2021 Florida Session Update
WEEK 2
LIFE AND HEALTH
1. FLAHIGA SB 1470/HB 797
HB 797 by Representative Robinson passed its second of three committees this week and will be up next in Commerce. The bill updates Part III of Chapter 631 which establishes the Florida Life and Health Insurance Guaranty Association (“FLAHIGA”) by adding conforming language contained in the National Association of Insurance Commissioners (“NAIC”) “Life and health Insurance Guaranty Association Model Act.”
FLAHIGA is the safety net that pays the policyholder claims of insolvent life, annuity, health and long-term care insurance companies should they be rendered insolvent. In Florida, the state Chief Financial Officer maintains the duty to liquidate insolvent insurers, and FLAHIGA has the duty to pay outstanding claims. All U.S. states have a guaranty fund, and when an insurance company sells in multiple states, the different state guaranty funds work together to assure claims are paid. The changes include:
· Including a definition of Moody’s Corporate Bond Yield Average.
· Updating the definition of “person” to include all legal entities including LLC’s.
· Clarifying that FLAHIGA, in dealing with an impaired insurer, may also assume or reissue policies of insolvent carriers, in addition to guaranteeing and reinsuring them.
· Confirming that FLAHIGA may intervene in court proceedings involving insurer impairments or liquidations occurring in other states or involving subrogation issues.
· Clarify that FLAHIGA may both avoid paying an improper claim and recovering payment of improper claims.
· Confirm membership in the National Association of Life and Health Guaranty Associations.
· Remove the $250 cap on Class A assessments, which are made to pay expenses of the association, as other provisions of the Statute allow expense payments to be made from Class B assessments, which are made primarily to pay claims of insolvent life and health insurance companies. Clarify that Class A assessments may be made on a pro-rata, or non-pro-rata basis.
· Clarify that if an insurer receives a deferral from paying an assessment to FLAHIGA because the assessment would endanger the assessed insurers financial solvency, that once the insurer regains financial strength, it still owes the assessment.
· Remove the reduced assessment level levied on non-profit annuity insurers, placing them on par with other annuity insurers.
· Grant power to the FLAHIGA Board to remove a member insurer board member if that insurer becomes impaired or insolvent.
· Require the FLAHIGA Board to establish a policy and procedure to address conflicts of interest.
- This legislation will strengthen the “safety net” of FLAHIGA to pay the claims of insolvent life, annuity, health, and long-term care insurance companies.
The Senate companion SB 1470 by Senator Boyd will be up in its first committee the Senate Banking and Insurance committee on March 16th.
2. FAMILY AND MEDICAL LEAVE ACT AND INSURANCE BENEFITS FUND SB 1586/SB 1596/HB 1245/HB 1249
SB 1596 by Senator Cruz has yet to be heard in its first committee the Senate Commerce and Tourism Committee. The bill creates the Florida Family and Medical Leave Act which requires an employer to allow certain employees to take family and medical leave to bond with a minor child up the child’s birth, adoption or foster care placement. The bill also requires an employer to provide notice to employees of certain rights relating to family and medical leave and authorizes an employee to file a civil action against an employer for a violation.
SB 1586 by Senator Cruz also has yet to be heard in its first of three committees, the Senate Banking and Insurance Committee. The bill creates the Family and Medical Leave Insurance Benefits Fund under DFS. It provides that money credited to the trust fund shall be used or the purpose of administering the family and medical leave insurance benefits program.
The House versions of these bills are HB 1245 and HB 1249 and both have yet to be heard in their first committee stops. These bills are unlikely to move.
HEALTH
1. PBM TRANSPARENCY SB 390/HB 1155
SB 390 by Senator Wright will be heard in its first of three committees, the Senate Banking and Insurance Committee, on March 16th. The bill authorizes OIR to examine each PBM as often as it deems necessary. The bill revises the definition of the term “maximum allowable cost” that a PBM reimburses a pharmacist for a prescription drug. Authorizes OIR to require health insurers to submit to the office certain contracts or contract amendments entered into with PBMs.
HB 1155 by Representative Toledo has yet to be heard in its first of four committee stops. The bill also authorizes OIR through market conduct examinations to examine PBMs as often as it deems necessary. The bill also requires DFS to be given access to certain records, data and information and then authorizes the department to investigate certain violations. Additionally, the bill provides that PBMs may not do a number of things including:
· Charging a pharmacist or pharmacy a fee related to the payment of a pharmacy claim; or
· Retroactively denying, holding back, or reducing payments for cover claims.
2. MEDICAID SINGLE PBM HB 1043/SB 1306
HB 1043 by Rep. Fine would require the Agency for Health Care Administration to select single pharmacy benefit administrator through a competitive procurement process. The bill would increase dispensing fee payments to independent pharmacies for filling prescriptions and fund the fee increase by recouping a portion of capitation fees to managed care plans. This bill will likely have a large fiscal impact to the state once the analysis is performed by the Appropriations committee. This bill has been referred to three committees and has not yet been heard. However, the Finance subcommittee heard a presentation on the topic by AHCA Deputy Secretary Beth Kidder and an actuary from Milliman, which has done a study on the issue. This week, the Senate HHS Appropriations committee heard a similar presentation on the topic.
