing. These bills are likely dead for session.
 
6. FLORIDA INSURANCE CODE EXEMPTION FOR NONPROFIT RELIGIOUS ORGANIZATIONS HEADED TO HOUSE AND SENATE FLOOR VOTES HB1021/SB660
 
SB660 by Senator Brandes has passed the Senate on 3rd reading on February 8. A health care sharing ministry is an alternative to health insurance through which people of similar beliefs assist each other in paying for health care. The bill conforms the statute that governs health care sharing ministries to model legislation of the American Legislative Exchange Council, federal law, and the common practices of these ministries.
 
The bill also requires a ministry to have an annual independent audit conducted according to generally accepted accounting principles and to provide monthly statements to participants of the total dollar amount of qualified needs shared in the previous month.
 
Because the Senate bill was ready ahead of House bill, and the bills are very similar, the Senate amended the House language on to SB660, which is on 3rd reading in the Senate.
 
HB1021 by Representative Altman also passed its third and final committee last week and is ready for a floor vote.
 
7. CONTROLLED SUBSTANCES SLOWS DOWN IN FINAL SENATE COMMITTEE HB21/SB8
 
SB8 by Senator Benaquisto was temporarily postponed again in its final committee this week, on a motion from the sponsor in a committee that she chairs. The most likely reason is to add some new language that requires further vetting. One of the potential new issues for SB8 may be mandatory e-Prescribing, which is being advocated for by Walgreens but opposed by the Florida Medical Association. This will likely only be a temporary delay for a bill that is a priority of the House, Senate and Governor. The bill is intended to address the growing opioid issue by limiting the prescription for a Schedule II opioid to a three-day supply, or a seven-day supply if deemed medically necessary. The bill also requires Department of Health (DOH) to adopt rules establishing guidelines for prescribing controlled substances. Additionally, the bill requires a health care practitioner to complete a board-approved 2-hour continuing education course on safely and effectively prescribing controlled substances, and to review a patient's PDMP history prior to prescribing a controlled substance. The bill also requires all pain management clinics to register with the DOH or claim an exemption from registration to obtain a certificate of exemption by January 1, 2019.
 
The major difference between the House and Senate bills is that SB8 contains a prohibition on Prior Authorization and Step Therapy for Medication Assisted Therapy ("MAT") but the House bill does not.
 
 
HB21 by Representative Boyd has passed the House and is ready to be taken up in the Senate. The Governor prefers the House bill.
 
 
8. DIRECT PRIMARY CARE AGREEMENTS STILL WAITING ON SENATE HB37/SB80
 
 
HB37 by Representative Burgess has passed the full House of Representatives. Direct primary care is a medical practice model that eliminates third party payers from the primary care provider-patient relationship. Through these agreements, a patient pays a monthly fee, typically between $25 and $100 per individual, to a primary care provider for defined primary care services.
 
 
This bill provides that direct primary care agreements and the act of entering into such an agreement are not insurance and not subject to regulation under the Florida Insurance Code. The bill eliminates any authority of OIR to regulate a direct primary care agreement and exempts a primary care provider from certification or licensing requirements under the Insurance code for marketing, selling or offering to sell an agreement.
 
The bill also places several requirements on a direct primary care agreement, a few of these include the agreement to:
  • Be in writing;
  • Be signed by the primary care provider and the patient;
  • Allow either party to terminate the agreement by written notice followed by, at least, a 30-day waiting period;
  • Allow immediate termination of the agreement for a violation of physician-patient relationship or a breach of the terms of the agreement.
The Senate companion, SB80 by Lee, unanimously passed its second of three committees in week three and is waiting to be heard next in Appropriations.

 
9. TELEHEALTH PUT ON HOLD IN WEEK 5 SB280/HB793
 
SB280 by Bean passed its second of four committees last week. The bill defines the term, "telehealth," as the mode of providing health care services and public health care services by a Florida licensed practitioner, within the scope of his or her practice, through synchronous and asynchronous information and telecommunication technologies where the practitioner is located at a site other than the site where the recipient, whether a patient or another licensed practitioner, is located. It establishes practice standards for telehealth services and addresses the prescribing of controlled substances, and the issuance of a physician's certification for prescribing medical marijuana. The bill would clear up the regulatory uncertainty of using telehealth technology.
 
 HB793 by Massullo is waiting to be heard in its first committee. These bills are not likely to pass.

 
10. CLASS III INSTITUTIONAL PHARMACIES  SB1128/HB675
 
SB1128 by Stargel, passed its second of three committees last week and creates a new type of institutional pharmacy, the CIass III institutional pharmacy.
 
The bill authorizes Class III institutional pharmacies to:
 
  • Dispense, distribute, compound, and fill prescriptions for medicinal drugs;
  • Prepare prepackaged drug products;
  • Conduct other pharmaceutical services for affiliated hospitals and entities under common control, each of which must be permitted to possess medicinal drugs; and
  • Provide medicinal drugs, drug products, and pharmaceutical services to an entity under common control that holds an active health care clinic establishment permit.
 
HB675 by Brodeur, passed its first committee in week two and is waiting to be placed on the agenda in House Appropriations.
 
