Correction: Florida Senate Amends, Advances Personal Injury Protection Bill (CS/CS/SB 1860)

• Please note the corrected date below

The Senate’s PIP bill, CS/CS/SB 1860 sponsored by Senator Joe Negron, was read for a second time on the Senate floor yesterday, March 6, 2012.  The bill was amended by the Senate and then rolled to third reading.

Several amendments were considered, some of which were adopted. It is expected that SB 1860 will be taken up for final passage on the Senate floor today.

Senator Negron was recognized to describe his bill.  He began by explaining how the Florida No Fault system was originally designed to operate.  Senator Negron then explained the problems that Florida is facing with the Personal Injury Protection (PIP) structure.  Specifically, he noted that the number of accidents has decreased, as well as the severity of injuries; yet premiums have risen over 50 percent since 2009.  He further noted that the amount of premium being collected by insurers is exceeded by the amount going out to pay claims. 

Senator Negron said that he was cautious not to overreact, or under-react, to the problem.  In his bill, he tries to address specific issues to address the problem.  To this end, he is focused on closing the “licensing loophole”; eliminating certain cost drivers, such as massage therapy; and addressing issues specific to the legal system, such as which Medicare fee schedule should apply.  

The Senate then began the amendatory process and considered the following amendments:

Amendment 148384, by Senator Latvala, addresses the Custer decision by clarifying that insured must comply with policy provisions, including submitting to examinations under oath.  Concerns were raised that insureds would be denied care until they submitted to an examination.  Despite repeated clarification and assurances by amendment supporters, this amendment failed.

Amendment 341236, by Senator Richter, exempts owners or registrants of vehicles used as taxicabs from the insurer’s right of reimbursement under s. 627.7405.  This amendment was adopted.

Amendment 230376, by Senator Diaz de la Portilla, was filed as a substitute amendment to Senator Richter’s

Amendment 202446.  Both amendments set forth parameters for an award of attorney fees, such as compliance with prevailing professional standards.  Senator Richter’s amendment eliminated the contingency risk multiplier, whereas Senator Diaz de la Portilla retained the multiplier, but added a rebuttable presumption that the multiplier would not apply unless certain findings are made by the court.  There were many questions asked about the amendments and considerable debate by Senators.  A vote was taken and Senator Diaz de la Portilla’s

Amendment 230376 was adopted by a vote of 24 to 15.   

However, after a brief recess, Senators voted 24 to 14 to reconsider Amendment 230376.  Senator Gaetz explained that he will support Senator Richter’s Amendment 202446 based on a agreement with Senator Richter that it will be amended on third reading to remove a provision requiring a discount of attorney fees for work performed or capable of being performed by a paralegal or legal assistant.  At that point, Senator Diaz de la Portilla was recognized to close on the amendment, again.  He expressed his dismay with the procedure, characterizing it as a “fairness issue” and referring to the “bully pulpit.”  When the Senators voted on Amendment 230376 for the second time, it was adopted again, this time by a vote of 22 to 18.  Later, Senator Diaz de la Portilla said his comments were not directed at his fellow Senators or Senate President Haridopolos, but rather “others” outside of the Senate.   

The Senate then considered Amendment 435312, by Senator Negron.  This is a comprehensive amendment that leaves sections 1 – 6, and 9 – 13, of CS/CS/SB 1860 intact, but amends sections 7 and 8 of the bill.  The amendment includes the following provisions which differ from CS/CS/SB 1860: 

• Limits death benefits to $5,000;
• Requires injured persons to receive initial services and care within 14 days after the accident for medical benefits to be covered;
• Provides that initial services must be provided, supervised, ordered, or prescribed by a physician, dentist, or provided in a hospital (or a facility that owns or is owned by a hospital);
• Limits follow up services and care to that prescribed or provided by a physician, chiropractor or dentist;
• Allows for physical therapy if prescribed; limits services and care to the lesser of 24 treatments or those services and care rendered within 12 weeks after the date of the initial treatment;
• Excludes massage and acupuncture from covered medical benefits;
• Requires the insurer to provide an itemization if the insurer pays only a portion of a claim or rejects a claim due to an alleged error (but excludes language regarding the 15 day time limit for the insurer to make payment after receipt of the resubmitted or revised claim);
• Removes reserve requirement with respect to hospitals; includes procedure and time frames for handling suspected fraudulent claims;
• Includes clinical facilities affiliated with accredited medical schools from licensing requirement;
• Removes exemption of physicians, dentists, and hospitals from demand letter requirements, as well as provisions regarding deficient demand letters.

Amendment 435312 was adopted.

