The Florida 2022 Legislature kicked off its nine-week session on January 11 with Republicans strongly in the majority in both Chambers. Both Senate President Wilton Simpson (R) and House Speaker Chris Sprowls (R) are in the last year of their two-year leadership positions. Simpson is expected to run for Agriculture Commissioner, a statewide elected Cabinet post, while Sprowls is expected to run for Hillsborough County Attorney.
We are two-thirds of the way through session, with three weeks remaining. Committee meetings are winding down as the action heads to the floor.
LIFE & HEALTH INSURANCE
1. Loss Run Statements SB 156/HB 275
by Sen. Broxson and Rep. Fernandez-Barquin
The Senate version of the bill passed the chamber on January 27 and is in messages to the House. The House version is on the calendar and eligible to be set for a floor vote. These bills are in a position to pass.
Loss run statements are reports produced by an insurer or consumer reporting agency containing the claims history of a policyholder with an authorized or unauthorized insurer. The bill:
· Reduces from the preceding 5 years to the preceding 3 years the claims history that must be included within a loss run statement.
· Requires that reports from group health insurers include premiums paid, the number of insureds on a monthly basis, and the dependent status.
· Requires that each insurer designate an individual or entity to receive written requests for loss run statements from insureds.
· Requires that the personal lines insurer provide the insured a loss run statement within 15 calendar days after receiving the insured’s written request subsequent to the insured providing the insurer with information on obtaining a loss run statement from a consumer reporting agency.
· Exempts life insurers from the requirements for loss run statements.
· Provides that, under a group health insurance policy, only the group policyholder may request and be provided a loss run statement.
· An amendment was adopted on both bills providing that the insurer is deemed to be in compliance if the surplus lines agent provides the loss run statement on behalf of the insurer.
HEALTH
1. Health Care Cost Savings SB 252/HB 1325
by Sen. Brodeur and Rep. Fernandez-Barquin
The Senate version has cleared two committee stops, however, a hostile amendment was filed and adopted without notice in the second committee mandating that health insurers participate in the shoppable services program. We are working with all of our health insurance and business coalition partners to address this issue, including providing cost information to Senate Appropriations staff. For the moment, the bill appears to be stalled in the Senate Appropriations committee. The House version received a hearing this week, February 16, in Finance and Facilities and passed by a vote of 18-0 without any hostile amendments. We are unsure if the House version will be heard again, but are making the rounds to ensure it stays clean.
The bill as filed expands the list of shoppable health services and requires health insurers and health maintenance organizations to expand their list of shoppable health services offered under a shared savings incentives program created pursuant to Florida’s Patient Savings Act, to incorporate 500 items and services by reference to a table in the November 12, 2020 United States Departments of Health and Human Services, Treasury, and Labor Transparency in Coverage Final Rule.
2. Step-therapy Protocols SB 730/HB 459
by Sen. Harrell and Rep. Willhite
The House version passed its last committee and is has been placed on the special order calendar for February 24; while the Senate version passed its second of three committees on February 10, by a vote of 10-0.
The bill defines “step therapy protocol” as a protocol or program that establishes the specific sequence in which prescription drugs, medical procedures, or courses of treatment must be used to treat a health condition. The bill also requires a process to receive a “protocol exemption”, which is a determination by an insurer or HMO to exempt an insured patient from an existing step therapy protocol. The bill requires an insurer or HMO to publish on its website, and provide to an insured in writing, a procedure for an insured patient and health care provider to request a protocol exemption. The procedure must include:
• The manner in which an insured patient or health care provider may request a protocol exemption;
• The manner and timeframe in which the health insurer or HMO is required to authorize or deny a protocol exemption request; and,
• The manner and timeframe in which an insured patient may appeal the denial of a request.
The bill requires an insurer or HMO granting a protocol exemption to specify the prescription drug, medical procedure, or course of treatment approved. Alternatively, an insurer or HMO denying a protocol exemption request must provide a written explanation of the denial, including the clinical rationale supporting the denial. The written explanation must also describe the procedure for appealing the determination by the insurer or HMO.
3. PBM Transparency SB1476/HB357
By Sen. Wright and Rep. Toledo
HB357 has passed all of its committees and is on the special order calendar for February 24. SB1476 passed its second of three committees in the Senate on February 16, by a vote of 10-0. The bills are similar but not identical and do the following:
· Would authorize the Office of Insurance Regulation to examine pharmacy benefit managers by transferring the authority from the Department of Health;
· Provides a penalty for a PBM that fails to register with OIR as a pharmacy benefit manager under certain circumstances;
· Revises the entities conducting pharmacy audits to which certain requirements and restrictions apply; and
· Provides that health insurers and health maintenance organizations that transfer a certain payment obligation to pharmacy benefit managers remain responsible for specified violations.
4. Telehealth SB 312/HB 17
by Sen. Diaz and Rep. Fabricio
HB17 Telehealth Practice Standards (Fabricio) and SB 312 Telehealth (Diaz) are paired on the House Special Order calendar on February 22. The Senate bill would strike audio-only but the House bill on deals with controlled substance prescribing. The House tabled the bills on the floor then later filed an amendment to strike-the audio-only portion of SB312, which means the bills will be limited to authority for prescribing controlled substances via telehealth. Once the amendment is adopted, SB312 will return to the Senate for concurrence prior to heading to the Governor.