11. PHYSICIAN FEE SHARING BILL TRANSFORMED INTO TASK FORCE IN HOUSE SB1862/HB425
 
SB 1862 by Broxson, passed its second of three committees this week and will be up next in the Senate Rules Committee. The bill provides two exceptions from the prohibition against physicians entering into fee-splitting arrangements or receiving any commission, bonus, kickback, or rebate for patients referred for health care goods and services.  The exceptions created by the bill:
  • Allow an allopathic and osteopathic physician to enter into an alternative payment arrangement that otherwise complies with state and federal law; and
  • If the compensation payments comply with federal law, allow a physician who is an employee of the entity compensating the physician to receive a share of:
    • Profits, collections, or revenues based on the professional services provided by the physician, or directly supervised by the physician, which are provided on behalf of the entity compensating the physician; or
    • Overall profit or revenue of the entity compensating the physician as long as the share is not determined in a manner that directly takes into account the volume or value of services ordered by the physician but not performed by the physician or under the supervision of the physician.
HB425 by Representative Plascencia was amended in its first of three committee stops and is now a Task Force, whose composition would include the Attorney General, Surgeon General and members appointed by the Department of Health, Legislature, hospitals, health insurers, practitioners, the Florida Bar, investors, medical device manufacturers, and IT specialists, among others.


12. IMMUNIZATION REGISTRY PASSES FINAL HOUSE COMMITEE HB1045/SB1680
 
HB 1045 by Pigman, passed its final committee last week and is waiting to be heard on the floor next. The bill requires physicians, physician assistants, and nurses who administer vaccines to children aged 18 or younger or to students, aged 19 to 23, at a Florida College or university health care facility to report the vaccination to the immunization registry. The bill also repeals the ability of a parent or guardian of a child to opt to exclude his or her child from participating in the SHOTS immunization registry.
 
SB1680 by Montford passed its first committee last week and is now waiting to be scheduled for its second of three committees.

 
13. SCOPE OF PRACTICE -- PHARMACISTS TO TEST FOR FLU/STREP HITS BUMP IN SENATE HB431/SB524
 
HB 431 by Representative Placenscia is in its last committee and would permit pharmacists to test and treat the flu and strep under certain conditions. To be eligible to provide this service a pharmacist must meet certain insurance and certification requirements.
 
SB524 by Senator Brandes was temporarily postponed by the Health Policy Committee this week. FMA testified against claiming that swabs are too imprecise when compared to a doctor's diagnosis.
  
   
14. NURSING SCOPE OF PRACTICE PASSES FINAL HOUSE COMMITTEE SB1594/HB1337
 
SB 1594 by Brandes passed its second of three committees last week in the Senate. The bill changes the title of "advanced registered nurse practitioner" (ARNP) to "advanced practice registered nurse" (APRN) throughout the Florida Statutes. Instead of being certified to practice in this state as currently required for ARNPs, the bill requires APRNs to be licensed. Also, the bill repeals the clinical nurse specialist (CNS) license and adds the CNS specialty certification into APRN licensure. All authorizations granted to APRNs will be applicable to a CNS.
 
HB1337 by Pigman passed its second and final committee this week. The House has passed similar bills in prior sessions but the Florida Medical Association has always managed to block the expansion of nursing practices in the Senate.

15. TELEPHARMACY ADVANCES IN SENATE SB848/HB679
 
SB848 by Grimsley passed its first of three committee stops this week. The bill creates a new pharmacy permit for remote dispensing site pharmacies (RDSP). In a RDSP a registered pharmacy technician may dispense medicinal drugs under the supervision of an offsite pharmacist. Requirements for RDSP permits include:
  • Ownership and video surveillance by a Florida licensed pharmacist.
  • a remote dispensing site pharmacy must be located in a rural area and may not be located within 10 miles of a community pharmacy, with exceptions
The bill restricts an RDSP from performing centralized prescription filling and a registered pharmacy technician working in an RDSP from performing sterile or complex nonsterile compounding; and from storing, holding, and dispensing schedule II narcotic controlled substances. The bill was amended to allow HMOs to include remote sites in their networks while counting toward adquacy requirements.
 
HB679 by Ponder has passed two of its three committees of reference and awaits its final committee. It passed its first two committees with an amendment that establishes that a pharmacy technician employed at a RDSP must have at least 2,080 hours of experience within the 2 years immediately preceding employment.
 
16. INSURANCE COVERAGE PARITY FOR MENTAL HEALTH/SUBSTANCE USE DISORDERS SB1422/HB955
 
SB1422 by Rouson passed its first of three committees this week and will provide the Office of Insurance Regulation with the authority to ensure that individual and group policies and contracts of health insurers and health maintenance organizations are complying with the provisions of the federal Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008. The bill requires health insurers and HMOs to submit an annual report to the OIR showing their compliance with the MHPAEA. Medicaid plans must report annually to the Agency for Health Care Administration. The OIR must report annually to the Legislature.
 
 HB955 by Shaw is still waiting to be seen in its first of three committees.
 
17. ENTERAL FORMULA MANDATE SB528
 
Senator Stargel, sponsor of SB528, which has not received a hearing and has no House companion, added an amendment to the main budget bill, SB2500, to require coverage in the state group plan for enteral formulas prescribed by a physician, up to a maximum coverage limit of $20,000 per person.

  
DENTAL

1. DENTAL THERAPY TRANSFORMED INTO STUDY IN HOUSE HB683/SB1498
 
HB 683 by Perez, passed its first of three committees. The bill was temporarily postponed in its second committee, Health Care Appropriations this week. The bill requires the Department of Health to conduct a comprehensive study on the affordability, access, and delivery of dental care in Florida and submit a report of its findings to the Governor, the President of the Senate, and the Speaker of the House of Representatives by December 31, 2018. The report must include policy proposals for improving affordability, access, and delivery of dental services, and address implementation burdens and the sustainability of such proposals.
 