The following amendments to Amendment 435312 were then considered:

Amendment 185654, by Senator Richter, provides parameters for attorney fee awards; includes a provision to require judges to issue written findings on attorney fee awards; and eliminates the contingency risk multiplier.  This amendment was withdrawn following the Senate’s adoption of Amendment 230376 (discussed above).

Amendment 193486, by Senator Margolis, requires written disclosure of any referral fees.  This amendment was adopted.

Amendment 706936, by Senator Bogdanoff, allows for reimbursement of medical benefits for massage and acupuncture if provider is licensed and based upon physician referral.  This amendment was withdrawn.

Amendment 686246, by Senator Negron, was characterized as a “technical amendment to correct cross references.”  The amendment corrects cross references with respect to the addition of chiropractors as authorized medical providers.  The amendment was adopted.

Amendment 158748, by Senator Negron, reinstates chiropractors as authorized to provide treatment in the initial 14 day period.  This amendment was adopted.

Amendment 553258, by Senator Bennett, clarifies that services and care a limited to the lesser of 24 “visits” or 12 weeks, as opposed to 24 “treatments” as stated in Amendment 435312.  This amendment was adopted. 

Amendment 913172, by Senator Bennett, limits medical benefits for soft tissue injuries not provided by a physician or chiropractor to a total of $2,000.  This amendment was adopted.

Amendment 685322, by Senator Sachs, removes ability of insurers to use Medicare modifiers to reduce payment for medical services.  This amendment was adopted.

Amendment 433832, by Senator Latvala, addresses the Custer decision by clarifying that insured must comply with policy provisions, including submitting to examinations under oath.  Concerns were raised that insureds would be denied care until they submitted to an examination.  This amendment was withdrawn.

Amendment 375990, by Senator Bennett, allows chiropractors to provide covered benefits.  This amendment was withdrawn.

Amendment 847780, by Senator Diaz de la Portilla, addresses attorney fees and the contingency risk multiplier.  This amendment was withdrawn.

Amendment 803118, by Senator Bennett, limits medical benefits for soft tissue injuries not provided by a physician or chiropractor to $2,000.  This amendment was withdrawn.

Amendment 766786, by Senator Bogdanoff, provides acupuncture services, but not massage services, are subject to reimbursement under certain circumstances.  This amendment failed.

Amendment 304444, by Senator Garcia, changes the initial treatment window from 14 days to 30 days.  This amendment failed.

The Senate then took up other amendments to CS/CS/SB 1860, including:

Amendment 642852, by Senator Altman, includes entities owned by hospitals or clinical facilities affiliated with an accredited medical school as authorized providers.  This amendment was withdrawn.

Amendment 807620, by Senator Richter, includes parameters for attorney fee awards and eliminates the contingency risk multiplier.  This amendment was withdrawn.  The Substitute Amendment 517230, by Senator Diaz de la Portilla, also was withdrawn.

Amendment 279528, by Senator Richter, excludes owner or registrants of taxicabs from the insurer’s right of reimbursement.  This amendment was withdrawn.

Amendment 761606, by Senator Diaz de la Portilla, allows notices to be provided by electronic means.  This amendment was adopted.

Amendment 835846, by Senator Margolis, requires written notice of referral fees.  This amendment was withdrawn.

Amendment 870118, by Senator Bennett, provides that insurers will lose their certificates of authority for at least 5 years if found to engage in a consistent pattern of denying claims without reason.  This amendment was adopted.

Amendment 573488, by Senator Bogdanoff, provides that massage services and acupuncture services may be reimbursed if the patient is referred by a physician or chiropractor.  This amendment was withdrawn.

Amendment 523698, by Senator Bennett, limits recovery for soft-tissue services or procedures not provided by a physician or chiropractor to $2,000.  This amendment was withdrawn.

Amendment 368242, by Senator Negron, requires entities to be licensed to receive reimbursement under Florida’s No Fault Law unless exempted.  This amendment was adopted.

Amendment 428680, by Senator Sachs, includes a title amendment to her adopted Amendment 685322.  This amendment was adopted.

Amendment 407476, by Senator Flores, provides for a rate rollback for insurers writing PIP insurance of 25% effective January 1, 2013.  This amendment was adopted.

Amendment 830472, by Senator Bogdanoff, includes acupuncture as a covered benefit with limitations.  This amendment was withdrawn.

Amendment 141570, by Senator Bennett, provides that initial services may be rendered by a chiropractor.  This amendment was withdrawn.

Amendment 655116, by Senator Siplin, prohibits insurers from including attorney fees costs in rate filings.  This amendment failed.

Amendment 537742, by Senators Jones, Dockery, and Sachs, provides for reimbursement for massage services subject to limits.  This amendment failed.

Amendment 148384, by Senator Latvala, provides that insurers must comply with policy provisions, including examinations under oath.  This amendment failed.

 

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