SB1306 by Senator Rodriguez has been referred to three committees but not yet been heard.
3. RETROACTIVE DENIAL OF HEALTH CARE CLAIMS SB 1388/HB 851
HB 851 by Representative Valdes has yet to be heard in its first of four committee stops. The bill would prohibit health insurers and HMOs from retroactively denying claims because of insured and subscriber ineligibility at any time under certain circumstances.
Meanwhile 1388 by Senator Harrell, which has yet to be heard in any of its three committees, also prohibits health insurers, at any time, from retroactively denying a claim because of the ineligibility of the insured if the insurer verified the insured’s eligibility at the time of treatment or provided an authorization number. The bill also prohibits HMOs, at any time, from retroactively denying a claim because of the ineligibility of the subscriber if the HMO verified the subscriber’s eligibility at the time of treatment or provided an authorization number.
4. TELEHEALTH CONTROLLED SUBSTANCE RX & REMOTE PHARMACY SB 700/HB 1477
SB 700 by Senator A Rodriguez passed its first of three committees in Health Policy and will be up next in Senate Appropriations Subcommittee on Health and Human Services. The bill makes a number of changes relating to telehealth including:
· Authorizes AHCA, to reimburse for telehealth services involving store-and-forward technology and remote patient monitoring services under the Medicaid program.
· Expands the definition of telehealth to include:
- A telehealth provider’s supervision of health care services through the use of synchronous and asynchronous telecommunications technology.
- Telephone calls, personal 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 enrolled in Medicaid, 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 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.
· 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
HB 1477 by Representative Melo, which is the House companion for this bill, has not been referenced to committees yet.
5. TELEHEALTH REPEALER SB 864/HB 6079
HB 6079 by Representative Stevenson has yet to be heard in its first of three committee stops. The bill strikes the prohibition on audio only telephone calls. The bill also allows for an out-of-state peer-to-peer second opinion to be issued for a patient.
SB 864 by Senator Brodeur is the companion for this bill, has been referred to three committees but is expected to be heard in Senate Health Policy Committee on March 17th.
6. LOSS RUN (OMNIBUS) SB 742/HB 815
HB 815 by Gregory is an Omnibus insurance bill that passed its first of three committees this week and will be up next in House State Administration and Technology Appropriations subcommittee. A provision of the bill would correct the application of the 2020 loss run statute as it relates to group health insurance, removing conflicting provisions of existing laws.
SB 742, the companion measure by Perry passed its first committee this week in Senate Banking and Insurance and will be up next in Senate Judiciary.
7. INSULIN CO-PAY CAP SB 786/HB 109
SB 786 by Senator Cruz requires policies to cap insured's monthly cost-sharing obligation for covered prescription insulin drugs at $100 for a 30-day supply, regardless of the amount or type of insulin needed to fill the insured's prescription. SB 786 has yet to be heard in its first of three committee stops the Senate Banking and Insurance committee.
The House companion for this bill is HB 109 by Representative Bell. This bill has yet to be placed on an agenda in its first of four committee stops.
8. MANDATES:
Mental Health Reporting SB 1024/HB 701
HB 701 by Representative Stevenson passed its second of four committee stops this week. As amended, the bill requires health insurers and HMOs to provide written notice to covered individuals outlining federal and state requirements for coverage of behavioral health services. Additionally, the bill requires the written notice to include the statewide toll-free telephone number at DFS. Finally, it requires OIR to report on the number of mental health related consumer complaints received during the past year.
SB 1024 by Representative Brodeur passed it first of three committees this week in Senate Banking and Insurance. The same amendment was adopted, so bills are identical. The bill will be up next in Senate Appropriations Subcommittee on Agriculture, Environment and General Government.
Hearing Aid Coverage HB 373/SB 1268
SB 1268 by Senator Baxley passed its first of three committees last week, the Senate Banking and Insurance Committee and goes next to the Health Policy Committee. The bill requires that health insurer or HMO contracts provide major medical coverage for a dependent child to provide hearing aid coverage for children from birth through 18 years. The bill requires a minimum coverage limit of $3,500 per ear within a 24-month period.
HB 373 by Representative Brannan has yet to be heard in its first of three committee stops.
DENTAL
1. MEDICAID COVERAGE FOR ADULT DENTAL SERVICES SB 1552/HB 1117
SB 1152 by Senator Pizzo has yet to be heard in its first of three committees, the Senate Health Policy Committee. The bill requires the reimbursement of certain adult dental services by AHCA under the Medicaid program. The bill prohibits reimbursement for these services if provided in a mobile dental unit and requires that the minimum benefits provided under Medicaid prepaid dental health to cover certain adult dental services.
HB 1117 by Representative Nixon has yet to be heard in its first of three committee stops.