SB 1498 by Brandes is waiting to be scheduled for its first committee. Opposed by the FDA, these bills are likely dead.
 
2. DENTAL STUDENT LOAN REPAYMENT PROGRAM STARTS MOVING HB369/SB764
 
HB369 by Representative Burton creates the Dental Student Loan Repayment Program (Program) for licensed dentists who practice in specific public health programs located in in dental Health Professional Shortage Areas (population to provider ratio is 5000:1). A typical dentist's debt post-graduation is between $250,000 and $500,000. Subject to the availability of funds, the Department of Health (DOH) may award up to $50,000 per year per eligible dentist in the Program for a minimum of one year and a maximum of five years. The bill has passed its first of three committees.
 
The companion bill, SB764 by Bean, passed has passed its second of three committees this week. The bill will next be heard in Senate Appropriations.
 

PROPERTY

1. ONEROUS SENATE AOB BILL PASSES SECOND COMMITTEE - SB62/SB1168/HB7015
 
An onerous version of AOB reform is on the move in the Senate, passing its second of three committees this week. SB1168, by Senator Steube, amends current law to provide that a misrepresentation, omission, concealment of fact, or incorrect statement on an insurance application may prevent recovery only if the misrepresentation, omission, concealment of fact, or incorrect statement directly relates to the cause of the claim. If the misrepresentation, omission, concealment of fact or incorrect statement directly relates to the cause of the claim, one of the following must apply:
  • The misrepresentation, omission, concealment, or statement is fraudulent or is material to the acceptance of the risk or to the hazard assumed by the insurer; or
  • If the true facts relative to the loss claimed had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have:
    • Issued the policy or contract;
    • Issued the policy or contract at a premium rate at least 20 percent higher than the rate actually charged;
    • Issued a policy or contract in as large an amount; or
    • Provided coverage with respect to the hazard resulting in the loss.
 
In addition, SB1168 also amends current law to prohibit an insurer from utilizing "managed repair" controls, such as requiring that a particular vendor make repairs to a dwelling insured on the basis of replacement costs. It also prohibits the insurer from even recommending or suggesting a particular vendor to make repairs to a dwelling insured on the basis of replacement costs.
 
The bill also requires the assignee to provide a copy of the assignment agreement to the insurer within the earlier of 7 days after execution of the agreement, or 48 hours after beginning nonemergency work if the insurer has a facsimile number and e-mail address on its website designated for the delivery of such documents. It allows the insurer to inspect the property at any time. If the insurer fails to attempt in good faith to inspect the property within 7 days after learning of the loss and promptly deliver to the assignee written notice of any perceived deficiency in the assignee's notice or the work being performed; however, the failure may be raised to estop the insurer from asserting that work done was not reasonably necessary or that the notice was insufficient.
We are working to stop this bill from advancing. Industry's preferred AOB bill is SB62 by Senator Hukill, which has not been scheduled for a committee hearing and is unlikely to advance given the composition of the Banking & Insurance Committee in the Senate.
 
Meanwhile, the Florida House of Representatives AOB reform HB 7015 by Representative Trumbull was sent to the Senate in the first week of the legislative session. While the House version is not a perfect solution, the bill makes significant changes to the way property repair vendors are restricted in their use of an "assignment of benefits" or "AOB."   The bill requires disclosures be provided to insureds before entering into an AOB. It also moves to a "loser pays" attorney fee system. The House legislation provides the insured with an opportunity to rescind the assignment within 7 days of entering into the contract with the vendor. Further, the bill increases consumer protections and required vendors to provide written estimates of the work to be completed and required the assignee to notify the insurer of the assignment within 3 days of it being executed.   While it would be better to eliminate attorneys' fees to repair vendors altogether, this bill is an improvement over the current system.
 
In the end, it is unlikely that the House and Senate versions of AOB will match up. But if the House bill moves toward the Senate version, it will be a weaker product and possibly even onerous.
 
2. AOB MANAGED REPAIR WITH RESTRICTIONS SB1140
 
SB1140 by Senator Garcia specifies requirements for an insurer offering residential coverage that places a restriction on the policyholder's choice of contractor necessary to repair damage covered by the policy. Those restrictions would require the use of a contractor with an active license, prohibiting the contractor from placing a lien on the covered property for the work performed, ensure that all necessary permits are obtained for the work being performed, and guarantee the quality of work performed by the contractor under the policy for 3 years after all work has been completed.
 
The bill has not been scheduled for a committee hearing and has no House companion.
 
3. INSURER REPORTING SB1668
 
SB 1668 by Senator Farmer requires insurers filing rates with OIR to provide specific information and projections relating to claim litigation in their filings. This information includes costs associated with litigating claims, denied or limited claims that were successfully defended by the insurer in court, denied or limited claims that reached settlement, denied or limited claims that were adjudicated in favor of the insured, plaintiff attorney fees paid in association with denied or limited claims, and defendant attorney fees paid in association with denied or limited claims.
 
The bill has not been scheduled for a committee hearing and has no House companion.
 
