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Statute 627.736 Required personal injury protection benefits;
exclusions; priority; claims
(1) REQUIRED BENEFITS.--Every insurance
policy complying with the security requirements of s.
627.733 shall provide personal injury protection to the named
insured, relatives residing in the same household, persons operating
the insured motor vehicle, passengers in such motor vehicle, and
other persons struck by such motor vehicle and suffering bodily
injury while not an occupant of a self-propelled vehicle, subject to
the provisions of subsection (2) and paragraph (4)(e),
to a limit of $10,000 for loss sustained by
any such person as a result of bodily injury, sickness, disease, or
death arising out of the ownership, maintenance, or use of a motor
vehicle as follows:
(a) Medical
benefits.--Eighty percent
of all reasonable expenses for medically necessary medical,
surgical, X-ray, dental, and rehabilitative services, including
prosthetic devices, and medically necessary ambulance, hospital, and
nursing services. However, the medical benefits shall provide
reimbursement only for such services and care that are lawfully
provided, supervised, ordered, or prescribed by a physician licensed
under chapter 458 or chapter 459, a dentist licensed under chapter
466, or a chiropractic physician licensed under chapter 460 or that
are provided by any of the following persons or entities:
1. A hospital or ambulatory surgical center
licensed under chapter 395.
2. A person or entity licensed under ss.
401.2101-401.45 that provides emergency transportation and
treatment.
3. An entity wholly owned by one or more
physicians licensed under chapter 458 or chapter 459, chiropractic
physicians licensed under chapter 460, or dentists licensed under
chapter 466 or by such practitioner or practitioners and the spouse,
parent, child, or sibling of that practitioner or those
practitioners.
4. An entity wholly owned, directly or
indirectly, by a hospital or hospitals.
5. A health care clinic licensed under ss.
400.990-400.995 that is:
a. Accredited by the Joint Commission on
Accreditation of Healthcare Organizations, the American Osteopathic
Association, the Commission on Accreditation of Rehabilitation
Facilities, or the Accreditation Association for Ambulatory Health
Care, Inc.; or
b. A health care clinic that:
(I) Has a medical director licensed under
chapter 458, chapter 459, or chapter 460;
(II) Has been continuously licensed for
more than 3 years or is a publicly traded corporation that issues
securities traded on an exchange registered with the United States
Securities and Exchange Commission as a national securities
exchange; and
(III) Provides at least four of the
following medical specialties:
(A) General medicine.
(B) Radiography.
(C) Orthopedic medicine.
(D) Physical medicine.
(E) Physical therapy.
(F) Physical rehabilitation.
(G) Prescribing or dispensing outpatient
prescription medication.
(H) Laboratory services.
The Financial Services Commission shall adopt by rule the form that
must be used by an insurer and a health care provider specified in
subparagraph 3., subparagraph 4., or subparagraph 5. to document
that the health care provider meets the criteria of this paragraph,
which rule must include a requirement for a sworn statement or
affidavit.
(b) Disability benefits.--Sixty
percent of any loss of gross income and loss of earning capacity per
individual from inability to work proximately caused by the injury
sustained by the injured person, plus all expenses reasonably
incurred in obtaining from others ordinary and necessary services in
lieu of those that, but for the injury, the injured person would
have performed without income for the benefit of his or her
household. All disability benefits payable under this provision
shall be paid not less than every 2 weeks.
(c) Death benefits.--Death benefits
equal to the lesser of $5,000 or the remainder of unused personal
injury protection benefits per individual. The insurer may pay such
benefits to the executor or administrator of the deceased, to any of
the deceased's relatives by blood or legal adoption or connection by
marriage, or to any person appearing to the insurer to be equitably
entitled thereto.
Only insurers writing motor vehicle liability insurance in this
state may provide the required benefits of this section, and no such
insurer shall require the purchase of any other motor vehicle
coverage other than the purchase of property damage liability
coverage as required by s.
627.7275
as a condition for providing such required benefits.
Insurers may not require that property damage liability insurance in
an amount greater than $10,000 be purchased in conjunction with
personal injury protection. Such insurers shall make benefits and
required property damage liability insurance coverage available
through normal marketing channels. Any insurer writing motor vehicle
liability insurance in this state who fails to comply with such
availability requirement as a general business practice shall be
deemed to have violated part IX of chapter 626, and such violation
shall constitute an unfair method of competition or an unfair or
deceptive act or practice involving the business of insurance; and
any such insurer committing such violation shall be subject to the
penalties afforded in such part, as well as those which may be
afforded elsewhere in the insurance code.
(2) AUTHORIZED EXCLUSIONS.--Any insurer may
exclude benefits:
(a) For injury sustained by the named
insured and relatives residing in the same household while occupying
another motor vehicle owned by the named insured and not insured
under the policy or for injury sustained by any person operating the
insured motor vehicle without the express or implied consent of the
insured.
(b) To any injured person, if such person's
conduct contributed to his or her injury under any of the following
circumstances:
1. Causing injury to himself or herself
intentionally; or
2. Being injured while committing a felony.
Whenever an insured is charged with conduct as set forth in
subparagraph 2., the 30-day payment provision of paragraph (4)(b)
shall be held in abeyance, and the insurer shall withhold payment of
any personal injury protection benefits pending the outcome of the
case at the trial level. If the charge is nolle prossed or dismissed
or the insured is acquitted, the 30-day payment provision shall run
from the date the insurer is notified of such action.