PROPERTY
1. RESIDENTIAL PROPERTY INSURANCE/CONTINGENCY RISK MULTIPLIER SB 76/HB 305
SB 76 by Senator Boyd passed its second of three committee in Senate Judiciary this week and will be up next in Senate Rules. The bill revises the statutes that govern property insurance policies including attorney fees, roof coverage provisions, notice periods for bringing claims, alternative dispute resolution, lawsuits involving property insurance policies, consolidation of legal actions, and assignment agreements. Additionally, the bill establishes a third-degree felony for knowingly aiding or abetting an unlicensed person who transacts or engages in insurance activities without a license.
The bill makes changes to attorney fees by amending Florida Statutes to create a strong presumption that the lodestar fee is a sufficient and reasonable award of attorney fees in a claim arising under a property insurance policy. This presumption is rebuttable only in rare and exceptional circumstances by evidence that competent counsel could not be retained in a reasonable manner.
The bill amends the roof coverage provisions through the use of a roof surface reimbursement schedule to limit coverage in a personal lines residential property insurance policy. The roof surface reimbursement schedule must provide for full replacement coverage for any roof surfaces type less than 10 years old. For roofs 10 years old or older the reimbursement schedule is as follows:
· 70 percent for a metal roof type;
· 40 percent for a concrete tile and clay tile roof type;
· 40 percent for a wood shake and wood shingle roof type;
· 25 percent for all other roof types.
The bill also amends current law to require that a claim, supplemental claim, or reopened claim under a property insurance policy must be provided to the insurer within 2 years of the date of loss.
The House version of this bill, HB 305 by Representative Rommel, has yet to be heard in its first of three committees, the House Insurance & Banking Subcommittee.
2. COMMUNITY ASSOCIATIONS/SUBROGATION SB 630/HB 867
SB 630 revises the regulation and governance of condominium, cooperative, and homeowners’ associations. The bill authorizes condominium, cooperative, and homeowners’ associations to extinguish discriminatory restrictions in recorded title transactions. The bill changes include prohibiting a unit owner’s insurance policy from including rights of subrogation against the association if the association’s policy does not provide subrogation rights against the unit owner. Fannie Mae mortgage lending guidelines require that the insurance policy for a condominium project waive the right of subrogation against unit owners. The bill also creates a prohibition for certain uses of escrow funds including insurance costs. The bill is on the Community Affairs Committee agenda on March 16th, the second of its three committees.
HB 867 by Representative Shoaf has yet to be heard in its first of three committee stops.
3. CREDIT FOR REINSURANCE SB 728/HB 733
SB 728 by Senator Broxson passed its second of three committees last week and will be up next in its final committee stop, Senate Rules. The bill provides insurers with credit for reinsurance and eliminates additional collateral requirements for reinsurers if the reinsurer is domiciled in a “reciprocal jurisdiction” and meets requirements set forth in the bill.
The bill’s revisions to Florida law governing credit for reinsurance enact 2019 revisions to the National Association of Insurance Commissioners (NAIC) Credit for Reinsurance Model Law and the Credit for Reinsurance Model Regulation.
The requirements include, but are not limited to:
· Minimum capital and surplus requirements;
· Minimum solvency or capital ratios;
· Annual confirmation from the domiciliary supervisory authority stating that the reinsurer meets the capital, surplus, and minimum solvency or capital ratio requirements; and
· Prompt claims payment practices.
The bill defines a reciprocal jurisdiction as:
· A non-United States jurisdiction that is subject to an in-force covered agreement with the United States or, in the case of a covered agreement between the United States and the European Union, an EU member state;
· A United States jurisdiction that meets the National Association of Insurance Commissioners’ requirements for accreditation; or
· Any other qualified jurisdiction that meets the Office of Insurance Regulation’s requirements as set forth in rule.
The bill also provides insurers with protections against reinsurer failure that include, but are not limited to, requiring the reinsurer to post collateral equal to all outstanding reinsurance liabilities in the event the reinsurer enters into receivership; requiring the reinsurer to consent to the jurisdiction of courts of the State of Florida; and requiring the reinsurer to post collateral equal to all outstanding liabilities if the reinsurer resists enforcement of a court order from a jurisdiction in which it has consented.
HB 733 by Representative Fetterhoff passed its second committee this week and will be up next in House Commerce.
4. CITIZENS PROPERTY INSURANCE SB 1574
SB 1574 by Senator Brandes will be heard in its first of three committees, the Senate Banking and Insurance Committee, on March 16th. The bill makes several changes to the statutes governing Citizens including:
· Revising the method for determining the amounts of potential surcharges to be levied against policyholders;
· Specifying a limit for agent commission rates;
· Providing that eligible surplus lines insurers may participate in depopulation, take-out, or keep-out programs; and
· Authorizing information from underwriting files and confidential claims files to be released by Citizens to entities considering writing or underwriting risks insured by Citizens.
There is no House companion for this bill.