4. HURRICANE FLOOD INSURANCE DISCLOSURE NOTICE NO LONGER REQUIRES A SIGNATURE HB1011/SB1282
 
HB1011 by Representative Cruz was amended in its final House committee stop last week, removing the requirement for insurers to obtain the applicant's written acknowledgement for the absence of flood coverage. The amended bill passed unanimously in its final House committee. The bill requires Homeowner's property insurance policies to include the following statement in bold 18-point type:
 
"LAW AND ORDINANCE: LAW AND ORDINANCE COVERAGE IS AN IMPORTANT COVERAGE THAT YOU MAY WISH TO PURCHASE. PLEASE DISCUSS WITH YOUR INSURANCE AGENT."
"FLOOD INSURANCE: YOU MAY ALSO NEED TO CONSIDER THE PURCHASE OF FLOOD INSURANCE. YOUR HOMEOWNER'S INSURANCE POLICY DOES NOT INCLUDE COVERAGE FOR DAMAGE RESULTING FROM FLOOD EVEIN IF HURRICANE WINDS AND RAIN CAUSED THE FLOOD TO OCCUR. WITHOUT SEPARATE FLOOD INSURANCE COVERAGE, YOU MAY HAVE UNCOVERED LOSSES CAUSED BY FLOOD. PLEASE DISCUSS THE NEED TO PURCHASE SEPARATE FLOOD INSURANCE
 
The companion measure, SB1282, by Taddeo, passed its first committee with a committee substitute that also removes the requirement that the notice be signed by the applicant. The two bills are now very similar.
 
5. HOUSE HURRICANE CATASTROPHE FUND BILL STALLED IN HOUSE AND SENATE HB97/SB1454
 
The bill, HB97 by Santiago, has yet to be placed on the agenda for its second committee stop. The bill creates an additional coverage option within the Florida Hurricane Catastrophe Fund for property insurers, of 60 percent, adding to the current coverage options of 90, 75, or 45 percent. These percentage options are the amounts that the Florida Hurricane Catastrophe Fund will reimburse an insurer's losses that are caused by hurricanes. This additional coverage option will give insurers more flexibility in developing and funding their risk transfer programs.
 
The bill also revises the rapid cash build-up factor to fluctuate, up to a limit, based on the projected Fund balance. Additionally, the bill clarifies that emergency assessments be levied only to fund bonds.
 
Its companion, SB1454 by Brandes, is waiting on its first committee hearing.
 
6. CITIZENS IT SECURITY/ PUB. REC. AND MEETINGS GETS MOVING IN THE SENATE HB1127/SB1880
 
SB 1880 by Broxson, unanimously passed through its first committee of three committees ON January 30th. The bill is similar to HB 1127 by Representative Lee, which creates public record exemptions for Citizens Property Insurance Corporation (Citizens) that are similar to those currently in law for state agencies. The bill provides that records held by Citizens that identify detection, investigation, or response practices for suspected or confirmed IT security incidents, including suspected or confirmed breaches, are confidential and exempt from public record requirements. Also, portions of risk assessments, evaluations, audits, and other reports are exempt. SB1180 is on the agenda in the Government Oversight Committee on February 13th.
 
The House companion, HB 1127, has passed two of its three scheduled committees. The bill will up next in Government Accountability.
 
 
7. CITIZENS CLEARINGHOUSE/PUBLIC RECORDS EXEMPTION SB7012
 
SB7012, a Senate Banking and Insurance Committee Bill unanimously passed its second of three committees last week, and will be up next in the Rules Committee.
 
The bill reauthorizes the public records exemption for proprietary business information provided by insurers to the Citizens clearinghouse program. Such business information is shared with the clearinghouse to facilitate placing risks with private market insurers instead of Citizens when applicants or current Citizens policy holders seek new or renewal property insurance coverage. This public records exemption is set to be repealed on October 2, 2018. All public records exemptions in law undergo and Open Government Sunshine Review five years after they are enacted.
 
There is no house companion but this bill will likely be paired with the House Trade Secret public records bills, HB459 and HB461.
 
 
AUTO
 
1. AAA MEMBERSHIP BILL MOVING IN BOTH HOUSES SB756/HB533
 
SB756, sponsored by Senator Grimsley, passed it's second of three committees last week and will be up next in the Rules Committee.
 
Meanwhile, HB 533 by Representative Hager has passed all of its House committees and the House floor. The bill, advocated for by AAA, allows a property and casualty insurer to condition the sale of insurance on the purchase of motor vehicle services if such services are purchased from a membership organization that has maintained more than one million members in Florida continuously since January 1, 2018 and is affiliated with the insurer.
 
2. AOB GLASS REFORM YET TO BE HEARD IN HOUSE SB396/HB811
 
HB811 by Representative Plasencia has yet to be scheduled for a committee meeting in the House. This bill has three committees of reference. Meanwhile, SB 396 by Senator Hukill passed its second committee this week, but then was sent back to its first committee of reference due to an amendment that Banking & Insurance Committee Chair doesn't appear to approve of. The bill must now pass B&I before being presented in its final committee. The bill has been amended several times; the only remaining language provides that a motor vehicle repair shop may not provide an inducement in the form of a rebate, gift, gift card, coupon or any other thing of value in exchange for making an insurance claim for motor vehicle glass replacement or repair.
 
Due to the lack of a hearing in the House and no recent movement in the Senate, these bills are likely dead.
 
3. NAMED-DRIVER EXCLUSION VOTED DOWN IN SENATE SB518/HB329
                  
SB518 by Senator Bean was voted down in the Senate Banking and Insurance Committee last week. The bill would have authorized private passenger motor vehicle policyholders to exclude named members of their household who are of driving age, from all coverages under their policy. The intent of the bill was to provide policyholders who reside in the same household as high-risk individuals the opportunity to potential see a decrease in their rates if they exclude such drivers from all coverages. With the bill defeated in committee, this issue is effectively dead for this session.
 