(3) INSURED'S RIGHTS TO RECOVERY OF SPECIAL
DAMAGES IN TORT CLAIMS.--No insurer shall have a lien on any
recovery in tort by judgment, settlement, or otherwise for personal
injury protection benefits, whether suit has been filed or
settlement has been reached without suit. An injured party who is
entitled to bring suit under the provisions of ss.
627.730-627.7405, or his or her legal representative, shall have
no right to recover any damages for which personal injury protection
benefits are paid or payable. The plaintiff may prove all of his or
her special damages notwithstanding this limitation, but if special
damages are introduced in evidence, the trier of facts, whether
judge or jury, shall not award damages for personal injury
protection benefits paid or payable. In all cases in which a jury is
required to fix damages, the court shall instruct the jury that the
plaintiff shall not recover such special damages for personal injury
protection benefits paid or payable.
(4) BENEFITS; WHEN DUE.--Benefits due from
an insurer under ss.
627.730-627.7405 shall be primary, except that benefits received
under any workers' compensation law shall be credited against the
benefits provided by subsection (1) and shall be due and payable as
loss accrues, upon receipt of reasonable proof of such loss and the
amount of expenses and loss incurred which are covered by the policy
issued under ss.
627.730-627.7405. When the Agency for Health Care Administration
provides, pays, or becomes liable for medical assistance under the
Medicaid program related to injury, sickness, disease, or death
arising out of the ownership, maintenance, or use of a motor
vehicle, benefits under ss.
627.730-627.7405 shall be subject to the provisions of the
Medicaid program.
(a) An insurer may require written notice
to be given as soon as practicable after an accident involving a
motor vehicle with respect to which the policy affords the security
required by ss.
627.730-627.7405.
(b) Personal injury protection insurance
benefits paid pursuant to this section shall be overdue if not paid
within 30 days after the insurer is furnished written notice of the
fact of a covered loss and of the amount of same. If such written
notice is not furnished to the insurer as to the entire claim, any
partial amount supported by written notice is overdue if not paid
within 30 days after such written notice is furnished to the
insurer. Any part or all of the remainder of the claim that is
subsequently supported by written notice is overdue if not paid
within 30 days after such written notice is furnished to the
insurer. When an insurer pays only a portion of a claim or rejects a
claim, the insurer shall provide at the time of the partial payment
or rejection an itemized specification of each item that the insurer
had reduced, omitted, or declined to pay and any information that
the insurer desires the claimant to consider related to the medical
necessity of the denied treatment or to explain the reasonableness
of the reduced charge, provided that this shall not limit the
introduction of evidence at trial; and the insurer shall include the
name and address of the person to whom the claimant should respond
and a claim number to be referenced in future correspondence.
However, notwithstanding the fact that written notice has been
furnished to the insurer, any payment shall not be deemed overdue
when the insurer has reasonable proof to establish that the insurer
is not responsible for the payment. For the purpose of calculating
the extent to which any benefits are overdue, payment shall be
treated as being made on the date a draft or other valid instrument
which is equivalent to payment was placed in the United States mail
in a properly addressed, postpaid envelope or, if not so posted, on
the date of delivery. This paragraph does not preclude or limit the
ability of the insurer to assert that the claim was unrelated, was
not medically necessary, or was unreasonable or that the amount of
the charge was in excess of that permitted under, or in violation
of, subsection (5). Such assertion by the insurer may be made at any
time, including after payment of the claim or after the 30-day time
period for payment set forth in this paragraph.
(c) Upon receiving notice of an accident
that is potentially covered by personal injury protection benefits,
the insurer must reserve $5,000 of personal injury protection
benefits for payment to physicians licensed under chapter 458 or
chapter 459 or dentists licensed under chapter 466 who provide
emergency services and care, as defined in s.
395.002(9), or who provide hospital inpatient care. The amount
required to be held in reserve may be used only to pay claims from
such physicians or dentists until 30 days after the date the insurer
receives notice of the accident. After the 30-day period, any amount
of the reserve for which the insurer has not received notice of a
claim from a physician or dentist who provided emergency services
and care or who provided hospital inpatient care may then be used by
the insurer to pay other claims. The time periods specified in
paragraph (b) for required payment of personal injury protection
benefits shall be tolled for the period of time that an insurer is
required by this paragraph to hold payment of a claim that is not
from a physician or dentist who provided emergency services and care
or who provided hospital inpatient care to the extent that the
personal injury protection benefits not held in reserve are
insufficient to pay the claim. This paragraph does not require an
insurer to establish a claim reserve for insurance accounting
purposes.
(d) All overdue payments shall bear simple
interest at the rate established under s.
55.03 or the rate established in the insurance contract,
whichever is greater, for the year in which the payment became
overdue, calculated from the date the insurer was furnished with
written notice of the amount of covered loss. Interest shall be due
at the time payment of the overdue claim is made.