AUTO
1. PIP REPEAL SB 54/HB 719
SB 54 by Senator Burgess has passed its third and final committee stop this week and will be on the floor next. The bill repeals the Florida Motor Vehicle No-Fault Law, which requires every owner and registrant of a motor vehicle in this state to maintain Personal Injury Protection 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 increases required coverage amounts for garage liability and commercial motor vehicle insurance. It increases the cash deposit amount required for a certificate of self-insurance establishing financial responsibility for owners and operators of motor vehicles that are not for hire vehicles.
The bill requires insurers to offer 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, 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 also 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.
HB 719 by Representative Grall passed its first of three committee stops this week and will be up next in House Insurance and Banking. The bill is similar to the Senate version but does not contain the same bad faith reform provisions, does not allow for the lower limits based on income level, and does not include the Senate provisions relating to windshield deductible.
2. NAMED DRIVER EXCLUSION SB 420/HB 273
SB 420 by Senator Hooper passed its second of three committees this week and will be up next in Senate Rules. The bill authorizes private passenger motor vehicle policyholders to exclude identified individuals from the following coverages under their policy:
· Personal injury protection (PIP) coverage applicable to the identified individual’s injuries, lost wages, and death benefits;
· Property damage liability coverage;
· Bodily injury liability coverage, when required by law;
· Uninsured motorist coverage for any damages sustained by the excluded individual; and
· Any coverage the policyholder is not required by law to purchase.
However, a private passenger motor vehicle policy may not exclude coverage when:
· The identified excluded individual is injured while not operating a motor vehicle;
· The exclusion is unfairly discriminatory under the Florida Insurance Code; or
· The exclusion is inconsistent with the underwriting rules filed by the insurer.
The exclusion of an identified named driver is invalid unless the named policyholder consents in writing to the exclusion of a named driver and the excluded named drivers are listed on the policy’s declarations page or policy endorsement. An individual excluded by name in an insurance policy would not be covered for damages that occur while operating a motor vehicle that is insured under the policy. An excluded driver must separately comply with financial responsibility laws.
The House version of the bill is HB 273 by Representative Plakon passed its first of three committees last week in House Insurance and Banking and will be up next in House Commerce.
3. PEER-TO-PEER CAR SHARING SB 708/HB 785
SB 708 by Senator Brandes has yet to be heard in its first committee, the Senate Banking and Insurance Committee. The bill does the following:
· Creates definitions for peer-to-peer car sharing;
· Creates insurance coverage requirements for peer-to-peer;
· Names the liabilities and insurance exclusions;
· Provides a notification process for implications of a lien being on the vehicle; and
· Lists the required recordkeeping for a peer-to-peer program.
HB 785 by Representative Busatta Cabrera has yet to be heard in its first of two committees and will be up first in House Tourism, Infrastructure and Energy.
4. MOTOR VEHICLE RENTALS SB 566/HB 365
SB 566 by Senator Perry will be up in its first of three committees, the Senate Banking and Insurance Committee on March 16th. The bill seeks to specify the applicate sales tax rate on motor vehicle leases and rentals by motor vehicle companies and peer-to-peer car sharing programs. The bill also specifies the applicable rental surcharge on these same leases, rentals and car sharing programs. Additionally, the bill names the insurance requirements for peer-to-peer car sharing programs. Providing an exemption from vicarious liability for peer-to-peer and shared vehicle owners.
The House version HB 365 by Representative Caruso has yet to be heard in its first of three committees, the House Tourism, Infrastructure and Energy Subcommittee.
5. AUTOMATIC LICENSE PLATE READERS SB 1230/HB 1039
SB 1230 by Senator A Rodriguez has yet to be heard in its first of three committees, the Senate Transportation Committee. The bill authorizes counties and municipalities to install automatic license plate reader systems under certain circumstance. It also requires DOT in coordination with DHSMV to install and operate automated readers on state infrastructure.
The bill also establishes the Uninsured Vehicle Enforcement Program to enhance public safety through increased compliance with chapter 324. The program must include:
· A system for matching the license plate reader program with insurance data for registered vehicles;
· Appropriate safeguards and controls to prevent misuse or unauthorized access;
· A disaster recovery plan to ensue service continuity in the event of a disaster; and
· A process for notifying the owner of record of a vehicle who has been identified as out of compliance with chapter 324.
HB 1039 by Representative Plakon has yet to be heard in its first of three committees.
6. AUTONOMOUS VEHICLES SB 1620/HB 1289
SB 1620 by Senator Brandes passed its first of three committees, the Senate Transportation Committee this week and will be up next in Community Affairs. The bill defines a low-speed autonomous delivery vehicle. The bill also authorizes the operation of a low-speed autonomous delivery vehicle on certain streets and roads with a posted speed limit of up to 45 miles per hour under specified conditions.
HB 1289 by Representative McFarland has yet to be heard in its first of two committees.