HB 329 which had cleared all of its committees, was Temporarily Postponed on January 24th after the Senate voted its version down.
 
4. TEXTING WHILE DRIVING READY FOR HOUSE FLOOR SB90/HB33
 
HB33 by Representative Toledo has passed its final committee last week and will next be heard on the floor. The bill makes texting while driving, already a traffic infraction, and a primary offense.  Today, law enforcement is only able to issue a citation as a secondary offense, meaning they must pull you over for something else, like speeding, and only then may cite you for texting while driving.  A primary offense means that law enforcement officers that witness texting while driving may pull a driver over for that offense alone and issue a citation.  An amendment was adopted to restrict search and seizure of data on a cell phone unless permission is voluntarily given by the owner.
 
At its final committee this week a n amendment was adopted to match an amendment already approved last week on the Senate side that would require law enforcement officers record the race/ethnicity of the violator on the traffic stop report. The data would be sent annually to the Department of Highway Safety and Motor Vehicles, and then to the Governor and Legislature.
 
The Senate companion, SB90 by Senator Perry has passed three of its four committees and will be up next in Senate Appropriations.
 
5. MOTOR VEHICLE DEALERS STALLED SINCE WEEK THREE SB616/HB595
 
SB616 by Senator Passidomo has passed two of its three committee stops. The bill expands the definition of "motor vehicle dealer" to include any person who:
  • Leases three or more motor vehicles in any 12-month period;
  • Engages in possessing, storing, or displaying three or more motor vehicles for retail sale or lease in a 12-month period;
  • Advertises motor vehicles held in his or her inventory for retail sale or lease;
  • Compensates customers for vehicles at wholesale or retail (trade-ins);
  • Negotiates with customers regarding the terms of sale or lease for a motor vehicle;
  • Provides test drives of motor vehicles he or she is offering for retail sale or lease; or
  • Delivers or arranges for delivery a motor vehicle in conjunction with the retail sale or lease of a motor vehicle.
 
The bill also prohibits motor vehicle dealers from transferring a manufacturer's statement of origin for a motor vehicle to any person who intends to sell the vehicle in Florida, unless that person is a licensed motor vehicle dealer.
 
The definition of "motor vehicle broker" is also amended in the bill to clarify that brokers assist the general public in purchasing or leasing a motor vehicle from a dealer and clarifies that a licensed manufacturer, distributor, or importer is not a motor vehicle broker.
 
Earlier versions of the bill could have been interpreted to allow only motor vehicle dealers to sell extended service warranties, but we worked with the auto dealers to strike this provision from the bill.
 
The House companion measure, HB595 by Representative Rommel, has passed two of its three committees as well. The bill will be up next in the Government Accountability Committee. Neither bill has moved since week three, but each bill only has one committee stop remaining.
 
6. AUTONOMOUS VEHICLES REMAINS IN NEUTRAL WEEK 5 SB712/HB353
 
HB353 by Representative Brodeur and Fischer has passed two of its three committees and SB712 by Senator Brandes, has also passed two of its three committees. The bills revise various provisions of law relating to autonomous vehicles. The bill provides that a licensed human operator is not required to operate a fully autonomous vehicle and authorizes operation of a fully autonomous vehicle on Florida roads regardless of whether a human operator physically present in the vehicle.
 
Additionally, the bill authorizes certain television and pre-recorded video displays that are visible from the driver's seat while the vehicle is in motion and authorizes use of a wireless communications device for texting, emailing, or instant messaging, if the vehicle is an autonomous vehicle operating in autonomous mode.
 
Mandatory minimum PIP coverages were added to both bills in their last committee stops that would apply to self-driving vehicles used for personal or ride-share use. However, the minimum insurance levels in the PIP section of the bill are confusing and still need work.
 
7. AUTOCYCLES ADVANCES IN SENATE HB215/SB504

SB504 by Senator Perry passed its second of three committees this week. The bill is playing catch up to HB 215 by Representative Payne, which passed the House of Representatives by a vote of 105-1 in week three and has been sent over to the Senate. The bill creates a definition for autocycles as a three-wheeled motorcycle that has two wheels in the front and one wheel in the back; is equipped with a roll cage or roll hoops, a seat belt for each occupant, antilock brakes, a steering wheel, and seating that does not require the operator to straddle or sit astride it; and is manufactured in accordance with the applicable federal motorcycle safety standards provided in 49 C.F.R. part 571 by a manufacturer registered with the National Highway Traffic Safety Administration.
 
The bill also amends the definition of motorcycle to include an autocycle and exempts a vehicle from the definition of motorcycle in which the operator is enclosed by a cabin.
 
8. DRONE BILL ADVANCES IN SENATE SB624/HB471
 
SB624 by Senator Young, passed its second of three committees on February 6th and will be up next in the Senate Rules Committee. Meanwhile, The House companion, HB471 by Representative Yarborough has passed all three of its committee stops and will next be heard on the House floor. The bill amends the definition of "critical infrastructure facility" to include correctional and detention facilities as places an individual may not knowingly or willfully operate a drone. The bill also allows law enforcement to use drones to collect evidence at a crime scene or traffic crash scene.   Additionally, the bill allows local or state agencies the ability to use drones in the assessment of damage, flood state, wildfire, or land management.
 