· Both bills tweak the prohibition against prescribing of only Schedule II controlled substances through telehealth except under those specific circumstances. In practice, this change will authorize a telehealth provider to issue a renewal prescription for a controlled substance listed in Schedule III, IV, or V of s. 893.03, F.S., through telehealth, within the scope of his or her practice, and in accordance with other state and federal laws.
· Additionally, the Senate bill removes a provision in the definition of “telehealth” that excludes audio-only telephone calls (note: the House bill does not contain this provision.) We do not expect the House to agree to this provision.
5. PASSED and PRESENTED TO GOVERNOR: Covid-19 Liability Protections Application Extension SB 7014/HB 7021
by Senate Judiciary and House Health and Human Services Committee
The House took up the Senate version on February 10 and passed it out of the chamber by a vote of 87-31. The Governor has to act on the bill by February 24.
HB 7021 extends the sunset of Section 768.381, from March 29th, 2022 to June 1, 2023. The statute provides heightened civil liability protections to health care entities for claims brought by patients and residents related to:
· Diagnosis or treatment of, or failure to diagnose or treat, a person for COVID-19
· Provision of a novel or experimental COVID-19 treatment
· Transmission of COVID-19
· Delay or cancellation of a surgery or medical procedure, test, or appointment in certain situations
· An act or omission with respect to an emergency medical condition in certain situations
· Treatment of a patient with COVID-19 whose injuries were directly related to an exacerbation of preexisting conditions by COVID-19.
Current law requires a plaintiff to prove by the greater weight of the evidence that a defendant was grossly negligent or committed intentional misconduct in order to recover in a COVID-19-related medical claim.
6. Farm Bureau & Nonprofit Health Coverage Coops SB 1930/HB 1455
By Sen. Hooper and Rep. Truenow
Neither the House nor the Senate versions have been heard and it seems unlikely they will.
SB 1930 would allow Membership Organization Health Coverage by creating the "Farm Bureau and Not-For-Profit Membership Health Coverage Act” and allowing such entities to offer new non-insurance health options to their members. The bill provides that health coverage provided by certain entities is not insurance but then authorizes risks under such coverage to be reinsured. A farm bureau, a not-for-profit membership organization, or an agricultural cooperative association providing such health coverage pursuant would be required to annually file a signed, certified actuarial statement of plan reserves with OIR. We believe that this legislation is being advanced by the Foundation for Government Accountability. A lobbyist for the Florida Farm Bureau denied it was their bill and plans to request that the reference to “Farm Bureau” be removed from the title should the bill be heard.
7. Medicaid Managed Care: SB1950/HB7047
By Sen. Brodeur and Rep. Garrison
SB 1950 passed the Health and Human Services Appropriations subcommittee on February 16, by a vote of 11-0. The House introduced a package of tweaks to the Medicaid Managed Care program when it passed a committee bill on January 27 in the Finance & Facilities subcommittee and it received two committee references and is now HB7047. The House bill passed its first committee of reference on February 7, by a vote of 10-5 and should be heard on February 23, in Health and Human Services. HB7047 is similar to the Senate companion; however, one key difference is that it would repeal the dental carve out in current law. SB1950, the Senate companion, does not repeal the dental carve-out. Senate President Wilton Simpson comment last week in response to a question from the press corps in regard to repealing the dental carve out, that the Senate likes its version of the bill. Speaker Sprowls commented in response that the dental-carve out was not a deal-breaker on the bill.
SB1950 amends Part IV of ch. 409, F.S., relating to the SMMC program, and affects the
recurring competitive procurement of program contracts with Medicaid managed care plans and includes the following provisions:
· Requires provider service networks (PSNs) to be reimbursed on a prepaid basis.
· Authorizes the AHCA to select eligible managed care plans to provide services through a single statewide procurement and deletes the requirement that the AHCA conduct separate and simultaneous procurements for each Medicaid region.
· Authorizes the AHCA to award contracts to managed care plans on a regional or statewide basis.
· Outlines a new regional structure for plan selection under the MMA and LTC programs with a minimum and maximum number of plans designated for each region. The bill provides for eight regions named by letters (Regions A-H), rather than the 11 regions named by numbers (Regions 1-11) in current law.
· Requires the AHCA to award a contract to at least one PSN in each of the eight regions under the MMA program and under the LTC program.
· Amends the Achieved Savings Rebates (ASR) structure to change thresholds relating to profit-sharing for managed care plans.
· Requires managed care plans to include Florida cancer hospitals that meet specified federal criteria in their networks as essential providers.
· Revises MMA plan healthy behaviors program requirements to include tobacco cessation programs, rather than smoking cessation programs, and to clarify that substance abuse programs must include opioid abuse recovery.
· Authorizes an MMA child welfare specialty plan to serve a child in a permanent guardianship situation whose parents receiving payments through the Guardianship Assistance Program.
The bill provides an effective date of July 1, 2022.
8. Prescription Drugs Used in the Treatment of Schizophrenia for Medicaid Recipients SB 534/HB 885 by Sen. Harrell and Rep. McFarland
The Senate version was on the special order floor calendar for February 17 and passed the full Senate by a vote of 38-0. The House version passed its second of three committee on February 14, by a vote of 12-0. We expect the House version to be heard in Health and Human Services on February 23.
