By Timothy J. Meenan, NAIFA-Florida Lobbyist
Session Dispatch - Week 3
1. GENETIC INFORMATION USED FOR INSURANCE CLEARS FINAL HOUSE COMMITTEE - SB1106/HB855
HB855 by Representative Brodeur was unanimously passed out of the Health and Human Services Committee, its final committee stop, and is on the House calendar eligible to be heard on the floor. Current Florida law prohibits health insurers from considering genetic information when issuing insurance policies and when setting applicable premium rates. The bill expands these existing prohibitions to include life insurance policies, long-term care insurance, and disability income insurance and would prevent these policy types from canceling, limiting, or denying coverage or setting differential premium rates based on personal genetic information that is derived from genetic testing. The definition of genetic testing in current law excludes routine physical examinations or chemical, blood, or urine analysis, unless conducted purposefully to obtain genetic information, and also excludes questions regarding family history. The bill does not modify this definition.
ACLI and FIC engaged Rep. Brodeur early on these bills and discussed possible amendments with him based on Vermont and Massachusetts statutes. Because a compromise seemed likely, the trades did not challenge the bill when it was heard in the first committee. Unexpectedly, Rep. Brodeur informed the trades that there would be no amendment and the bill was placed on the agenda of the second and last committee. The committee spent approximately 40 minutes on testimony, debate and questions and many gray areas were raised about situations where the results of a genetic test are also a diagnosis, such as with Parkinson's disease. HB855 is now on the floor, and could be on the agenda as early as next week.
The companion measure,
SB1106 by Senator Bean, has not been scheduled for a committee hearing.
1. EYE DROP REFILLS TEMPORARILY POSTPONED SB924/HB537
SB924 By Senator Baxley, was scheduled for its first committee hearing this week and was Temporarily Postponed. The bill 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.
2. FLORIDA INSURANCE CODE EXEMPTION FOR NONPROFIT RELIGIOUS ORGANIZATIONS CLEARS FINAL SENATE COMMITTEE HB1021/SB660
SB660 by Senator Brandes unanimously passed its third and final committee this week and will be headed to the floor. 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.
HB1021 by Representative Altman unanimously passed its second of three committees this week.
3. RETROACTIVE DENIAL CONTINUES MOVING IN SENATE SB162/HB217
SB162, by Steube, passed its second of three committee stops this week. The bill prohibits health insurers and health maintenance organizations (HMOs) from denying a claim at any time if the insurer or HMO verified the eligibility of an insured or subscriber at the time of treatment and provided an authorization number. The bill applies to new or renewed policies or contracts on January 1, 2019. Medicaid managed care plans are exempt from the provisions of the bill.
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.
HB217 by Representative Hager is on the January 30 Health Innovation Committee agenda.
4. CONTROLLED SUBSTANCES MOVES IN BOTH HOUSE & SENATE HB21/SB8
SB8 by Senator Benaquisto and HB21 by Representative Boyd both unanimously passed their second of three committees this week. The bills are 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.
5. DIRECT PRIMARY CARE AGREEMENTS PASSES THE HOUSE HB37/SB80
HB37 by Representative Burgess passed the full House of Representatives this week. 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 and will be up next in Appropriations.
1. HOUSE CONTINUES TO WAIT ON SENATE FOR AOB REFORM - SB62/SB1168/HB7015
An onerous version of AOB reform is on the move in the Senate. SB1168, by Senator Steube, passed its first committee of three committees this week. The bill amends current statutes to provide that attorney fees may not be included in the insurer's rate base and may not be used to justify a rate or rate change. SB1168 also 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, the failure may be raised to estop the insurer from asserting that work done was not reasonably necessary or that the notice was insufficient. SB1168 is not on the Judiciary committee in week 4, so it won't be on that agenda prior to week 5. 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.
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. This bill has not been scheduled for a committee hearing.
There is no House companion bill.
4. HURRICANE FLOOD INSURANCE DISCLOSURE NOTICE HB1011
HB1011 by Representative Cruz, the bill requires insurers to obtain the applicant's written acknowledgement for the absence of flood coverage. The bill passed its first committee with 3 amendments. We are working with the sponsor to improve the language in the bill.
The companion measure, SB1282, by Taddeo, is on the Senate Banking and Insurance committee agenda on January 30
5. HOUSE HURRICANE CATASTROPHE FUND BILL PASSES FIRST COMMITTEE HB97/SB1454
The bill, by Santiago, creates an additional coverage options 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 cash build-up factor to fluctuate, 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.
6. CITIZENS IT SECURITY/ PUB. REC. AND MEETINGS HB1127/SB1880
HB 1127 by Representative Lee unanimously passed its second of three committees this week. The bill 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.
SB1880 by Broxson, is on the January 30 Banking and Insurance committee agenda in the Senate.