(e) The insurer of the owner of a motor
vehicle shall pay personal injury protection benefits for:
1. Accidental bodily injury sustained in
this state by the owner while occupying a motor vehicle, or while
not an occupant of a self-propelled vehicle if the injury is caused
by physical contact with a motor vehicle.
2. Accidental bodily injury sustained
outside this state, but within the United States of America or its
territories or possessions or Canada, by the owner while occupying
the owner's motor vehicle.
3. Accidental bodily injury sustained by a
relative of the owner residing in the same household, under the
circumstances described in subparagraph 1. or subparagraph 2.,
provided the relative at the time of the accident is domiciled in
the owner's household and is not himself or herself the owner of a
motor vehicle with respect to which security is required under ss.
627.730-627.7405.
4. Accidental bodily injury sustained in
this state by any other person while occupying the owner's motor
vehicle or, if a resident of this state, while not an occupant of a
self-propelled vehicle, if the injury is caused by physical contact
with such motor vehicle, provided the injured person is not himself
or herself:
a. The owner of a motor vehicle with
respect to which security is required under ss.
627.730-627.7405; or
b. Entitled to personal injury benefits
from the insurer of the owner or owners of such a motor vehicle.
(f) If two or more insurers are liable to
pay personal injury protection benefits for the same injury to any
one person, the maximum payable shall be as specified in subsection
(1), and any insurer paying the benefits shall be entitled to
recover from each of the other insurers an equitable pro rata share
of the benefits paid and expenses incurred in processing the claim.
(g) It is a violation of the insurance code
for an insurer to fail to timely provide benefits as required by
this section with such frequency as to constitute a general business
practice.
(h) Benefits shall not be due or payable to
or on the behalf of an insured person if that person has committed,
by a material act or omission, any insurance fraud relating to
personal injury protection coverage under his or her policy, if the
fraud is admitted to in a sworn statement by the insured or if it is
established in a court of competent jurisdiction. Any insurance
fraud shall void all coverage arising from the claim related to such
fraud under the personal injury protection coverage of the insured
person who committed the fraud, irrespective of whether a portion of
the insured person's claim may be legitimate, and any benefits paid
prior to the discovery of the insured person's insurance fraud shall
be recoverable by the insurer from the person who committed
insurance fraud in their entirety. The prevailing party is entitled
to its costs and attorney's fees in any action in which it prevails
in an insurer's action to enforce its right of recovery under this
paragraph.
(5) CHARGES FOR TREATMENT OF INJURED
PERSONS.--
(a)1. Any physician, hospital, clinic, or
other person or institution lawfully rendering treatment to an
injured person for a bodily injury covered by personal injury
protection insurance may charge the insurer and injured party only a
reasonable amount pursuant to this section for the services and
supplies rendered, and the insurer providing such coverage may pay
for such charges directly to such person or institution lawfully
rendering such treatment, if the insured receiving such treatment or
his or her guardian has countersigned the properly completed
invoice, bill, or claim form approved by the office upon which such
charges are to be paid for as having actually been rendered, to the
best knowledge of the insured or his or her guardian. In no event,
however, may such a charge be in excess of the amount the person or
institution customarily charges for like services or supplies. With
respect to a determination of whether a charge for a particular
service, treatment, or otherwise is reasonable, consideration may be
given to evidence of usual and customary charges and payments
accepted by the provider involved in the dispute, and reimbursement
levels in the community and various federal and state medical fee
schedules applicable to automobile and other insurance coverages,
and other information relevant to the reasonableness of the
reimbursement for the service, treatment, or supply.
2. The insurer may limit reimbursement to
80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by
providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided
by a hospital licensed under chapter 395, 75 percent of the
hospital's usual and customary charges.
c. For emergency services and care as
defined by s.
395.002(9) provided in a facility licensed under chapter 395
rendered by a physician or dentist, and related hospital inpatient
services rendered by a physician or dentist, the usual and customary
charges in the community.
d. For hospital inpatient services, other
than emergency services and care, 200 percent of the Medicare Part A
prospective payment applicable to the specific hospital providing
the inpatient services.
e. For hospital outpatient services, other
than emergency services and care, 200 percent of the Medicare Part A
Ambulatory Payment Classification for the specific hospital
providing the outpatient services.
f. For all other medical services,
supplies, and care, 200 percent of the allowable amount under the
participating physicians schedule of Medicare Part B. However, if
such services, supplies, or care is not reimbursable under Medicare
Part B, the insurer may limit reimbursement to 80 percent of the
maximum reimbursable allowance under workers' compensation, as
determined under s.
440.13 and rules adopted thereunder which are in effect at the
time such services, supplies, or care is provided. Services,
supplies, or care that is not reimbursable under Medicare or
workers' compensation is not required to be reimbursed by the
insurer.
3. For purposes of subparagraph 2., the
applicable fee schedule or payment limitation under Medicare is the
fee schedule or payment limitation in effect at the time the
services, supplies, or care was rendered and for the area in which
such services were rendered, except that it may not be less than the
allowable amount under the participating physicians schedule of
Medicare Part B for 2007 for medical services, supplies, and care
subject to Medicare Part B.