The bill creates an exception from step-therapy prior authorization requirements within the Florida Medicaid program for a drug product that is prescribed for the treatment of schizophrenia or schizotypal or delusional disorders or a medication of a similar drug class if prior authorization was previously granted for the prescribed drug and the medication was dispensed to the patient during the previous 12 months.
9. Managed Care Plan Performance SB 1258/HB 855
by Sen. Jones and Rep. Bartleman
The House and Senate versions of the bill are both ready for a floor vote as early as the week of February 28.
The bill statutorily requires managed care plans contracted with the Agency for Health Care Administration (AHCA) under the Statewide Medicaid Managed Care (SMMC) program to collect and annually report an expanded set of performance measures, including Healthcare Effectiveness Data and Information Set (HEDIS) measures, the federal Core Set of Children’s Health Care Quality measures, and the federal Core Set of Adult Health Care Quality performance measures, as specified by the AHCA.
Beginning in calendar year 2025, the bill requires each managed care plan to collect and report all of the Adult Core Set behavioral health measures, which are not currently required by statute to be reported. Beginning in calendar year 2026, the bill requires each managed care plan to stratify all performance measure data by recipient age, race, ethnicity, primary language, sex, and disability status
10. Out of Network Providers/Health Care Expenses HB1529/SB296/HB 1527
By Rep. Snyder and Sen. Garcia
HB1529 Applicability of Payments for Nonpreferred Provider Services passed the House Finance & Facilities subcommittee on February 16. The bill has no Senate companion. However, another set of bills entitled Health Care Expenses (SB296/HB1527) dealing with hospital charges had an amendment filed on it to add the substance of HB1529, which would have required health plans to accept any providers charges that were the same or less insurers average amount of in-network charges. Further, the bill would have required that an insurer count that payment toward the insured’s deductible and out of pocket maximum. Our coalition lobbied key Senators to hold up SB296 where the amendment was pending in the Health Policy committee. The bill was tabled in definitely.
DENTAL
1. Dental Care Services SB 1444/HB 997
by Sen. Brodeur and Rep. Bell
Both the House and Senate version have yet to be heard in committee.
This bill expands the list of Medicaid services provided by a mobile dental unit to add homeless shelters and group homes for adults with disabilities. It also adds homeless shelters, schools, Early Head Start programs, and the Special Supplement Nutrition Program for Women, Infants, and Children; for children’s dental services covered by Medicaid.
2. Dental Therapy SB 184
by Sen. Brandes
This bill has no House companion and seems unlikely to move.
The bill has all the same language as SB 1444 but adds the following; requiring the chair of the Board of Dentistry to appoint a Council on Dental Therapy within a specified timeframe, authorizes the board to require any person who applies to take the examination to practice dental therapy in this state to maintain medical malpractice insurance in a certain amount, requires the board to certify certain applicants for licensure as a dental therapist and requires the board to adopt certain rules relating to dental therapists
3. Medicaid Dental Carve Out: SB1950/HB7047
by Sen. Brodeur and Rep. Garrison
The House introduced a package of tweaks to the Medicaid Managed Care program when it passed a committee bill on January 27 in the Finance & Facilities subcommittee. Proposed Committee bill FFS1, which was approved and then introduced as HB7047, and would repeal the dental carve out. The Hose bill has one more committee, Health and Human Services, and should be on that agenda for February 23. SB1950, the Senate companion, does not repeal the dental carve-out. That bill has passed the Senate HHS Appropriations Subcommittee on February 16, by a vote of 11-0, and has one committee hearing remaining. See full write up on the bill under the Health category of this report for further detail. For the moment, the Senate is holding firm against repealing the dental carve out.
PROPERTY
1. Property Insurer Reimbursement SB 1058/HB 695
by Sen. Hutson and Rep. Stevenson
This bill is supported by OIR. The Senate version passed the full chamber on February 17, by a vote of 36-2 and the House version passed its last committee February 10, by a vote of 22-0. We expect the House to take up the Senate bill the week of February 28.
The bill authorizes the State Board of Administration (SBA) to provide Florida Hurricane Catastrophe Fund (Cat Fund) coverage to authorized insurers or Citizens Property Insurance Corporation (Citizens) for the policies of unsound insurers that Citizens or the authorized insurer assumes or otherwise provides coverage. The authorized insurer or Citizens may obtain Cat Fund coverage for such policies either through the authorized insurer’s or Citizens reimbursement contract with the Cat Fund, or by accepting an assignment of the unsound insurer’s contract with the Fund.
The bill defines “unsound insurer” to mean an insurer determined by the Office of Insurance Regulation to be in unsound condition as defined s. 624.80(2), F.S., or placed in receivership under ch. 631, F.S.
Under current law, these options for obtaining Cat Fund coverage are only available to Citizens and only apply to the policies of liquidated insurers.
2. Surplus Lines Tax on Flood Insurance Premiums HB 1149
by Rep. Giallombardo
The bill provides that premiums charged for surplus lines coverages for peril of flood are not subject to specified premium receipts tax. The bill has been referred to three house committees but has not yet been heard. There is no Senate companion measure.