9. PIP BILLS ON HOLD - SB150/HB19
 
On January 12, the full House of Representatives enacted legislation to eliminate PIP and replace it with mandatory bodily injury coverage. Representative Grall is the sponsor of HB 19. The new BI limits are $25,000 for death or injury to one person, and $50,000 for the death or injury to two or more people, and $10,000 in physical damage limits.   The bill eliminates PIP completely.  
 
SB 150 by Senator Lee was passed by the Senate Banking and Insurance Committee January 10. The bill also maintains $10,000 for physical damage, and "steps up" the requirements for mandatory BI as follows: $20,000/$40,000 beginning January 1, 2019 through December 31, 2020; $25,000/$50,000 beginning January 1, 2021 through December 31, 2022; and $30,000/$60,000 beginning January 2023 and thereafter. This bill replaces PIP with a mandatory medical payments coverage of $5000. This coverage pays 100 percent of claims up to the limit, covers hospital, transportation, physician, chiropractic and dental services.
 
Neither of these bills address Florida's runaway bad faith lawsuit crisis, which is causing insurer settlements to increase and raising rates on Florida drivers.
 
There has been no further movement on these bills since the first week of session.
 
   
 
GENERAL
 
1. $100 DOLLAR BILL KEEPS MOVING SB762/HB483
 
HB483 by Representative Yarborough, amending the insurance Unfair Trade Practices Act, passed its final committee stop last week and was scheduled to be heard next on the floor. The bill was temporarily postponed back in week four, but remains on track to pass the House. Meanwhile, SB 762 Sponsored by Senator Mayfield passed its second of three committee stops this week, with an amendment that removes the provisions allowing group life and health insurers to offer policyholders funeral planning services and grief counseling.
 
Current law allows an insurance agent to spend up to $25 to provide advertising or logo type items to their current or prospective customers. Agents are not allowed to take a client to lunch, take their client to a football game, or participate in other usual and customary business practices. The bill would allow agents to spend up to $100 on client entertainment or business-related costs without violating Florida Law. Expenditures include meals, tickets, insurance mitigation items like fire extinguishers or home fire inspections, etc.
 
An amendment was added to the bill in committee in both chambers to allow life insurers to offer complimentary grief counseling or funeral planning services, or discounts on funeral services, in conjunction with the sale of a group policy, without running afoul of the inducement provisions of 626.9541, F.S. An amendment has been filed in the House to remove this language at the bills' next stop due to opposition by Independent Funeral Homes.
 
2. INSURANCE OMNIBUS BILL PASSES FINAL HOUSE COMMITTEE (POLICY EXECUTION) - SB784/HB465
 
HB465 by Representative Santiago passed it final House committee this week, and is now on calendar. It makes a number of changes to Florida Insurance Statutes. The bill passed the Insurance and Banking Subcommittee with a strike all amendment that removes the problem language that held the bill up last weekend included language allowing an insurer to issue an insurance policy without being executed via original officer's signature and the policy remains valid despite not being executed.
 
The bill makes a number of other changes regarding insurance including:
  • Foreign Insurer Stock Valuation - provides that the stock of a subsidiary corporation or related entity of a foreign insurer is exempt from certain limitations on valuation and investment requirements for solvency evaluation purposes in certain circumstances.
  • Exemption to Adjuster Examination Requirement - provides an exemption to the all-lines adjuster licensing exam to individuals who receive a Claims Adjuster Certified Professional (CACP) designation from WebCE, Inc
  • Surplus Lines Export Eligibility - lowers, from $1,000,000 to $700,000, the threshold for exporting a homeowner's property insurance risk to a surplus lines insurer following a single coverage rejection.
  • Surplus Lines Insurer Eligibility - repeals a requirement that conflicts with federal law; however, it does not affect the current eligibility determination process implemented in the state.
  • Surplus Lines Tax - provides for a uniform surplus lines tax of 4.936 percent of gross premiums, regardless of where the risk is located, rather than the surplus lines tax rate of each state where the risk is located.
  • Personal Financial and Health Information Privacy - incorporates a recent amendment of the GrammLeach-Bliley Act for purposes of privacy standards applicable to certain notices required by rules adopted by the Department of Financial Services and the Financial Services Commission.
  • Notice of Policy Change - requires that a property and casualty insurer summarize policy changes on the required Notice of Change in Policy Terms that is issued at policy renewal, rather than merely issuing a notice (i.e., requires content more informative than merely the phrase "Notice of Change in Policy Terms").
  • Property Insurance Claim Mediation - provides that a third-party assignee may request mediation of property insurance claims; except, an insurer is not required to participate in mediations requested by the assignee.
  • Proof of Mailing - permits motor vehicle insurers to use the Intelligent Mail barcode, or similar method approved by the United States Postal Service, to document proof of mailing of certain required notices.
  • Transportation Network Company Related Automobile Liability Insurance Exclusions - allows private passenger motor vehicle insurers to generally exclude coverage of transportation network services provided by a named insured, rather than limiting the exclusion to specific motor vehicles. This language was stricken in the 2nd House committee stop.
  • Filing Exception for Specialty Insurers - authorizes specialty insurers to overcome a presumption of control regarding acquisition of stocks, interests, and assets of other companies in the same manner as insurers.
  • ORSA Protections Strengthened: Confidentiality of Documents Submitted to OIR - expands the confidentiality of documents submitted to the Office of Insurance Regulation (OIR) under Own-Risk and Solvency Assessment ("ORSA") requirements to make them inadmissible as evidence in any private civil action, regardless of from whom they were obtained, rather than only when they are obtained from OIR.
  • Reciprocal Insurer Reserve Requirements - revises unearned premium reserve requirements.
  • Electronic Delivery of Policies for HMOs and Warranty - authorizes motor vehicle service agreement companies and health maintenance organizations (HMO) to deliver agreements and HMO contracts, respectively, in the same manner as currently authorized for other types of insurers, including the posting of boilerplate contents on a website and requiring delivery within 60 days, rather than 45 days and 10 days, respectively.
 