4. Subparagraph 2. does not allow the
insurer to apply any limitation on the number of treatments or other
utilization limits that apply under Medicare or workers'
compensation. An insurer that applies the allowable payment
limitations of subparagraph 2. must reimburse a provider who
lawfully provided care or treatment under the scope of his or her
license, regardless of whether such provider would be entitled to
reimbursement under Medicare due to restrictions or limitations on
the types or discipline of health care providers who may be
reimbursed for particular procedures or procedure codes.
5. If an insurer limits payment as
authorized by subparagraph 2., the person providing such services,
supplies, or care may not bill or attempt to collect from the
insured any amount in excess of such limits, except for amounts that
are not covered by the insured's personal injury protection coverage
due to the coinsurance amount or maximum policy limits.
(b)1. An insurer or insured is not required
to pay a claim or charges:
a. Made by a broker or by a person making a
claim on behalf of a broker;
b. For any service or treatment that was
not lawful at the time rendered;
c. To any person who knowingly submits a
false or misleading statement relating to the claim or charges;
d. With respect to a bill or statement that
does not substantially meet the applicable requirements of paragraph
(d);
e. For any treatment or service that is
upcoded, or that is unbundled when such treatment or services should
be bundled, in accordance with paragraph (d). To facilitate prompt
payment of lawful services, an insurer may change codes that it
determines to have been improperly or incorrectly upcoded or
unbundled, and may make payment based on the changed codes, without
affecting the right of the provider to dispute the change by the
insurer, provided that before doing so, the insurer must contact the
health care provider and discuss the reasons for the insurer's
change and the health care provider's reason for the coding, or make
a reasonable good faith effort to do so, as documented in the
insurer's file; and
f. For medical services or treatment billed
by a physician and not provided in a hospital unless such services
are rendered by the physician or are incident to his or her
professional services and are included on the physician's bill,
including documentation verifying that the physician is responsible
for the medical services that were rendered and billed.
2. The Department of Health, in
consultation with the appropriate professional licensing boards,
shall adopt, by rule, a list of diagnostic tests deemed not to be
medically necessary for use in the treatment of persons sustaining
bodily injury covered by personal injury protection benefits under
this section. The initial list shall be adopted by January 1, 2004,
and shall be revised from time to time as determined by the
Department of Health, in consultation with the respective
professional licensing boards. Inclusion of a test on the list of
invalid diagnostic tests shall be based on lack of demonstrated
medical value and a level of general acceptance by the relevant
provider community and shall not be dependent for results entirely
upon subjective patient response. Notwithstanding its inclusion on a
fee schedule in this subsection, an insurer or insured is not
required to pay any charges or reimburse claims for any invalid
diagnostic test as determined by the Department of Health.
(c)1. With respect to any treatment or
service, other than medical services billed by a hospital or other
provider for emergency services as defined in s.
395.002 or inpatient services rendered at a hospital-owned
facility, the statement of charges must be furnished to the insurer
by the provider and may not include, and the insurer is not required
to pay, charges for treatment or services rendered more than 35 days
before the postmark date or electronic transmission date of the
statement, except for past due amounts previously billed on a timely
basis under this paragraph, and except that, if the provider submits
to the insurer a notice of initiation of treatment within 21 days
after its first examination or treatment of the claimant, the
statement may include charges for treatment or services rendered up
to, but not more than, 75 days before the postmark date of the
statement. The injured party is not liable for, and the provider
shall not bill the injured party for, charges that are unpaid
because of the provider's failure to comply with this paragraph. Any
agreement requiring the injured person or insured to pay for such
charges is unenforceable.
2. If, however, the insured fails to
furnish the provider with the correct name and address of the
insured's personal injury protection insurer, the provider has 35
days from the date the provider obtains the correct information to
furnish the insurer with a statement of the charges. The insurer is
not required to pay for such charges unless the provider includes
with the statement documentary evidence that was provided by the
insured during the 35-day period demonstrating that the provider
reasonably relied on erroneous information from the insured and
either:
a. A denial letter from the incorrect
insurer; or
b. Proof of mailing, which may include an
affidavit under penalty of perjury, reflecting timely mailing to the
incorrect address or insurer.
3. For emergency services and care as
defined in s.
395.002 rendered in a hospital emergency department or for
transport and treatment rendered by an ambulance provider licensed
pursuant to part III of chapter 401, the provider is not required to
furnish the statement of charges within the time periods established
by this paragraph; and the insurer shall not be considered to have
been furnished with notice of the amount of covered loss for
purposes of paragraph (4)(b) until it receives a statement complying
with paragraph (d), or copy thereof, which specifically identifies
the place of service to be a hospital emergency department or an
ambulance in accordance with billing standards recognized by the
Health Care Finance Administration.
4. Each notice of insured's rights under s.
627.7401 must include the following statement in type no smaller
than 12 points:
BILLING REQUIREMENTS.--Florida Statutes
provide that with respect to any treatment or services, other than
certain hospital and emergency services, the statement of charges
furnished to the insurer by the provider may not include, and the
insurer and the injured party are not required to pay, charges for
treatment or services rendered more than 35 days before the
postmark date of the statement, except for past due amounts
previously billed on a timely basis, and except that, if the
provider submits to the insurer a notice of initiation of
treatment within 21 days after its first examination or treatment
of the claimant, the statement may include charges for treatment
or services rendered up to, but not more than, 75 days before the
postmark date of the statement.