7. CITIZENS CLEARINGHOUSE/PUBLIC RECORDS EXEMPTION SB7012
SB7012, a Senate Banking and Insurance Committee Bill has passed its first of three committees. The bill is on the agenda in its second committee, Governmental Oversight and Accountability, on January 30.
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
1. UNFAIR INSURANCE TRADE PRACTICES HEADED TO HOUSE FLOOR SB756/HB533
SB756 sponsored by Senator Grimsley, passed it's first of three committees in week 2 and is now on the Commerce and Tourism Committee Agenda for next week.
Meanwhile, HB 533 by Representative Hager has passed all of its House committees and is headed to the 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 ON WEEK 4 COMMITTEE AGENDA- SB396/HB811
SB 396 by Senator Hukill passed its first committee and was amended adding two onerous amendments. The bill will be heard next at in the Senate Commerce and Tourism committee next Monday, Janurary 29th. The bill provides that an automobile insurance policy may require an inspection of a damaged windshield before the windshield repair or replacement is authorized by the insurer. Current law provides that the deducable provision of an automobile insurance policy providing comprehensive or combined additional coverage do not apply to damage to windshield covered under the policy. While current law does not prohibit insurers from requiring inspections, this bill affirmatively states that an insurer may require an inspection before authorizing windshield repair or replacement. An amendment has been filed by Senator Hukill for the January 30 committee hearing in an effort to put the bill back in an industry-friendly posture.
HB811 by Representative Plasencia, has not been scheduled for a committee hearing.
3. NAMED-DRIVER EXCLUSION VOTED DOWN IN SENATE SB518/HB329
SB518 by Senator Bean was voted down in the Senate Banking and Insurance Committee this 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. AUTONOMOUS VEHICLES ADVANCES IN BOTH CHAMBERS SB712/HB353
HB353 by Representative Brodeur and Fischer unanimously passed its second of three committees this week and SB712 by Senator Brandes, unanimously passed its first of three committees this week. 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.
5. TEXTING WHILE DRIVING CLEARS KEEPS MOVING SB90/HB33
SB90 by Senator Perry and HB33 by Toledo both passed in committees this week, leaving each bill with only one committee stop left in each chamber.
The bill makes texting while driving...already a traffic infraction, 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 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. A similar amendment was offered but withdrawn on the House bill. Another amendment was offered in committee in both the House and Senate to replace the texting offense with a more general requirement for hands-free use of any electronic devices. These amendments were defeated or withdrawn, but not until after there were lengthy debates by Black Caucus members on the problems that a primary offense could create for minorities and possibly result in racial profiling.
1. $100 DOLLAR BILL CONTINUES TO ADVANCE SB762/HB483
HB483 by Representative Yarborough, amending the insurance Unfair Trade Practices Act, passed its final committee stop this week and will head to the House on the floor calendar for January 31. Meanwhile, SB 762 Sponsored by Senator Mayfield has passed in the Banking and Insurance Committee, its first of three committee stops.
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, in conjunction with the sale of a group policy, without running afoul of the inducement provisions of 626.9541, F.S.
2. INSURANCE OMNIBUS BILL PASSES FIRST HOUSE COMMITTEE (POLICY EXECUTION) - SB784/HB465
HB465 by Representative Santiago 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 weekand 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 has two remaining committee stops in the House.
The Senate companion,
SB784 by Senator Brandes, has not been scheduled for a committee hearing.
3. MEDIATION BILLS TEMPORARILY POSTPONED SB1034/HB1043
SB 1034 by Senator Steube and HB1043 by Representative Metz were both Temporarily Postponed in their first committee stops this week. 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 1 and 3 but was temporarily postponed both times to allow discussion between industry and the sponsors. The bill is back on the agenda for the Judiciary Committee on January 30
4. PUBLIC RECORDS/TRADE SECRETS HELD BY AN AGENCY 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 bill has passed its 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:
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.
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 and Senator Mayfield, are similar but not identical, and have not been heard in committee yet.
5. PROHIBITION AGAINST CONTRACTING WITH SCRUTINIZED COMPANIES PASSES FINAL HOUSE COMMITTEE HB545/SB780
HB545 by Representatives Fine and Moskowitz cleared its final committee this week and is headed to the floor. 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 BILL CLEARS FIRST COMMITTEES SB1292/HB1073
The DFS Agency bills, SB1292 by Senator Stargel and HB1073 by Hager, both passed their first committee stops this week. The bill includes changes to current "Exchange of Business" law, reducing from 24 to four the number of times per clanedar 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.
The bill also makes changes to allow for electronic images (of warrants, vouchers, or checks) to be deemed as original records. Opposition has surfaced by the Independent Funeral Directors to another provision in the bill, which allows monies from the Consumer Protection Trust Fund to be used for IT equipment.
7. HIGH SCHOOL FINANCIAL LITERACY STARTS MOVING IN THE HOUSE HB323/SB88
HB323 by Representative Fitzenhagen unanimously passed its first of two committee stops this week. 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.