3. Property and Citizens Property Insurance Corporation SB 1728/HB 1307
by Sen. Boyd and Rep. Gregory
The Senate version passed its second of three committees on February 16, by a vote of 9-1. We expect the House version to be heard next week, February 23, in House Commerce.
· Increases the citizens policyholder surcharge to:
- 15% of premium if citizens have fewer than 1 million policies.
- 20% if the citizens have between 1-1.5 million policies.
· Requires the citizens Executive Director to meet minimum experience levels.
· Increases the threshold a policyholder has to refuse a “take-out” offer to 20% greater than the renewed premium for comparable coverage. This applies to both personal and commercial lines.
· Removes the eligibility for policyholder removed through an assumption agreement to remain in citizens.
· Allows qualified surplus lines insurers to “take-out” citizens policies. Policies with replacement cost above $700,000 and a premium offer of 15% or less will no longer be eligible for citizens coverage. For policies with a replacement cost less than $700,000 remains eligible if it receives an offer of coverage from a surplus lines insurer.
· Requires underwriting and claims files to be confidential by assuming carriers.
· Makes technical changes to the citizens clearinghouse statute.
Contained in Senate Version Only (House bill is limited to Citizens changes)
· Requires roofers to include specific language on advertising about the insurance deductible and fraud.
· Allows insurers to use roof surface reimbursement schedules and roof sub-limits for personal lines.
- Policies with roof schedules can depreciate roofs only up to 4% unless more is actuarially justified.
- A roof reimbursement schedule can be included in the policy with a Notice of Change of Policy Terms.
- Policies with roof schedules or roof sub-limits must provide full replacement coverage for roofs less than 10 years old, total losses, and roof losses due to hurricanes.
Senate President Wilton Simpson has made several remarks in the last two weeks stating that if the Legislature doesn’t fix the roof problem, then they are letting the policyholders of Florida down. However, the House does not currently have a bill to address the roof issue. Speaker Sprowls stated this week that he wants to allow time for last year’s reforms to fully kick-in.
4. Domestic Surplus Lines Insurance SB 1402/HB 951
by Sen. Burgess and Rep. Gregory
The Senate version passed its final committee on February 9, by a vote of 20-0 and will be heard in the full senate on February 23. We expect the House version to be heard next week, February 23, in House Commerce.
· Creates a definition of a “Domestic surplus lines insurer”
· If a domestic insurer possesses a surplus of $15 million, they may after board approval and approval of OIR, be made eligible as domestic surplus lines insurer.
· The domestic surplus lines insurer is subject to all financial and solvency requirements imposed upon domestic admitted insurers.
· Surplus lines insurance policies issued by a domestic surplus lines insurer are exempt from all requirements relating to insurance rating and rating plans; policy forms; premiums charged to insureds, policy cancellation; nonrenewal; and renewal.
· Policies issued by the domestic surplus lines insurer are subject to taxes assessed upon surplus lines policies, but exempt from other taxes levied upon domestic and foreign admitted insurers.
· Policies are not subject to part II, III or V of chapter 631
5. Pet Insurance: Veterinary Telehealth SB 448/HB 723
by Sen. Brodeur and Rep. Buchanan
The House version has passed out of the chamber by a vote of 118-0, on February 10. The Senate version remains temporarily postposed in the Senate Regulated Industries committee, which theoretically is no longer meeting; however, in prior years, committees have met as late as week 8 or 9 so anything is possible in the last few weeks of session.
Current law defines a “veterinarian/client/patient relationship” (VCPR) as one in which a veterinarian has assumed responsibility for making medical judgments about the health of an animal and its need for medical treatment. Veterinarians are permitted to prescribe drugs in the course of veterinary practice; however, the veterinarian must be either personally acquainted with the keeping and caring of the animal and have recently seen the animal, or have made medically appropriate and timely visits to the premises where the animal is kept before prescribing drugs in the course of practice.
The use of electronic communications to facilitate patient health care (telemedicine) is not addressed in the practice act and is not specifically prohibited or authorized in Florida. However, medical doctors may practice telemedicine in Florida and may establish a patient relationship with a patient evaluation via telemedicine under certain circumstances.
· Establishes a framework for the practice of veterinary telemedicine.
· Limits a veterinarian’s ability to prescribe controlled substances while practicing telemedicine to situations where:
- The veterinarian has previously performed an in-person physical examination or made medically appropriate and timely visits to the premises where the animal is kept; or
- The veterinarian is treating a terminal patient transferred to the veterinarian for hospice care by a veterinarian who previously performed an in-person physical examination of the patient and such veterinarian has reviewed the patient's medical records.
· Specifies that only Florida licensed veterinarians may practice veterinary telemedicine, and grants the Board jurisdiction over the practice of veterinary telemedicine.
· Allows an animal control authority under the “indirect supervision” of a veterinarian to administer rabies vaccinations.
AUTO
1. PIP REPEAL SB 150/HB 1525
by Sen. Burgess and Rep. Grall
The Senate version passed its first of three committees on February 2, by a vote of 10-1. The next committee stop for the senate version is the Judiciary committee which is not scheduled to meet again, according to the bill sponsor, Sen. Burgess, who is the chair of that committee. However, in prior years, committees have met as late as week 8 or 9 so anything is possible in the last few weeks of session. The House version was heard in its first of two committees on February 7 and passed by a vote of 15-3. Last year’s PIP repeal bill was vetoed by the Governor due, in part, to an OIR commissioned study received after Session ended that showed last year’s bill resulted in an overall price increase in premiums of 13.3% for all coverages. The bill sponsor, Rep. Grall, attacked the OIR in committee over the rate study, accusing them of agency malpractice. This was likely in response to comments by Sen. Jeff Brandes, who said last week it would be “legislative malpractice” to consider near-identical legislation and not have any additional information on the fiscal impact.