(d) All statements and bills for medical
services rendered by any physician, hospital, clinic, or other
person or institution shall be submitted to the insurer on a
properly completed Centers for Medicare and Medicaid Services (CMS)
1500 form, UB 92 forms, or any other standard form approved by the
office or adopted by the commission for purposes of this paragraph.
All billings for such services rendered by providers shall, to the
extent applicable, follow the Physicians' Current Procedural
Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS),
or ICD-9 in effect for the year in which services are rendered and
comply with the Centers for Medicare and Medicaid Services (CMS)
1500 form instructions and the American Medical Association Current
Procedural Terminology (CPT) Editorial Panel and Healthcare Correct
Procedural Coding System (HCPCS). All providers other than hospitals
shall include on the applicable claim form the professional license
number of the provider in the line or space provided for "Signature
of Physician or Supplier, Including Degrees or Credentials." In
determining compliance with applicable CPT and HCPCS coding,
guidance shall be provided by the Physicians' Current Procedural
Terminology (CPT) or the Healthcare Correct Procedural Coding System
(HCPCS) in effect for the year in which services were rendered, the
Office of the Inspector General (OIG), Physicians Compliance
Guidelines, and other authoritative treatises designated by rule by
the Agency for Health Care Administration. No statement of medical
services may include charges for medical services of a person or
entity that performed such services without possessing the valid
licenses required to perform such services. For purposes of
paragraph (4)(b), an insurer shall not be considered to have been
furnished with notice of the amount of covered loss or medical bills
due unless the statements or bills comply with this paragraph, and
unless the statements or bills are properly completed in their
entirety as to all material provisions, with all relevant
information being provided therein.
(e)1. At the initial treatment or service
provided, each physician, other licensed professional, clinic, or
other medical institution providing medical services upon which a
claim for personal injury protection benefits is based shall require
an insured person, or his or her guardian, to execute a disclosure
and acknowledgment form, which reflects at a minimum that:
a. The insured, or his or her guardian,
must countersign the form attesting to the fact that the services
set forth therein were actually rendered;
b. The insured, or his or her guardian, has
both the right and affirmative duty to confirm that the services
were actually rendered;
c. The insured, or his or her guardian, was
not solicited by any person to seek any services from the medical
provider;
d. The physician, other licensed
professional, clinic, or other medical institution rendering
services for which payment is being claimed explained the services
to the insured or his or her guardian; and
e. If the insured notifies the insurer in
writing of a billing error, the insured may be entitled to a certain
percentage of a reduction in the amounts paid by the insured's motor
vehicle insurer.
2. The physician, other licensed
professional, clinic, or other medical institution rendering
services for which payment is being claimed has the affirmative duty
to explain the services rendered to the insured, or his or her
guardian, so that the insured, or his or her guardian, countersigns
the form with informed consent.
3. Countersignature by the insured, or his
or her guardian, is not required for the reading of diagnostic tests
or other services that are of such a nature that they are not
required to be performed in the presence of the insured.
4. The licensed medical professional
rendering treatment for which payment is being claimed must sign, by
his or her own hand, the form complying with this paragraph.
5. The original completed disclosure and
acknowledgment form shall be furnished to the insurer pursuant to
paragraph (4)(b) and may not be electronically furnished.
6. This disclosure and acknowledgment form
is not required for services billed by a provider for emergency
services as defined in s.
395.002, for emergency services and care as defined in s.
395.002 rendered in a hospital emergency department, or for
transport and treatment rendered by an ambulance provider licensed
pursuant to part III of chapter 401.
7. The Financial Services Commission shall
adopt, by rule, a standard disclosure and acknowledgment form that
shall be used to fulfill the requirements of this paragraph,
effective 90 days after such form is adopted and becomes final. The
commission shall adopt a proposed rule by October 1, 2003. Until the
rule is final, the provider may use a form of its own which
otherwise complies with the requirements of this paragraph.
8. As used in this paragraph,
"countersigned" means a second or verifying signature, as on a
previously signed document, and is not satisfied by the statement
"signature on file" or any similar statement.
9. The requirements of this paragraph apply
only with respect to the initial treatment or service of the insured
by a provider. For subsequent treatments or service, the provider
must maintain a patient log signed by the patient, in chronological
order by date of service, that is consistent with the services being
rendered to the patient as claimed. The requirements of this
subparagraph for maintaining a patient log signed by the patient may
be met by a hospital that maintains medical records as required by
s.
395.3025 and applicable rules and makes such records available
to the insurer upon request.
(f) Upon written notification by any
person, an insurer shall investigate any claim of improper billing
by a physician or other medical provider. The insurer shall
determine if the insured was properly billed for only those services
and treatments that the insured actually received. If the insurer
determines that the insured has been improperly billed, the insurer
shall notify the insured, the person making the written notification
and the provider of its findings and shall reduce the amount of
payment to the provider by the amount determined to be improperly
billed. If a reduction is made due to such written notification by
any person, the insurer shall pay to the person 20 percent of the
amount of the reduction, up to $500. If the provider is arrested due
to the improper billing, then the insurer shall pay to the person 40
percent of the amount of the reduction, up to $500.
