Senate & House Committees Passed the Following Bills of Interest:
HHS1 Health Care Civil Liability by Health & Human Services Committee
PCB HHS 21-01 provides heightened liability protections to health care entities for negligence claims by patients and residents arising under existing laws governing medical malpractice and long-term care facility litigation related to:
- Injury due to delay or omission in scheduling surgery or an act or omission in providing care for a medical condition due to a lack of resources caused by COVID-19;
- Novel or experimental COVID-19 treatment given to a COVID-19 patient; or
- Treatment of a COVID-19 patient whose injuries were related to an exacerbation of pre-existing conditions by COVID-19.
A plaintiff must prove by a preponderance of the evidence that a defendant was grossly negligent, reckless or committed intentional misconduct to recover under these COVID-19-related medical claims, thus immunizing providers from acts that constitute mere negligence. The proposed bill provides an affirmative defense for defendants who complied with applicable government-issued COVID-19 guidance.
The proposed bill also provides heightened liability protections for negligence claims against a health care provider that do not fall under existing medical malpractice and long-term care facility litigation statutes related to contracting COVID-19, applicable claims by individuals other than patients and residents ( i.e., visitors). A health care provider that made a good faith effort to substantially comply with applicable COVID-19 guidance is immune from these negligence claims. Additionally, in order to recover under these claims a plaintiff must:
- Plead his or her complaint with particularity.
- Submit, at the time of filing suit, a physician's affidavit confirming the physician's belief that the plaintiff contracting COVID-19 was due to the defendant's conduct.
- Prove, by clear and convincing evidence, that the defendant was at least grossly negligent.
The proposed bill has a severability clause and sunsets one year and one day after become law unless reenacted by the Legislature.
SB 0054 Motor Vehicle Insurance by Burgess
CS/CS/SB 54 repeals the Florida Motor Vehicle No-Fault Law (No-Fault Law), which requires every owner and registrant of a motor vehicle in this state to maintain Personal Injury Protection (PIP) coverage. Beginning January 1, 2022, the bill enacts financial responsibility requirements for liability for motor vehicle ownership or operation, as follows:
- For bodily injury (BI) or death of one person in any one crash, $25,000, and, subject to that limit for one person, $50,000 for BI or death of two or more people in any one crash.
- The bill sets a lower financial responsibility requirement of $15,000 for BI or death of one person, and $30,000 for BI or death of two or more persons, for persons having a household income of 200 percent or less of the federal poverty guidelines and for full time students attending a secondary or post-secondary school.
- The existing $10,000 financial responsibility requirement for property damage (PD) is retained.
The bill requires insurers to offer medical payments coverage (MedPay) with limits of $5,000 or $10,000 to cover medical expenses of the insured. Insurers may also offer other policy limits that exceed $5,000. Insurers must offer a zero deductible option for MedPay, and may also offer deductibles of up to $500. Insurers must reserve $5,000 of MedPay benefits for 30 days to pay physicians or dentists who provide emergency services and care or who provide hospital inpatient care.
The repeal of the No-Fault Law eliminates the limitations on recovering pain and suffering damages from PIP insureds, which currently require bodily injury that causes death or significant and permanent injury. Under the bill, the legal liability of an uninsured motorist insurer includes damages in tort for pain, suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, and the loss of past and future capacity for the enjoyment of life.
The bill creates a new framework to govern all third-party claims against motor vehicle insurers for bad faith failure to settle. The bill requires the third-party claimant in a bad faith failure to settle action to show the insurer violated its duty of good faith to the insured and in bad faith failed to settle the claim. The bill requires motor vehicle insurers to follow claims handling best practices standards based on long-established good faith duties related to claim handling, claim investigation, defense of the insured, and settlement negotiations.
The bill establishes that it is a condition precedent to bringing a third-party action for bad faith failure to settle that the claimant serve a detailed demand for settlement within the insured’s policy limits. The third-party bad faith claimant may condition the demand for settlement on taking a 2 hour examination under oath (EUO) of the insured, limited to discovering possible sources of recovery. The claimant may withdraw the demand for settlement after the EUO. If the insured refuses to submit to the EUO, the insurer may tender policy limits without obtaining a release of the insured, and if the insurer does so, it no longer has a duty to defend the insured, and may not be held liable if there is an excess judgment against the insured. The bill provides a safe harbor to the insurer in a third-party bad faith failure to settle action providing that an insurer is not liable for bad faith if it tenders (offers to pay) policy limits in exchange for a release of its insured from further liability within 60 days after receiving a demand for settlement from a single claimant. Where there are multiple claimants, the insurer is not liable for bad faith if it initiates an interpleader action within 60 days after receiving the competing demands.
The bill requires the trier of fact, when determining if an insurer in bad faith failed to settle, to consider certain actions of the insurer such as compliance with best practices along with certain actions of the insured and claimant. The bill also prohibits punitive damages in a third-party bad faith failure to settle action.
The bill provides that if a motor vehicle insurer fails to timely provide information related to liability insurance coverage as required by s. 627.4137, F.S., the claimant may file an action to enforce the section, and is entitled to an award of reasonable attorney fees and costs to be paid by the insurer.