HB 1525 was filed by Rep. Erin Grall (R) who is the Chair of the House Judiciary Committee. Grall announced this week that she is running for Senate with the support of Senate leadership. SB 150 was filed by Sen. Danny Burgess (R), who is Chair of the Senate Judiciary Committee.
The House and Senate PIP repeal bills pretty much line up – except for bad faith. The Senate bill contains the same bad faith language that was in the PIP repeal bill that passed last year. The Senate continues to push this language which is problematic for many insurers. The bad faith language in the Senate bill only applies to failure to settle auto claims and is found at lines 1771-2092.
The House PIP repeal bill does not contain any bad faith reform which was the House starting position last year, though they eventually went to the Senate bad faith position in the final bill.
The biggest change in the PIP bills this year is on medical payments: The bill that passed last year automatically included $10,000 of med pay benefits unless a signed rejection was received (i.e., opt out).
This year, the House and Senate bills flip their med pay position and only require a mandatory offer of med pay (i.e., opt in). Opt in med pay has historically been opposed by the doctors, hospitals, and health insurers as a cost shift to them.
A summary of the high points of this year’s PIP repeal bill in the House and Senate follows:
· Repeals PIP and replace with mandatory BI coverage of $25K/$50k and $5k death benefit. PD coverage remains at $10k – contained in both House and Senate bills.
· This is the same as the bill that passed last year.
· Requires opt-in med: med pay offer of $5k and $10k (can offer any med pay amount over $5k); $0 deductible for med pay ($500 max deductible) – contained in both House and Senate bills.
· This is basically the opposite of the bill that passed last year which has opt-out med pay.
· Contains a limited “no pay no play” provision which requires a mandatory $10k set-off for recovery by an uninsured driver – – contained in both House and Senate bills.
· This is the same as the bill that passed last year.
· Contains bad faith reform (though problematic for many insurers) – only in Senate bill.
2. Public Records of Crash Reports and Traffic Citations SB 1614/HB 1121
by Sen. Harrell and Rep. Brannan
The Senate version passed the Senate Governmental Oversight and Accountability committee on February 10, by a vote of 6-0. The House version was heard in its second committee stop on February 8 and passed by a vote of 16-0. Both bills have another committee stop remaining prior to heading to the floor.
· Written reports of crashes will be exempt under s. 119.07(1).
· Expands who can receive the crash report to the Department of Health and any person or entity acting on behalf of a federal, state, or local governmental agency carrying out its functions.
· Creates stricter and clearer guidelines for holding a crash report.
· Exempts “driver information” on traffic citations from public records, creates a sunset of October 2, 2027.
- Date of birth
- Driver license number
- Address excluding the zip code
- Trailer tag number
The bill also provides legislative intent language that both traffic citation and crash report information should not reveal personal information.
3. Driver History Records SB 1202
by Sen. Brodeur
This bill has no House companion which makes it unlikely to pass, but we will be monitoring the text of this language to see if it pops up in a larger House bill. The bill excludes speeding tickets from a driver’s history to be released to a 3rd party. The bill has not yet been heard.
GENERAL INSURANCE
1. INSURANCE OMNIBUS SB 468/HB 503
by Sen. Perry and Rep. Gregory
HB 503 by Representative Gregory passed its first of two committee stops on January 13, with a vote of 15-0. The House version should be heard in House Commerce on February 23. The Senate version passed out of the Senate 37-0. The bill has several components to it including the following:
· Directs the Florida Hurricane Catastrophe Fund to provide reimbursement for a loss under collateral protection insurance (also known as lender-placed or force-placed insurance) when the coverage amount differs from the coverage amount under the lapsed policy if the homeowner received notice of the collateral protection insurance coverage amount, or the homeowner requested a different coverage amount from the collateral protection insurer.
· Provides that current requirements under the Workers’ Compensation Law for annual, physical onsite payroll audits of employers in the construction class will only apply when the estimated annual premium is $10,000 or more.
· Authorizes associations, trusts, and pools formed to provide self-insurance for public entities to use communications media technology to establish quorum and conduct public business.
· Provides that an all-lines adjuster who is appointed and employed by an insurer’s affiliate may serve as a company employee adjuster for the purpose of adjusting claims.
· Allows a residential property insurer’s rate filing to estimate projected hurricane losses by using a weighted or straight average of two or more models approved by the Florida Commission on Hurricane Loss Projection Methodology.
· Authorizes an insurer to file a personal lines residential property insurance rating plan that provides premium discounts, credits, and other rate differentials based on windstorm construction standards developed by an independent, not-for-profit, scientific research organization.
· Limits the requirement that an insurer provide a policyholder who has an automatic bank withdrawal agreement with the insurer with 15 days advance written notice of any increase in policy premiums. Instead, notice will only be required for premium increases that will result in an increase in the automatic withdrawal of more than $10 from the previous withdrawal amount.