(g) An insurer may not systematically
downcode with the intent to deny reimbursement otherwise due. Such
action constitutes a material misrepresentation under s.
626.9541(1)(i)2.
(6) DISCOVERY OF FACTS ABOUT AN INJURED
PERSON; DISPUTES.--
(a) Every employer shall, if a request is
made by an insurer providing personal injury protection benefits
under ss.
627.730-627.7405 against whom a claim has been made, furnish
forthwith, in a form approved by the office, a sworn statement of
the earnings, since the time of the bodily injury and for a
reasonable period before the injury, of the person upon whose injury
the claim is based.
(b) Every physician, hospital, clinic, or
other medical institution providing, before or after bodily injury
upon which a claim for personal injury protection insurance benefits
is based, any products, services, or accommodations in relation to
that or any other injury, or in relation to a condition claimed to
be connected with that or any other injury, shall, if requested to
do so by the insurer against whom the claim has been made, furnish
forthwith a written report of the history, condition, treatment,
dates, and costs of such treatment of the injured person and why the
items identified by the insurer were reasonable in amount and
medically necessary, together with a sworn statement that the
treatment or services rendered were reasonable and necessary with
respect to the bodily injury sustained and identifying which portion
of the expenses for such treatment or services was incurred as a
result of such bodily injury, and produce forthwith, and permit the
inspection and copying of, his or her or its records regarding such
history, condition, treatment, dates, and costs of treatment;
provided that this shall not limit the introduction of evidence at
trial. Such sworn statement shall read as follows: "Under penalty of
perjury, I declare that I have read the foregoing, and the facts
alleged are true, to the best of my knowledge and belief." No cause
of action for violation of the physician-patient privilege or
invasion of the right of privacy shall be permitted against any
physician, hospital, clinic, or other medical institution complying
with the provisions of this section. The person requesting such
records and such sworn statement shall pay all reasonable costs
connected therewith. If an insurer makes a written request for
documentation or information under this paragraph within 30 days
after having received notice of the amount of a covered loss under
paragraph (4)(a), the amount or the partial amount which is the
subject of the insurer's inquiry shall become overdue if the insurer
does not pay in accordance with paragraph (4)(b) or within 10 days
after the insurer's receipt of the requested documentation or
information, whichever occurs later. For purposes of this paragraph,
the term "receipt" includes, but is not limited to, inspection and
copying pursuant to this paragraph. Any insurer that requests
documentation or information pertaining to reasonableness of charges
or medical necessity under this paragraph without a reasonable basis
for such requests as a general business practice is engaging in an
unfair trade practice under the insurance code.
(c) In the event of any dispute regarding
an insurer's right to discovery of facts under this section, the
insurer may petition a court of competent jurisdiction to enter an
order permitting such discovery. The order may be made only on
motion for good cause shown and upon notice to all persons having an
interest, and it shall specify the time, place, manner, conditions,
and scope of the discovery. Such court may, in order to protect
against annoyance, embarrassment, or oppression, as justice
requires, enter an order refusing discovery or specifying conditions
of discovery and may order payments of costs and expenses of the
proceeding, including reasonable fees for the appearance of
attorneys at the proceedings, as justice requires.
(d) The injured person shall be furnished,
upon request, a copy of all information obtained by the insurer
under the provisions of this section, and shall pay a reasonable
charge, if required by the insurer.
(e) Notice to an insurer of the existence
of a claim shall not be unreasonably withheld by an insured.
(7) MENTAL AND PHYSICAL EXAMINATION OF
INJURED PERSON; REPORTS.--
(a) Whenever the mental or physical
condition of an injured person covered by personal injury protection
is material to any claim that has been or may be made for past or
future personal injury protection insurance benefits, such person
shall, upon the request of an insurer, submit to mental or physical
examination by a physician or physicians. The costs of any
examinations requested by an insurer shall be borne entirely by the
insurer. Such examination shall be conducted within the municipality
where the insured is receiving treatment, or in a location
reasonably accessible to the insured, which, for purposes of this
paragraph, means any location within the municipality in which the
insured resides, or any location within 10 miles by road of the
insured's residence, provided such location is within the county in
which the insured resides. If the examination is to be conducted in
a location reasonably accessible to the insured, and if there is no
qualified physician to conduct the examination in a location
reasonably accessible to the insured, then such examination shall be
conducted in an area of the closest proximity to the insured's
residence. Personal protection insurers are authorized to include
reasonable provisions in personal injury protection insurance
policies for mental and physical examination of those claiming
personal injury protection insurance benefits. An insurer may not
withdraw payment of a treating physician without the consent of the
injured person covered by the personal injury protection, unless the
insurer first obtains a valid report by a Florida physician licensed
under the same chapter as the treating physician whose treatment
authorization is sought to be withdrawn, stating that treatment was
not reasonable, related, or necessary. A valid report is one that is
prepared and signed by the physician examining the injured person or
reviewing the treatment records of the injured person and is
factually supported by the examination and treatment records if
reviewed and that has not been modified by anyone other than the
physician. The physician preparing the report must be in active
practice, unless the physician is physically disabled. Active
practice means that during the 3 years immediately preceding the
date of the physical examination or review of the treatment records
the physician must have devoted professional time to the active
clinical practice of evaluation, diagnosis, or treatment of medical
conditions or to the instruction of students in an accredited health
professional school or accredited residency program or a clinical
research program that is affiliated with an accredited health
professional school or teaching hospital or accredited residency
program. The physician preparing a report at the request of an
insurer and physicians rendering expert opinions on behalf of
persons claiming medical benefits for personal injury protection, or
on behalf of an insured through an attorney or another entity, shall
maintain, for at least 3 years, copies of all examination reports as
medical records and shall maintain, for at least 3 years, records of
all payments for the examinations and reports. Neither an insurer
nor any person acting at the direction of or on behalf of an insurer
may materially change an opinion in a report prepared under this
paragraph or direct the physician preparing the report to change
such opinion. The denial of a payment as the result of such a
changed opinion constitutes a material misrepresentation under s.