GENERAL INSURANCE
1. INSURANCE OMNIBUS SB 742/HB 815
HB 815 by Representative Gregory passed its first of three committee stops, the House Insurance and Banking Subcommittee, on March 10th. The bill has several components to it including the following:
· Adding affiliates of insurance companies to the list of entities allowed to employ all-lines adjusters;
· Incentivizing home hardening by including Code-Plus fortification measures in the permitted discounts for insurance policyholders, and making the ISO Building Code Effectiveness Grading Schedule (BCEGS) an optional part of ratemaking;
· Requiring impaired workers’ compensation carriers to continue to report data to OIR in the same manner as non-impaired companies, maximizing the information available for ratemaking and review purposes;
· Correcting the application of the 2020 loss run statute as it relates to group health insurance, removing conflicting provisions of existing laws;
· Authorizing the use of multiple approved models (by the Hurricane Loss Methodology Commission) in property insurance ratemaking, increasing the amount of data available in the filing process, and retaining full OIR discretion as to how multiple models are used;
· Increasing flood insurance coverage options for consumers by exempting flood insurance from the diligent effort process, due to a lack of standalone admitted market options;
· Clarifying the timing of notice of suit on an insurer when served through the Department of Financial Services in response to competing regulatory guidance and case law;
· Ensuring that collateral protection insurance policies—that also insure a homeowner’s interest—are eligible for the CAT Fund so long as they represent the last known coverage amount reported to and by homeowners through the federally proscribed process, increasing affordability for policyholders;
· Aligning the distinction between commercial residential and truly commercial policies in Citizens with the CAT Fund’s requirements, ensuring that condo owners are able to access CAT Fund coverage when appropriate, lessening Citizens’ private reinsurance costs and corresponding rate need;
· Coinciding the application of law and ordinance coverage to the time of loss, guarding against unnecessary inflationary cost drivers, and incentivizing the repair of damaged homes by stipulating that full replacement cost value be paid within 2 years of the date of loss or 1 year from the notice of claim, whichever is later;
· Preventing vendor gamesmanship by clarifying that all services related to the inspection, repair, and restoration of homes are included in the 2019 AOB law, and ensuring that vendors send notice of a lawsuit to the appropriate designee of an insurer; and
· Authorizing personal and general lines agents to sell home warranties, service warranties, and motor vehicle service agreements without also having to secure a lesser limited lines license.
SB 742, by Senator Perry, passed its first of three committees this week and will be up next in Senate Judiciary.
2. DEPARTMENT OF FINANCIAL SERVICES SB 1408/HB 1209
HB 1209, by Representative Fetterhoff, has yet to be heard in its first of three committees, the Insurance & Banking Subcommittee. The bill has several components to various Divisions within DFS including the following:
Division of Insurance Agent and Agency Services:
· Continuing education change lowering the update course requirement to four hours (from five hours) for individuals licensed to solicit, sell, or adjust insurance.
· Addresses inadvertent failure to agent appointment issues to ensure proper appointment by an insurance company, including providing a process to correct.
· Allows for an up to 2-year suspension of a title insurance agent license for violations of the Florida Insurance Code (makes consistent with other agent license types).
· Makes it a felony crime for a person to knowingly aid and abet the unlicensed transaction of insurance.
Division of Investigative and Forensic Services (DIFS):
· Clarifies statute regarding false impersonation of law enforcement officers to include all DIFS officers rather than a subset.
· Clarifies the definition of “two-component explosive” in s. 552.081(13), F.S., to reference any detonator rather than the specific “No. 6 blasting cap.”
Division of Public Assistance Fraud (PAF):
· Clarifies statute to designate PAF as a criminal justice agency. This division transferred from FDLE in 2005 and though they operate as a criminal justice agency, statute was not appropriately amended to reflect at the time of the move. Maintaining this designation is critical to our work to fight public assistance fraud.
Division of State Fire Marshal:
· Firefighter Cancer coverage from Insurance Risk management Task Force.
· Corrects the clause that disallows a certified volunteer firefighter who is transitioning to a regular or permanent firefighter from continuing to serve their communities during training.
· A previously permitted fire alarm system that needs repairs will not be deemed compliant until the permit application has been issued and approved.
· Alteration of existing fire sprinkler systems if no change of occupancy or water demand.
· Amends Fire & Emergency Incident Information System Technical Advisory Panel members.
· Extends period for compliance with high-rise minimum radio signal strength for fire department communication.
· Prohibits influencing a fire safety inspector.
· Amends firefighter’s employment, standards, and training council to include DOH representative.
Division of Risk Management:
· Strengthens protections for state agencies and universities within the DFS Risk Management program regarding protections for sexual harassment victims – this allows the department to train against retaliation of a victim by disseminating personal identifying information.
· DMS must validate and approve out-of-pocket deductibles, copays, coinsurance costs and one-time cash payout for firefighter cancer claims.
SB 1408 by Senator Burgess passed its first committee stop on March 10th and will be up next in the Judiciary Committee.
3. DFS CONSUMER PROTECTION SB 1598/HB 717
HB 717 by Representative Clemons passed its second of three committee stops, the House State Administration and Technology subcommittee this week. The bill makes the following changes to the laws governing the divisions under the Florida Department of Financial Services (DFS):
· Consumer Credit Scores and Security Freezes – The bill prohibits consumer reporting agencies from charging a fee for reissuing a personal identification number used to remove a security freeze. It requires that insurers notify applicants of the availability of DFS’s financial literacy resources at certain times.