· Provides Citizens Property Insurance Corporation with discretion to offer wind-only policies to condominium associations when 50 percent or more of their units are rented more than eight times per year for a period of less than 30 days.
· Eliminates a requirement that an insurer that provides electronic delivery of the insurance policy to a policyholder (or the person entitled to delivery) to also provide within the electronic transmission notice of the policyholder’s right to receive the policy via United States mail. The bill also eliminates a requirement that the insurer provide a paper copy of the policy to the insured upon his or her request.
· Allows a policyholder to select a hurricane deductible greater than 10 percent, reject windstorm coverage, or reject contents coverage under a residential property insurance policy by typing the existing exclusionary statement language, instead of handwriting it.
· Provides that s. 627.7152, F.S., governing assignment agreements, applies to instruments that assign or transfer post-loss benefits to a service provider that provides scopes of service or provides inspection services.
· Provides that the term “assignment agreement” does not include an instrument by which a licensed public adjuster is compensated for public adjuster services.
· Requires that an assignee provide the notice of intent to initiate litigation to the name and mailing address designated by the insurer in the policy forms if notice is sent by certified mail, return receipt requested, or to the e-mail address designated by the insurer in the policy forms if notice is sent by electronic delivery.
· Requires that an automobile policy that does not provide coverage for bodily injury liability and property damage liability include notice accompanying the declarations page that the policy does not provide such coverages and does not comply with any financial responsibility laws. Such policies generally cover antique motor vehicles.
· Exempts licensed personal lines and general lines agents from salesperson licensing requirements otherwise required to solicit, negotiate, advertise, or sell home warranty contracts, and service agreement contracts.
Senate Version: Removed the section of the bill related to motor vehicle service warranty agreement licensure. We expect the House to do the same when it’s heard in Commerce.
2. Information Submitted by Insurers/Public Record Exemption SB 7016/HB 7043
by Senate Banking and Insurance and House Government Operations
The Senate version passed the chamber 35-0 on January 19. The House version was filed January 28 as a committee bill. The House bill is scheduled to be heard on February 21 in its last committee, State Affairs.
Continues the public records exemption for certain information submitted to the Department of Financial Services (DFS) related to an insurer’s anti-fraud plan or annual fraud report pursuant to s. 626.9891, F.S., by removing the October 2, 2022, repeal date.
Currently, s. 626.9891, F.S., provides that certain information submitted to DFS related to an insurer’s anti-fraud plan or annual fraud report is exempt from s. 119.07(1), F.S., and article I, section 24 of the Florida Constitution.
Pursuant to the Open Government Sunset Review (OGSR), the public records exemption is scheduled to repeal October 2, 2022, unless reenacted by the Legislature. Since the bill continues the exemption and does not expand the scope of the public records exemption, the bill requires a majority vote of each chamber for passage.
3. DFS Fraud Prevention Package SB 1292/HB 749
by Sen. Gruters and Rep. Clemons
This is one of the two priority bills that Chief Financial Officer Jimmy Patronis has filed. The Senate version passed its second of three committees on February 2, by a vote of 9-0. The House bill passed its second of three committees on February 15, by a vote of 13-0. The bill clarifies/tweaks a couple of difference areas.
· Negative Option Billing: provides that signing up for a service contract and cancelling a service contract shall be done in the same manner.
· Increases fines for unlicensed public adjuster practices during a state of emergency declared by executive order of the Governor.
· Increases fines for unauthorized transaction of insurance during a state of emergency declared by executive order of the Governor.
· Mirror fraud reporting requirements from the arson investigation statute (633.126) in the insurance fraud reporting statute (626.989) to enhance the Division of Investigative and Forensic Services investigation capabilities, while maintaining the current protections during an investigation.
· Clarifying investigations are confidential during arson fraud investigations.
· Provides the Department with authority to impose fines, should the insurer fail to comply with arson investigation reporting requirements.
· Reduce fraudulent warranty advertisements. The revisions should help a consumer to know they are being solicited for a warranty insurance product from a company approved by the Florida Office of Insurance Regulation, by a salesperson who is licensed by the Florida Department of Financial Services. We are working to clean this section up and make sure no unintended consequences happen.
· Clarify the language in Section 775.15 (11) F.S from “and” to “or” to clarify that charges under 440.105 F.S. and 817.234 F.S. do not have be filed together for the five-year statute of limitation to apply.
· Mandatory restitution for insurers: further incentive for insurers to invest in fraud prevention, detection and other SIU activities.
TORT REFORM
1. Contingency Risk Multipliers SB 1910
by Sen. Gruters
This bill is likely dead for this session. No House companion has been filed and SB 1910 has not yet been heard.
In awarding attorney fees, a strong presumption is created that a lodestar fee is sufficient and reasonable. Such presumption may be rebutted only in a rare and exceptional circumstance with evidence that competent counsel could not be retained in a reasonable manner.
PRIVACY & CORPORATE ISSUES
1. CONSUMER DATA PRIVACY SB 1864/HB 9
by Sen. Bradley and Rep. McFarland
HB 9 by Representative McFarland has been referred to two committees - Commerce and Judiciary. The House bill was heard on February 8 and passed by a vote of 23-0. Comments back and forth between industry groups testifying in opposition to the bill and the Committee Chair and members grew testy. It was clear the House was committed to getting the bill out of committee despite the broad scope and potential drafting flaws. The Senate version has been referred to three committees and has yet to be heard. 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 (House only) 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.