The Senate companion, SB784 by Senator Brandes, passed its second of three committees this week, with an amendment that would let DFS exempt other approved courses from exam requirements. However, the Senate bill was re-referred to the Judiciary Committee, which could slow the bill down.
 
3. MEDIATION BILLS STALLED IN HOUSE & SENATE SB1034/HB1043

SB 1034 by Senator Steube and HB1043 by Representative Metz are both still Temporarily Postponed in their first committee stops. The bills reduce the settlement authority that an insurance carrier representative must have at a mediation conference and authorizes a circuit court to compel the attendance of interested nonparties at a mediation conference. With respect to the report that a mediator must provide the court at the conclusion of mediation, the bill restricts what a mediator may disclose in its report to the court if the parties reach no agreement, but the bill expands what may be in the report if the parties reach a partial agreement. To the extent that these issues are addressed differently in the Florida Rules of Civil Procedure, the Supreme Court may choose to conform the rules to the provisions of the bill. The bill was on the agenda in the Senate Judiciary Committee in weeks one through three but was temporarily postponed all three times to allow discussion between industry and the sponsors.
 
4.   PUBLIC RECORDS/TRADE SECRETS MOVING IN BOTH HOUSE & SENATE HB459/HB461
 
These linked bills, a House priority, recodify trade secret protections in the insurance code and other statute and consolidate the protection in one place. A linked public records protection bill (HB461) is traveling with the main bill (HB459). The bills have passed their first of two committees.
 
HB459: Provides that certain information related to agency contracts is not confidential or exempt from public records requirements; removes or revises numerous provisions relating to exemptions from public records requirements for trade secrets
 
Two amendments were adopted in the first committee:
(1) Any contract or agreement to which an agency or an entity subject to this chapter is a party, is a public record, with the exception that confidential or exempt information contained can be redacted prior to release of the contract or agreement if the specific statutory exemption is identified.
(2) Financial information related to any contract or agreement cannot be confidential. Examples include: the amount of money paid, any payment structure or plan, expenditures, incentives, bonuses, fees, and penalties.
 
HB459 (and HB461) is now on the Government Accountability Committee's agenda for Thursday, February 8th. Three more amendments were adopted in this committee dealing with aggregated data and supplemental reports and may still need clean up.
 
HB461: Provides exemption from public record requirements for trade secret held by agency; provides notice requirements; provides process for responding to public record requests; provides exception to exemption; and provides that agency employee is not liable for release of records in compliance with act. The bill has passed its first of two committees. The bill becomes effective on the same date that HB 459 or similar legislation takes effect.
 
An amendment was adopted in the first committee providing that a person who submits records (that contains trade secrets) to an agency must claim they contain trade secrets, the person must submit a notice of trade secret to the agency. Failure to submit such notice constitutes a waiver of any claim by such person that the record contains a trade secret. The notice must provide the name, telephone number, and mailing address of the person claiming the record contains a trade secret. Such person is responsible for updating his or her contact information with the agency. Each page with a trade secret must be clearly marked with "Trade Secret." If other parties want to view pages with trade secret information, the agency must notify the submitter, then the submitter must file a notice with the circuit court within 30 days seeking a declaratory judgment.
The companion bills, SB956 and 958 by Senator Mayfield, are similar but not identical, and have not been heard in committee yet.
 
5. PROHIBITION AGAINST CONTRACTING WITH SCRUTINIZED COMPANIES CLEARS THE HOUSE HB545/SB780
 
HB545 by Representatives Fine and Moskowitz passed on the Full House this week by a vote of 109-3. The bill amends the provision prohibiting agencies and local governments from contracting with companies on the Israel List or that boycott Israel to apply the prohibition to contracts for goods or services of any amount, rather than only contracts of $1 million or more.
 
SB780, the Senate companion by Brandes, has passed its first or three committees and is now in the Appropriations Subcommittee on General Government.
 
6. DEPARTMENT OF FINANCIAL SERVICES AGENCY MOVING IN BOTH CHAMBERS SB1292/HB1073
 
The DFS Agency bills, SB1292 by Senator Stargel and HB1073 by Hager, both passed their second committee stops this week.
 
The bill includes changes to:
  • "Exchange of Business" law, reducing from 24 to four the number of times per calendar year than an agent is permitted to place policies with an insurer without being appointed by that insurer. SB 1292 by Stargel and HB 1073 by Hager, are designed to reduce any gamesmanship by various property insurers that are gaming the system to save funds by avoiding agent appointments.
  • Electronic images (of warrants, vouchers, or checks) will be deemed as original records.
  • Preneed Trust Fund: opposition has surfaced from the Independent Funeral Directors to a provision in the bill which allows monies from the Consumer Protection Trust Fund, which is funded by fees paid by funeral homes to cover Preneed obligations, to be used to upgrade IT equipment.
  • Adjusters: independent adjusters completing an online course would be exempt from the exam.
  • Managing General Agent changes: the MGA license category would be eliminated but there are other ways to come into compliance. Most states do not have an MGA license category; further, DFS asserts that reciprocal privileges with other states will not be impacted. Thus, these changes are not considered to be substantive.
 