The bill authorizes the exclusion of a specifically named individual from specified insurance coverages under a private passenger motor vehicle policy, with the written consent of the policyholder.
The bill allows an insurer that offers comprehensive coverage to offer a separate windshield deductible of up to $200, provided the insured is given an actuarially sound discount for electing the deductible and provided that a no deductible option is offered. The bill also prohibits auto repair shops from coercing consumers, paying referral fees, or giving rebates or gifts related to a windshield claim.
The Florida Office of Insurance Regulation estimates that implementation of this bill requires salaries and benefits at a recurring cost of $228,602 annually, commencing in FY 2021-22.
SB 0700 Telehealth by Rodriguez (A)
- Authorizes the Agency for Health Care Administration (AHCA), subject to limitations in the General Appropriations Act, to reimburse for telehealth services involving store-and-forward technology and remote patient monitoring services under the Medicaid program.
- Expands the definition of “telehealth” in s. 456.47, F.S., to include:
- A telehealth provider’s supervision of health care services through the use of synchronous and asynchronous telecommunications technology.
- Telephone calls, emails, fax transmissions, and other nonpublic-facing telecommunications.
- Authorizes a nonphysician health care practitioner who is required to maintain a formal supervisory relationship with a physician, including a physician who is registered as an out- of-state telehealth provider, to satisfy that requirement through telehealth.
- Authorizes a telehealth provider, practicing in a manner consistent with his or her scope of practice, to prescribe Schedule III, IV, and V controlled substances through telehealth.
- Prohibits the prescription of Schedule I and II controlled substances through telehealth.
- Creates a new type of pharmacy establishment, a “remote-site pharmacy,” where medicinal drugs are compounded or dispensed by a registered pharmacy technician (RPT) who is remotely supervised by an off-site pharmacist acting in the capacity of prescription department manager.
- Authorizes an off-site pharmacist to remotely supervise an RPT at a remote-site pharmacy and authorizes an RPT operating under such remote supervision to compound and dispense drugs.
- Provides for permitting and regulation of remote-site pharmacies by the Department of Health (DOH).
- Provides requirements for remote-site pharmacies.
- Prohibits a remote-site pharmacy from performing centralized prescription filling.
- Authorizes a pharmacist to serve as prescription department manager for up to three remote-site pharmacies that are under common control of the same supervising pharmacies and requiring him or her to visit the remote site on a schedule as determined by the Board of Pharmacy (BOP).
- Authorizes a pharmacist, at the direction of a physician, to administer certain extended- release medications.
- Creates exceptions to certain requirements that audiologists and hearing aid specialists must perform under current law when they are fitting and selling hearing aids to persons who are 18 years of age or older and who provide a medical clearance or a waiver.
- Makes it lawful for hearing aids to be sold or distributed through the mail to an ultimate consumer who is 18 years of age or older.
SB 768 expands the scope of authority for certified pharmacists and pharmacy interns to administer vaccines within the framework of an established protocol with a supervising physician.
Under the bill, pharmacists and pharmacy interns are authorized to administer vaccines to persons six years of age or older, as opposed to current law which limits such administration to adults. To administer vaccines to children, the bill requires the pharmacist or intern to obtain a medical consent form for minors, with a notice that the parent or guardian may opt-out from the child’s information being reported to the statewide immunization registry. The bill requires pharmacists and pharmacy interns to either report the child’s vaccination data to the registry or send a completed opt-out form.
The bill authorizes pharmacists and pharmacy interns to administer to persons six years of age or older, under the protocol, any immunization or vaccine that is:
- Listed in the federal Centers for Disease Control and Prevention’s (CDC) Adult Immunization Schedule, for adult patients;
- Listed in the CDC’s Child and Adolescent Schedule, for patients who are children;
- Recommended by the CDC for international travel; or
- Approved by the Board of Pharmacy (BOP) in response to a state of emergency declared by the Governor.
Other Bills that Passed
HB 0007 Civil Liability for Damages Relating to COVID-19 by McClure
SB 0048 Educational Scholarship Programs by Diaz
SB 0058 Hospitals’ Community Benefit Reporting by Rodriguez (A)
SB 0072. Civil Liability for Damages Relating to COVID-19 by Brandes
HB 0133. Surrendered Newborn Infants by Harding
SB 0280. Cardiopulmonary Resuscitation Training in Public Schools by Baxley
SB 0362. Pediatric Cardiac Care by Harrell
HB 0371. False Reports of Crimes by Brannan III
SB 0380. Child Restraint Requirements by Perry
SB 0388. Injured Police Canines by Wright
SB 0530. Nonopioid Alternatives by Perry
SB 0538. Use of Epinephrine Auto-injectors on Public K-20 Campuses by Polsky
SB 0590. Involuntary Examinations of Minors by Harrell
SB 0614. Assault or Battery on Hospital Personnel by Rodriguez (A)
SB 0686. Offers of Judgment by Brandes
SB 0780. Health Care Licensure Requirements by Gainer
SB 0828. Mental Health and Substance Abuse by Book
SB 7032. OGSR/Prescription Drug Purchase Lists by Regulated Industries