· Consumer Services – The bill requires that licensees provide documents when responding to written requests from DFS’s Division of Consumer Services.
· Professions – The bill defines “claims adjusting,” establishes insurance adjusting firms’ licensure requirements and penalties, and adds grounds upon which DFS may revoke or suspend licenses. The bill also establishes penalties for aiding and abetting unlicensed adjusting firms and bail bond agents.
· Agency Names – The bill provides the specific authority for DFS to disapprove agency names containing the words “Medicaid” and “Medicare.”
· Industrial Class Insurers – The bill amends the laws regarding industrial life insurance, small policies written upon individual lives, so that no such policies may be sold in Florida after July 1, 2021.
· Policyholder Rights – The bill extends the time that a policyholder has to cancel a contract with a public adjuster, and amends the Homeowner Claims Bill of Rights. The bill also provides claims handling requirements, including policyholder notification of a change in adjuster, for both admitted and surplus lines insurers.
· Export to Surplus Lines – The bill mandates that the notification regarding the export of a policy to the surplus lines market, currently given only to commercial policyholders, be given to all policyholders.
· Unfair or Deceptive Acts – The bill adds two grounds, based upon effectuating an entire insurance policy without consent, to the list of acts that constitute sliding.
· Foreign Venue Clauses Prohibited – The bill requires dispute resolution for policies sold in Florida, and insuring property in Florida, on the admitted or surplus lines markets, occurs in Florida.
· Florida Insurance Guaranty Association (FIGA) Deductible – Currently, a policyholder whose claim is covered by FIGA must pay a $100 deductible on that claim. The bill eliminates that deductible.
· Florida Workers’ Compensation Insurance Guaranty Association (FWCIGA) – FWCIGA covers claims for workers’ compensation policies that are in effect on the date of the final order of an insurer’s liquidation, leaving some policyholders whose policies have lapsed prior to liquidation with unpaid claims. The bill eliminates that disparity by removing an exception to the definition of “covered claim.”
The Senate version SB 1598 by Senator Gruters will be heard in its second committee on March 16th. This bill passed the Senate last year and all House committees and seems likely to pass.
4. INSURANCE CONSUMER ADVOCATE SB 1066
SB 1066 by Senator Taddeo has yet to be heard in its first of three committees, the Senate Banking and Insurance Committee. The bill authorizes the insurance consumer advocate to collect certain information that may include information asserted as trade secret information unless the trade secret information can be individually extrapolated, in which this trade secret information would remain protected.
There is no House companion for this bill.
WORKERS COMPENSATION
1. WORKERS’ COMPENSATION INSURANCE FOR EMPLOYEE LEASING COMPANIES SB 820/HB 1183
SB 820 by Senator Perry has yet to be heard in its first of three committees, the Senate Banking and Insurance Committee. The bill revises the definitions for purposes of the Florida Insurance Code and requires that the insurer of an employee leasing provide workers’ compensation coverage to all employees of the client company under certain conditions. The bill also requires insurers to conduct annual audits of employee leasing companies and client companies for certain purposes.
HB 1183 by Representative Fabricio has yet to be heard in its first of three committees, the House Insurance and Banking Committee.
WARRANTY
1. OMNIBUS SB 742/HB 815
HB 815 by Gregory is an Omnibus insurance bill that passed its first of three committees this week. A provision of the bill authorizes personal and general lines agents to sell home warranties, service warranties, and motor vehicle service agreements without also having to secure a lesser limited lines license.
SB 742, the companion measure by Perry also passed its first of three committees this week.
TORT REFORM
1. COVID-19 LIABILITY PROTECTION SB 72/HB 7
CS/HB 7 by Representative McClure has passed all three of its committees and the House floor. The bill provides several COVID-19-related liability protections for businesses, educational institutions, government entities, religious organizations, and other entities. Under the bill, a covered entity that makes a good faith effort to substantially comply with applicable COVID-19 guidance is immune from civil liability from a COVID-19-related civil action. The bill also provides that for any COVID-19-related civil action against a covered entity, 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's COVID-19-related injury occurred because of the defendant's conduct.
· Prove, by clear and convincing evidence, that the defendant was at least grossly negligent.
Senate companion, SB 72 by Senator Brandes passed its third and final committee this week and will be up next on the floor. The bill was amended in the committee to include the provisions of SB 74 to make the Senate version an all-encompassing Covid-19 liability protection bill coving both businesses and health care providers.
As it relates to businesses, the bill provides protections for all persons, including businesses, charities, educational institutions, and others against a COVID-19-related claim. Specifically, the bill requires a court to dismiss without prejudice any lawsuit bringing a COVID-19-related claim if the complaint is not pled with particularity, or if the person filing the lawsuit failed to provide an affidavit of a physician attesting that the defendant caused the plaintiff’s injuries or damages. If the court determines that the defendant made a good faith effort to substantially comply with government-issued health standards or guidance, the defendant is immune from liability.