626.9541(1)(i)2.; however, this provision does not preclude the
insurer from calling to the attention of the physician errors of
fact in the report based upon information in the claim file.
(b) If requested by the person examined, a
party causing an examination to be made shall deliver to him or her
a copy of every written report concerning the examination rendered
by an examining physician, at least one of which reports must set
out the examining physician's findings and conclusions in detail.
After such request and delivery, the party causing the examination
to be made is entitled, upon request, to receive from the person
examined every written report available to him or her or his or her
representative concerning any examination, previously or thereafter
made, of the same mental or physical condition. By requesting and
obtaining a report of the examination so ordered, or by taking the
deposition of the examiner, the person examined waives any privilege
he or she may have, in relation to the claim for benefits, regarding
the testimony of every other person who has examined, or may
thereafter examine, him or her in respect to the same mental or
physical condition. If a person unreasonably refuses to submit to an
examination, the personal injury protection carrier is no longer
liable for subsequent personal injury protection benefits.
(8) APPLICABILITY OF PROVISION REGULATING
ATTORNEY'S FEES.--With respect to any dispute under the provisions
of ss.
627.730-627.7405 between the insured and the insurer, or between
an assignee of an insured's rights and the insurer, the provisions
of s.
627.428 shall apply, except as provided in subsections (10) and
(15).
(9) An insurer may negotiate and enter into
contracts with licensed health care providers for the benefits
described in this section, referred to in this section as "preferred
providers," which shall include health care providers licensed under
chapters 458, 459, 460, 461, and 463. The insurer may provide an
option to an insured to use a preferred provider at the time of
purchase of the policy for personal injury protection benefits, if
the requirements of this subsection are met. If the insured elects
to use a provider who is not a preferred provider, whether the
insured purchased a preferred provider policy or a nonpreferred
provider policy, the medical benefits provided by the insurer shall
be as required by this section. If the insured elects to use a
provider who is a preferred provider, the insurer may pay medical
benefits in excess of the benefits required by this section and may
waive or lower the amount of any deductible that applies to such
medical benefits. If the insurer offers a preferred provider policy
to a policyholder or applicant, it must also offer a nonpreferred
provider policy. The insurer shall provide each policyholder with a
current roster of preferred providers in the county in which the
insured resides at the time of purchase of such policy, and shall
make such list available for public inspection during regular
business hours at the principal office of the insurer within the
state.
(10) DEMAND LETTER.--
(a) As a condition precedent to filing any
action for benefits under this section, the insurer must be provided
with written notice of an intent to initiate litigation. Such notice
may not be sent until the claim is overdue, including any additional
time the insurer has to pay the claim pursuant to paragraph (4)(b).
(b) The notice required shall state that it
is a "demand letter under s.
627.736(10)" and shall state with specificity:
1. The name of the insured upon which such
benefits are being sought, including a copy of the assignment giving
rights to the claimant if the claimant is not the insured.
2. The claim number or policy number upon
which such claim was originally submitted to the insurer.
3. To the extent applicable, the name of
any medical provider who rendered to an insured the treatment,
services, accommodations, or supplies that form the basis of such
claim; and an itemized statement specifying each exact amount, the
date of treatment, service, or accommodation, and the type of
benefit claimed to be due. A completed form satisfying the
requirements of paragraph (5)(d) or the lost-wage statement
previously submitted may be used as the itemized statement. To the
extent that the demand involves an insurer's withdrawal of payment
under paragraph (7)(a) for future treatment not yet rendered, the
claimant shall attach a copy of the insurer's notice withdrawing
such payment and an itemized statement of the type, frequency, and
duration of future treatment claimed to be reasonable and medically
necessary.
(c) Each notice required by this subsection
must be delivered to the insurer by United States certified or
registered mail, return receipt requested. Such postal costs shall
be reimbursed by the insurer if so requested by the claimant in the
notice, when the insurer pays the claim. Such notice must be sent to
the person and address specified by the insurer for the purposes of
receiving notices under this subsection. Each licensed insurer,
whether domestic, foreign, or alien, shall file with the office
designation of the name and address of the person to whom notices
pursuant to this subsection shall be sent which the office shall
make available on its Internet website. The name and address on file
with the office pursuant to s.