HB1073 passed with a CS that (1) removes a section allowing the Department of Financial Services to transfer $2 million and interest from the Preneed Funeral Contract Consumer Protection Trust Fund to the Regulatory Trust Fund, and (2) modifies a youth curriculum transition plan to include financial literacy information that will be offered by DFS. The bills now require a $1 million appropriation, subject to the budget conference process.
 
7. SENATE WAITING ON HOUSE FOR HIGH SCHOOL FINANCIAL LITERACY HB323/SB88
 
HB323 by Representative Fitzenhagen unanimously passed its first of two committee stops in week three. Meanwhile, SB 88 by Senator Hukill was already unanimously enacted by the Senate and would make Florida the 6th state to require a stand-alone course in financial literacy. The bill would require, beginning with the fall 2018 semester, all high school students to complete a one-half credit stand-alone elective in financial literacy, which equates to one hour a day for one semester. The course would cover instruction in opening and managing a bank account, assessing a depository institutions services, balancing a checkbook, basic principles of money management, credit scores, managing debt including credit card debt, completing a loan application, implications of receiving an inheritance, basic principles of insurance policies, computing federal income taxes, local tax assessments, computing interest rates, simple contracts, contesting incorrect billing statements, types of savings and investments, state and federal laws concerning finance.
 
8. DUTIES OF CHIEF FINANCIAL OFFICER MOVES IN HOUSE & SENATE SB792/HB1421
 
SB792 by Senator Lee unanimously passed its second of four committees this week. The bill is a joint resolution to amend the state constitution that would provide, if approved by the voters, additional duties of the state's Chief Financial Officer. Specifically, the resolution would require that the Chief Financial Officer serve as a principal in consensus economic, demographic, and revenue estimating conferences. The resolution provides the Chief Financial Officer the authority to review and certify state contracts in excess of ten million dollars. That threshold is subject to review every four years to account for inflation or deflation.
 
If passed by a three-fifths vote of each house of the Legislature, the proposal will be voted on at the general election in November 2018; sixty percent of those voting on the measure is required for approval.
 
HB1421 by Stevenson passed its first of three committees this week and will likely be up next in the House Appropriations Committee.
 
9. SB1256/HB1249 SEARCHING OF CONTENT IN COMMUNICATION TECHNOLOGY
 
SB1256 by Brandes passed its first of three committees this week. The bill amends Florida law to address privacy issues related to the use of communication technology. It provides that a court may issue a warrant based upon probable cause for a law enforcement officer to intercept/obtain a wire communication, oral communication, electronic communication, cellular-site location data, precise global positioning satellite location data, or historical global positioning satellite data. It also allows for emergency location tracking; location tracking must have time constraints and a notice must be provided to the person being tracked.
 
HB1249 by Grant passed its first of three committees in week three and waits to be heard in House Justice Appropriations Subcommittee next. The CS retained the requirement in current law that the prosecution must disclose the application and order authorizing interception of communications at least 10 days before introducing the intercepted communications into evidence. The bill as originally filed had eliminated the 10 day component of this requirement.

 
WORKERS COMPENSATION
 

1. BENEFITS FOR FIREFIGHTERS DIAGNOSED WITH CANCER SB900/HB695

 
SB900 by Flores (originally filed by Sen. Jack Latvala) unanimously passed its first of four committees last week and would require employers of full time firefighters to offer cancer insurance coverage to its firefighter employees. These agencies would be allowed to provide coverage through purchased insurance coverages or through a self-insured program.
 
The bill also provides that upon a diagnosis of cancer, a firefighter is entitled to certain benefits if the firefighter:
  • Has been employed for five consecutive years;
  • Has not used tobacco products for at least the preceding five years;
  • Has not been employed in any other position in the preceding years which is proven to create a higher risk for cancer.
 
If these conditions are met, the benefits are cancer treatment at no cost to the firefighter and a one-time cash payout of $25,000. The bill will be heard again in Health Policy on February 13th.
 
The House companion, HB 695 by Rep. Chris Latvala was workshopped by its first committee last week, House Oversight, Transparency & Administration Subcommittee, but not voted on. The bill will still need to pass all three committees that it has been reference to, so is likely dead for this year.
 

2. PTSD BENEFITS FOR FIRST RESPONDERS HB227/SB376

 
HB227 by Rep. Wilhite passed the first of its three committees last week. The bill revises workers' compensation standards to provide indemnity benefits for a mental or nervous injury of a law enforcement officer, a firefighter, an emergency medical technician, or a paramedic, whether or not such injury is accompanied by a physical injury requiring medical treatment, if certain requirements are met.
 
The Senate companion, SB376 by Senator Book has passed two of its four committees and is waiting to be heard next in Senate Appropriations.
 
 

3. COVERAGE OF CLAIMS FOR UNDOCUMENTED IMMIGRANTS SB1568

 
SB1568 by Senator Farmer aims to fix what some believe is contradictory language in the Workers Compensation and employment statutes, sometimes resulting in the deportation of undocumented workers who have made workers comp claims.
 
This bill has not been heard and has no House companion.