As it relates to health care providers, the bill requires a plaintiff who files a COVID-19-related lawsuit to prove that a health care provider’s conduct constituted gross negligence or intentional misconduct. Under the bill, a health care provider has strong liability protections when the provider substantially followed authoritative or applicable government-issued heath standards or guidance related to COVID-19.
HB 7 does not contain the health provider protections that SB 72 as amended now does. Those are contained in a separate bill, HB 7005.
2. HEALTHCARE COVID-19 LIABILITY SB 74/HB 7005
SB 74 by Senator Brandes was not considered in its third and final Senate committee after the provisions of the bill were amended onto SB 72 creating a universal Covid-19 liability bill.
The bill, which is unlikely to be heard again since it is now in SB 72, 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:
· Contracting COVID-19;
· 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.
HB 7005 by Representative passed the House Judiciary Committee this week and will be up next on the House floor. This bill contains similar provisions to SB 74.
3. ACCURACY IN DAMAGES SB 846/HB 561
SB 846 by Senator Brandes passed its first of three committees in Senate Judiciary committee on Tuesday, March 9th. The bill creates the state statute for the recovery of past medical expenses in personal injury or wrongful death actions. The bill defines the term health care coverage for the purpose of this new section.
The bill also specifies that certain evidence offered to prove damages for the cost of past medical expenses is admissible in a personal injury or wrongful death suit under certain circumstances. The bill also specifies damages that may be recovered by a claimant for the reasonable and necessary cost or value of medical care rendered.
HB 561 the House companion has yet to be heard in its first of three committee stops.
OTHER
1. DRONES BY GOVERNMENT AGENCIES SB 44/HB 1049/SB 518/HB 433
SB 44 By Senator Wright passed its third and final committee this week and will be up next on the Senate floor. The bill provides additional exceptions to the statutory ban on certain uses of drones by law enforcement agencies, fire departments, state agencies, and political subdivisions of the state. Currently, statutes prohibit a:
· Law enforcement agency from using a drone to gather evidence or other information.
· Person, or state or local entity, from using a drone to capture images of private property in violation of a person’s reasonable expectation of privacy.
However, these prohibitions are subject to exceptions, and the bill adds to these exceptions. Specifically, the bill no longer prohibits a law enforcement agency from using a drone to:
· Assist with traffic management, except that the agency may not issue a traffic citation based on images or video captured by a drone; and
· Facilitate evidence collection at a crime scene or traffic crash scene.
Additionally, the bill provides that statutes do not prohibit a state agency or political subdivision to use a drone to assess damage due to a natural disaster, or for the management of vegetation and wildlife management on public land or water. Finally, the bill provides that this section does not prohibit certified fire department personnel to use drones, as long as they use the drone to perform tasks within the scope and practice authorized under their certifications.
SB 518 by Senator Diaz passed its first of three committees, the Military and Veterans Affairs, Space and Domestic Security Committee, this week. The bill creates an exception for the statutory prohibitions relating to use of drones to allow for a state agency or political subdivision for the assessment of damage due to a hurricane, a flood, a wildfire, or any other natural disaster.
Meanwhile HB 433 by Representative Andrade has yet to be heard in its first committee.
2. CONSUMER DATA PRIVACY HB 969/SB 1734
HB 969 by Representative McFarland passed its first of three committees, the House Regulatory Reform Subcommittee this week. The bill seeks to give consumers more control over the personal information that businesses collect about them. Additionally, the bill creates a private cause of action as a result of a business’ violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect personal information. This allows for civil action for any of the following:
· Damages in an amount not less than $100 and not greater than $750 per consumer per incident or actual damages, whichever is greater.
· Injunctive or declaratory relief, as the court deems proper.
In passing the Regulatory Reform committee this week there were five amendments made by the sponsor that were adopted. The amendments made several changes to the bill to:
· Clarify the definition of “third party,”
· Clarify the definition of “unique identifier” by including “linked to a consumer or family” as used elsewhere in the bill,
· Allow consumers to self-correct information if the business provides a mechanism,
· Clarify that business records may be retained for an existing legal dispute,
· Provide that businesses and service providers are not required to delete personal information under certain circumstances,
· Clarify that certain intentional actions do not qualify as selling personal information,
· Remove requirements that certain provisions be included in third party contracts,
· Remove two duplicate provisions,
· Clarify the time period for complying with a consumer request,
· Add the words “business associate” to conform with language used in other parts of the bill, and
· Add applicants, interns, and volunteers to the list of types of employees that are included under the employer exception.
The bill was modeled after the original version of the California Consumer Privacy Act and the business community is already raising questions of its impact on Florida businesses.
SB 1734 By Senator Bradley has been referred to three committees.
3. FARMING OPERATIONS SB 88/HB 1601
SB 88 by Senator Brodeur is a priority of President Simpson and was heard on the Senate floor for the first time March 11th and will be heard on the floor a final vote on March 18th. The bill amends the Florida Right to Farm Act. The general purpose of the act is to protect reasonable agricultural activities conducted on farm land from nuisance lawsuits. The bill provides stronger liability protections to farms that comply with best management practices and environmental regulations.