624.422 shall be deemed the authorized representative to accept
notice pursuant to this subsection in the event no other designation
has been made.
(d) If, within 30 days after receipt of
notice by the insurer, the overdue claim specified in the notice is
paid by the insurer together with applicable interest and a penalty
of 10 percent of the overdue amount paid by the insurer, subject to
a maximum penalty of $250, no action may be brought against the
insurer. If the demand involves an insurer's withdrawal of payment
under paragraph (7)(a) for future treatment not yet rendered, no
action may be brought against the insurer if, within 30 days after
its receipt of the notice, the insurer mails to the person filing
the notice a written statement of the insurer's agreement to pay for
such treatment in accordance with the notice and to pay a penalty of
10 percent, subject to a maximum penalty of $250, when it pays for
such future treatment in accordance with the requirements of this
section. To the extent the insurer determines not to pay any amount
demanded, the penalty shall not be payable in any subsequent action.
For purposes of this subsection, payment or the insurer's agreement
shall be treated as being made on the date a draft or other valid
instrument that is equivalent to payment, or the insurer's written
statement of agreement, is placed in the United States mail in a
properly addressed, postpaid envelope, or if not so posted, on the
date of delivery. The insurer is not obligated to pay any attorney's
fees if the insurer pays the claim or mails its agreement to pay for
future treatment within the time prescribed by this subsection.
(e) The applicable statute of limitation
for an action under this section shall be tolled for a period of 30
business days by the mailing of the notice required by this
subsection.
(f) Any insurer making a general business
practice of not paying valid claims until receipt of the notice
required by this subsection is engaging in an unfair trade practice
under the insurance code.
(11) FAILURE TO PAY VALID CLAIMS; UNFAIR OR
DECEPTIVE PRACTICE.--
(a) If an insurer fails to pay valid claims
for personal injury protection with such frequency so as to indicate
a general business practice, the insurer is engaging in a prohibited
unfair or deceptive practice that is subject to the penalties
provided in s.
626.9521 and the office has the powers and duties specified in
ss.
626.9561-626.9601 with respect thereto.
(b) Notwithstanding s.
501.212, the Department of Legal Affairs may investigate and
initiate actions for a violation of this subsection, including, but
not limited to, the powers and duties specified in part II of
chapter 501.
(12) CIVIL ACTION FOR INSURANCE FRAUD.--An
insurer shall have a cause of action against any person convicted
of, or who, regardless of adjudication of guilt, pleads guilty or
nolo contendere to insurance fraud under s.
817.234, patient brokering under s.
817.505, or kickbacks under s.
456.054, associated with a claim for personal injury protection
benefits in accordance with this section. An insurer prevailing in
an action brought under this subsection may recover compensatory,
consequential, and punitive damages subject to the requirements and
limitations of part II of chapter 768, and attorney's fees and costs
incurred in litigating a cause of action against any person
convicted of, or who, regardless of adjudication of guilt, pleads
guilty or nolo contendere to insurance fraud under s.
817.234, patient brokering under s.
817.505, or kickbacks under s.
456.054, associated with a claim for personal injury protection
benefits in accordance with this section.
(13) MINIMUM BENEFIT COVERAGE.--If the
Financial Services Commission determines that the cost savings under
personal injury protection insurance benefits paid by insurers have
been realized due to the provisions of this act, prior legislative
reforms, or other factors, the commission may increase the minimum
$10,000 benefit coverage requirement. In establishing the amount of
such increase, the commission must determine that the additional
premium for such coverage is approximately equal to the premium cost
savings that have been realized for the personal injury protection
coverage with limits of $10,000.
(14) FRAUD ADVISORY NOTICE.--Upon receiving
notice of a claim under this section, an insurer shall provide a
notice to the insured or to a person for whom a claim for
reimbursement for diagnosis or treatment of injuries has been filed,
advising that:
(a) Pursuant to s.
626.9892, the Department of Financial Services may pay rewards
of up to $25,000 to persons providing information leading to the
arrest and conviction of persons committing crimes investigated by
the Division of Insurance Fraud arising from violations of s.
440.105, s.
624.15, s.
626.9541, s.
626.989, or s.
817.234.
(b) Solicitation of a person injured in a
motor vehicle crash for purposes of filing personal injury
protection or tort claims could be a violation of s.
817.234, s.
817.505, or the rules regulating The Florida Bar and should be
immediately reported to the Division of Insurance Fraud if such
conduct has taken place.
(15) ALL CLAIMS BROUGHT IN A SINGLE
ACTION.--In any civil action to recover personal injury protection
benefits brought by a claimant pursuant to this section against an
insurer, all claims related to the same health care provider for the
same injured person shall be brought in one action, unless good
cause is shown why such claims should be brought separately. If the
court determines that a civil action is filed for a claim that
should have been brought in a prior civil action, the court may not
award attorney's fees to the claimant.
(16) SECURE ELECTRONIC DATA TRANSFER.--If
all parties mutually and expressly agree, a notice, documentation,
transmission, or communication of any kind required or authorized
under ss.
627.730-627.7405 may be transmitted electronically if it is
transmitted by secure electronic data transfer that is consistent
with state and federal privacy and security laws.
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