The House will stand firm demanding a private cause of action in the bill or no bill will pass. The Senate does not want a private cause of action.
2. TELEPHONE SOLICITATION SB1564/HB1095
By Sen. Hutson and Rep. Beltran
The House version has one more committee, while the Senate version is on the special order calendar for February 23. We are working with the House sponsor to continue to cleanup language but he seems unlikely to accept some of our suggestions.
This bill is a glitch bill to correct provisions of last year’s bill with the goal of bringing Florida law closer to the federal provisions, especially in regard to the definition of automated system and parameters for when businesses can contact their existing customers. We are working in concert with allies including Associated Industries of Florida and the automobile dealers on the fix.
3. MERGERS AND ACQUISITIONS REPORTING SB 1112/HB 705
by Sen. Brodeur and Rep. Grall
These bills have been referred to three committees in the House and Senate. The House version was heard in its second of three committees on February 9 but got Temporarily postponed in House Commerce on February 17. The Senate version has yet to be heard.
Mergers and Acquisitions that trigger a Hart-Scott-Rodino filing with the Department of Justice must provide a notice to the state Attorney General when the notice is filed with the Federal Government.
OTHER (Non-insurance)
1. CONSTRUCTION DEFECTS SB 736/HB 583
by Sen. Hutson and Rep. Yarborough
The Senate version passed out of the chamber on February 17, by a vote of 26-13. The House version was heard in its second of three committee on February 8, and passed by a vote of 11-5. We expect the House version to heard either on February 21 or 23 in House Judiciary. The House and Senate versions are getting closer with their language, reducing the time period for commencement of an action for latent defects from 10 years to 7 years running from discovery of the defect. We will have to see what the House bill does in its final committee.
Summary of House Bill:
· Revises the four-year time period for the statute of limitations in 95.11, F.S., for claims based on construction defects by providing that the time-period begins to run 45 days after the date of:
- Completion of the project, which means the date of issuance of the certificate of occupancy or the completion of the building permit for the project; or
- Abandonment of the project if the project is not completed.
· If an action involves a latent defect, the action must be commenced within 7 years.
· If an action alleges a material violation, the action must be commenced within 15 years.
· The person alleging the material violation must show by clear and convincing evidence that the contractor had actual knowledge of the violation at the time of construction.
Note: The House bill does not amend chapter 558.
Summary of Senate Bill:
· Revises the four-year time period for the statute of limitations in 95.11, F.S., for claims based on construction defects by providing that the time-period begins to run 45 days after the date of:
- Completion of the project, which means the date of issuance of the certificate of occupancy or the completion of the building permit for the project; or
- Abandonment of the project if the project is not completed.
· If an action involves a latent defect, the action must be commenced within 7 years.
· If an action alleges a material violation, the action must be commenced within 10 years.
· The person alleging the material violation must show by clear and convincing evidence that the contractor had actual knowledge of the violation at the time of construction.
· Expands on the existing “right to cure procedures” in chapter 558, F.S. These procedures establish an alternative dispute resolution process requiring a claimant and a contractor or similar person to attempt to resolve a construction defect claim before proceeding to litigation. Under the revised procedures, a claimant must provide an inspection report with a notice of a construction defect claim. Additionally in rejecting a settlement offer, the claimant must detail the reasons for rejecting the offer.
· The contractor must then be given an opportunity to make a supplemental offer. The bill also provides for a 5-year repose period for one-family, two-family, or three-family residences not exceeding two habitable stories above ground and their accessory structures. For all other structures, the bill retains the 10-year repose period in current law.
2. Agritourism SB 1186/HB 717
by Sen. Albritton and Rep. Tomkow
The House version passed its last committee on February 8. The Senate version passed its second of three committees on February 3.
Clarifies that an agriculture classification may not be denied because the building is being used to conduct agritourism activities. Buildings, structures, and facilities must be assessed under the general valuation statute 193.011 and not under the special agricultural lands classification 193.461.
3. Discharge and use of Firefighting Foam SB 1666/HB 1257
by Sen. Polsky and Rep. Casello
SB 1666 passed the Environment and Natural Resources Committee on January 24. The House bill has not yet been heard.
Creates a new section of law defining “Class B firefighting foam”, “PFAS chemicals” and “Testing”.
Beginning January 1, 2023 restricts discharge of Class B fire fighting foam and PFAS to fire responses
The bill does not restrict the sale, manufacturing or distribution of Class B firefighting foam with intentionally added PFAS or prevent the use of other nonfluorinated foams.
4. Per- and Polyfluoroalkyl Substances Task Force SB 7012/HB 1151 by Senate Environment and Natural Resources and Rep. Sirois
The Senate version cleared its second committee stop on February 2. The House version has yet to be heard in committee.
Creates the Per- and Polyfluoroalkyl Substances (PFAS) Task Force, to be known as the PFAS Task Force, within the Department of Environmental Protection (DEP) to develop recommendations on:
· Enforceable regulatory standards for PFAS in drinking water, groundwater, and soil.
· A mechanism for the identification and cleanup of contaminated areas.
· How to address liability for contamination and financial responsibility for cleanup.