The definition of “farm operations” is expanded to add “agritourism” activities to the list of farm operations that receive limited legal protections in nuisance suits and other similar civil actions. The definition is further revised to include the generation of “particle emissions” to the list of conditions or activities that constitute farm operations.
The bill defines “established date of operation” for an agritourism activity as the date the specific agritourism activity commenced, providing for a separate established date of operation for an agritourism activity than for the farm operation.
The burden of proof that a plaintiff must meet in a nuisance action or similar legal action is raised to the clear and convincing evidence standard if the claim is based upon allegations that the defendant’s conduct did not comply with government environmental laws, regulations, or best management practices.
The bill limits those who may bring a nuisance action against a farm operation to people whose real property that is alleged to be damaged is located within one-half mile of the alleged source of the nuisance. The bill limits compensatory damages in a private nuisance action to the reduction in the fair market value of the plaintiff’s property, which may not exceed the fair market value of the property.
The bill prohibits a plaintiff from recovering punitive damages for a farm operation in a private nuisance action unless the alleged nuisance is based on substantially the same conduct that resulted in either a criminal conviction or a civil enforcement action by a government environmental regulatory agency and the conviction or enforcement action occurred within 3 years of the first act forming the basis of the nuisance action.
A losing plaintiff is liable for a farm’s litigation costs and expenses incurred defending a nuisance action if the farm operation has been in existence for 1 year or more before the legal action was instituted and the farm operation conforms to generally accepted agricultural and management practices or government environmental laws.
HB 1601, the House companion sponsored by Representative Williamson has yet to be referred to committee at this time.
4. CONSTRUCTION DEFECTS SB270/HB21
HB 21 by Representative Andrade narrowly passed its second of three committees this week and will be up next in House Judiciary. The bill makes the following changes to the construction defect statute:
· Limits actionable violations of the Florida Building Code to material violations.
· Requires a claimant to attempt to resolve a construction defect claim or Florida Building Code violation claim under any applicable warranty before sending a notice of claim or commencing legal action.
· Increases the specificity of detail a claimant must provide in the notice of claim and requires the claimant to include photographs of the damage and repair estimates or expert reports.
· Requires a claimant to affirm in the notice of claim that he or she has personal knowledge of the alleged defect and acknowledge that he or she is aware of the penalties for perjury.
· Requires a claimant to personally sign the notice of claim under penalty of perjury.
· Mandates that the respondent serve a copy of the notice of claim on each person the respondent believes is responsible for the defect.
· Requires a prevailing claimant to notify any mortgage company with a security interest in the property of the claim’s outcome and the defect’s repair.
The Senate version of the bill, SB 270 by Senator Perry, has passed one of its three committees and will be up next in Community Affairs.
5. CORPORATE INCOME TAX HB999
HB999 by Representative Hawkins has yet to be heard in its first of two committees the House Ways and Means Committee. The bill would mandate mandatory unitary combined reporting requiring multistate and multinational companies to file a single Florida corporate income tax return covering their entire business versus the ability to file separate returns for subsidiaries.
The result of this change would be an expansion in the number of entities required to file and pay Florida corporate income taxes. This would require separate legal entities located completely outside of the State to being paying Florida corporate income tax if they have a common ownership with a Florida corporate taxpayer. The result of this would be that income resulting from activities occurring outside of the State would become taxable.
There is no Senate companion at this time.
6. URBAN AGRICULTURE SB 628/HB 1013
SB 628 by Senator Rouson passed its first of three committees this week and will be up next in Senate Community Affairs on March 16th. The bill exempts farm equipment used in urban agriculture from certain provisions requiring farm equipment to be located at least 50 feet away from a public road. The bill does not exempt nonresidential farm buildings, fences, or signs located on lands used for urban agriculture from the Florida Building Code or local governmental regulations.
The also bill defines “urban agriculture” and provides applicability and expressly preserves local governmental authority to regulate urban agriculture under certain circumstances.
HB 1013 by Representative Rayner has yet to be heard in its first of three committees.
7. PROHIBITED GOVERNMENTAL TRANSACTIONS WITH TECHNOLOGY COMPANIES AND FOR CHINESE PRODUCTS HB 439/SB 810
HB 439 by Rep. Fine was referred to four committees and would prohibit agency or local governmental entity from purchasing any good made, or that contains specified percentage of parts that were produced, in China; prohibits agency or local governmental entity from purchasing any good or service made, sold, or provided by certain technology companies; provides that contract for purchase or provision of goods or services by agency or local governmental entity must include provision authorizing termination of such contract in certain circumstances. This bill could impact any vendor contracting with the state that hosts its cloud servers on Amazon or Google and could cause those contracts to be terminated. The State Board of Administration has done a memo demonstrating the large fiscal impact to the state of the bill.
SB810 by Senator Gruters has been referred to 3 committees but neither bill has been heard yet in committee.