· Appropriate methods and technologies, considering cost, for cleanup and treatment of PFAS contamination.
· Funding sources and mechanisms for prioritizing the distribution of funds for cleanup and remediation of PFAS contamination.
· Methods to manage waste containing PFAS to prevent possible release or discharge into the environment that could cause contamination of drinking water, groundwater, and soil.
· Appropriate testing for and monitoring of PFAS in drinking water, groundwater, and soil to protect the public health and welfare.
· Methods to eliminate workplace exposure in the manufacturing industry.
The bill provides for the membership and operation of the task force. The bill requires the task force to convene no later than October 1, 2022, and to submit an annual report to the Governor and the Legislature, beginning October 1, 2023.
5. Individual Retirement Accounts SB 968/HB 649
by Sen. Polsky and Rep. Driskell
The Senate version has passed its last committee and is on the Senate special order calendar for February 23. The House version was heard in its second of three stops on February 16, by a vote of 15-0.
The bill clarifies that any interest in an individual retirement account (IRA) or individual retirement annuity received in a transfer incident to divorce remains exempt from creditor claims after the transfer is complete. As the bill clarifies, but does not modify, existing law or practice, the bill is remedial in nature and applies retroactively to all transfers made incident to divorce.
6. Financial Literacy: High School Graduation Requirements in Personal Finance
SB 1054/HB 1115 by Sen. Hutson and Rep. Busatta Cabrera
The Senate version was heard in its last committee and is on the Senate special order calendar for February 23. The House version was heard in its second of three committees on February 16 and passed by a vote of 14-0.
Creates the Dorothy L. Hukill Financial Literacy Act (she was a former state representative and state senator)
· Starting in the 2022-2023 school year all incoming 9th graders must earn one half credit in personal financial literacy:
- The course must include types of bank accounts, balancing checkbooks, principles of money management, completing a loan application, computing federal income tax, and more money management disciplines.
Current law requires schools to offer the optional half-credit class during high school.
7. Guardianship CB 1032/HB 845
by Sen. Burgess and Rep. Koster
The Senate version was heard in its second of three committees on February. The House version has yet to be heard.
The bill is based on the model Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act developed by the Uniform Law Commission. The Uniform act, or a slight variation of the act, has been adopted in 46 states.
The focus of the bill, like the model act, is limited to resolving guardianship issues that occur when multiple state jurisdictions are involved, when complexities arise because a guardianship is transferred from one state to another, and when guardianships or orders in one state are sought to be recognized in another state. Accordingly, the bill establishes criteria for courts to use in determining which state’s courts are the most appropriate forum to assert jurisdiction over and resolve a guardianship issue.
The bill also revises three existing statutes governing orders not to resuscitate. In general terms, the revisions permit a guardian to sign an order not to resuscitate, without additional court approval, when a preexisting order was approved by a court in an initial or annual guardianship plan and the order has not been suspended by a court. Additionally, a guardian is authorized to consent to an order not to resuscitate being placed in a ward’s chart by a physician if the hospital ethics committee has met and agrees with the entry and the ward is in a hospital and exigent circumstances exist which do not allow enough time for the guardian to seek additional court approval. Within 72 hours after the signing the order or consenting to the order, the guardian must file notice of the action with the court and provide accompanying documentation that supports the decision or a copy of the court’s order after the preliminary hearing.
8. Soil and Groundwater Contamination SB 1418/HB 1475
by Sen. Albritton and Rep. McClure
The Senate version has been temporarily postponed twice in its first committee. The House version passed its second of three committees on February 14, by a vote of 14-0. The bill:
· Requires the Department of Environmental Protection (DEP) to adopt by rule statewide cleanup target levels (CTLs) for perfluoroalkyl and polyfluoroalkyl substances (PFAS) in soils and groundwater, which do not take effect until ratified by the Legislature.
· Provides a limitation of liability, until DEP’s rules have been ratified for a particular PFAS constituent, from actions brought by local or state government entities to compel or enjoin site rehabilitation, require payment of site rehabilitation costs, or require payment of fines or penalties regarding rehabilitation based on the presence of that particular PFAS constituent.
· Tolls any statute of limitations that would bar a state or local government entity from pursuing relief under its existing authority, from the effective date of the act until site rehabilitation is complete or the Legislature ratifies the CTLs.
· Requires the Office of Program Policy Analysis and Government Accountability to conduct an analysis of programs in other states for the assessment and cleanup of soils and groundwater contamination, and submit a report of its findings and recommendations to the Governor and Legislature by January 1, 2023.
9. Public Financing of Potentially At-Risk Structure/Infrastructure SB 1434/HB 1077
by Sen. Rodriguez (A) and Rep. Hunschofsky
The Senate version is scheduled to heard in its second of three committees on February 22. The House version is scheduled to be heard in its last committee, State Affairs, on February 21.
The bill expands the requirement for public entities to conduct a Sea Level Impact Projection (SLIP) study before commencing construction of certain state-financed coastal structures to apply the requirement to certain structures that are within any area that is at risk due to sea level rise, not just coastal areas. The structures subject to this requirement are any “potentially at-risk structures or infrastructure,” which are defined as any major structures or infrastructure, including all infrastructure critical to public health, life, or safety, that are within an area at risk due to sea level rise.
