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Session Dispatch    By Tim Meenan, NAIFA-Florida Lobbyist Week 4
The 2021 regular Florida Legislative Session kicked off on Tuesday, March 2nd. COVID 19 has had a significant impact on the state budget. The legislature is focused on addressing the estimated nearly $3 billion dollar budget shortfall. Despite this shortfall, the Governor rolled out his budget at the end of January at a record level of $96.6 billion. His proposal would be $4.3 billion more than the current year’s budget of which DeSantis identified $2.6 billion of the increase being related to Covid-19 response or impacts of the pandemic.  Governor DeSantis announced his plans to utilize $4.1 billion of Federal Stimulus funds of which $1.4 billion is recommended during this fiscal year. This money in addition to the estimated $1 billion in tax revenue to be received from the House Speaker and Senate President’s deal reached last week which creates a plan to collect sales tax for online purchases by out-of-state retailers, and will significantly ease the financial burden originally anticipated when session kicked off. The House and Senate both rolled out their budgets this week to little fan fair minus some discrepancies in the areas of affordable housing and the department of corrections. In the HHS budget, both chambers have agreed to draw down $200 million in stimulus funds to cover maternal care for 1 year postpartum in the Medicaid program. The legislature continues moving right along with addressing COVID-19 liability for business entities and COVID-19 liability for health care providers. In addition to addressing COVID-19 related items, the state also has a number of bills focused on auto insurance (PIP), property insurance, health insurance, telehealth, consumer data privacy and a ban on state contracts and investments with tech companies hosting cloud servers. 
 Below is a summary of the legislation of interest that we are tracking in the 2021 session:2021 Florida Session Update  WEEK 4
LIFE AND Health 1.     FLAHIGA SB 1470/HB 797 HB 797 by Representative Robinson passed its final committee in House Commerce on March 16th and will be up next on the House Floor. 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 passed it second committee this week in Senate Appropriations Subcommittee on Agriculture, Environment, and General Government and will be up next in Senate Appropriations. 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 passed 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. An amendment was adopted striking the change to the definition of the term “maximum allowable cost.” Authorizes OIR to require health insurers to cancel contracts entered into with PBMs if fees were deemed unreasonable. The bill has 2 more committee stops.    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. HB 247 by Representative Fabricio passed the House Professions Subcommittee with a strike-all limiting the bill to loosing restrictions on prescribing controlled substances. 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 and passed its first of three committees last week in the Senate Health Policy Committee. An amendment was adopted to allow peer-to-peer reviews to be conducted in consultation with a Florida licensed physician with authority over patient. The bill will be up next in Senate Appropriations Subcommittee on Health and Human Services. 6.     LOSS RUN (OMNIBUS) SB 742/HB 815 HB 815 by Gregory is an Omnibus insurance bill that passed its second of three committees in the House State Administration and Technology Appropriations subcommittee this week and will be up next in House Commerce. 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 in week 2 in the Senate Banking and Insurance Committee and will be up next in Senate Judiciary on March 29th. 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 was heard in its first of three committee stops the Senate Banking and Insurance committee this week and goes next in Senate Appropriations Subcommittee on Health and Human Services.  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 the last of its three committee stops this week and is now on the calendar. 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 its second of three committees this week in Senate Appropriations Subcommittee on Agriculture, Environment and General Government. The same amendment was adopted, so bills are identical. The bill will be up next in Senate Appropriations. 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 1552 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. PROPERTY1.     RESIDENTIAL PROPERTY INSURANCE/CONTINGENCY RISK MULTIPLIER SB 76/HB 305 SB 76 by Senator Boyd passed the third committee in Senate Rules yesterday with a strike-all from Senator Boyd. The bill heads next to the Senate floor.  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 eliminates the attorney fee multiplier unless it is a rare and exceptional case.  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.

Additionally, the bill allows an insurer to offer a state value sublimit on roof coverage. 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. Other provisions in the bill include:·        Allowing an insurer to require mediation as a 1st party claimant or a 3rd party assignee.·        Creating a “Texas” style 1st party attorney fee reform.·        Requiring the consolidation of multiple residential actions involving the same property.·        Modifiying the AOB law to conform with the new “Texas” attorney fee model.·        Requesting the Florida Supreme Court to require plaintiff and defense lawyers to disclose their attorneys fees. The House version of this bill, HB 305 by Representative Rommel, passed its first of three committees, the House Insurance & Banking Subcommittee this week. The bill makes several changes including the following: ·        Residential Property Insurance Claims for Roof Damage – The bill establishes that a contractor or unlicensed person acting on behalf of the contractor may not solicit or incentivize the filing of a roof damage insurance claim by a residential property owner or interpret policy provisions. It also establishes that a public adjuster, a public adjuster apprentice, or unlicensed persons acting on their behalf may not incentivize the filing of a roof damage insurance claim by a residential property insurance owner.

·        Clarifies that OIR has the authority to examine MGAs, including affiliates of insurers, as it examines insurers, even if the MGA represents a single domestic insurer. It requires that each insurer paying an affiliate produce information about fees paid to the affiliate upon request by OIR. It also requires that all MGAs execute contracts with the insurers they do business with even if they are affiliates of the insurers.·        Establishes that each insurer or insurer group doing business in Florida shall file specific data regarding litigation of personal and commercial residential property insurance claims on a quarterly basis.·        The bill makes several changes to the operations of, and requirements for, Citizens, the state-run property insurer: 

  • Revising the eligibility for residential property owners to obtain coverage from Citizens so that they are not eligible for Citizens’ coverage if they can obtain coverage from private insurers that is less than 20 percent greater than the premium for comparable coverage from Citizens 
  • Establishing that if Citizens does not buy reinsurance to cover its projected 100-year probable maximum loss, it must still include the cost of such reinsurance in its rate calculations.
  • Establishing that no employees of Citizens may receive salaries in excess of 150 percent of the salary received by the head of OIR, with certain exceptions.

·        The bill changes the notice of claim deadlines in the Insurance Code so that notice of any property insurance claim must be provided to a property insurer within two years of the date of loss.·        The bill creates new statutory requirements for residential or commercial property suits that are not brought by an assignee, including a ten-day presuit notice and demand, after a determination of coverage, before bringing suit against an insurer. An insurer served with this notice must respond in writing within ten days by either making a settlement offer or requiring participation in an appraisal or alternative dispute resolution proceeding as provided for in the policy.

4.     CITIZENS PROPERTY INSURANCE SB 1574SB 1574 by Senator Brandes passed its first of three committees, the Senate Banking and Insurance Committee, on March 16th and will be up next in Senate Appropriations Subcommittee on Agriculture, Environment, and General Government. The bill makes several changes to the statutes governing Citizens including:·        Requiring reasonable agent commission for policies placed in Citizens not to exceed the average of commissions paid in the preceding year by the 20 admitted insurers writing the greatest market share of property insurance in Florida. Given the recent Citizens Property Insurance Board discussion regarding the concept of removing all agent commissions to advance depopulation goals, Senator Brandes developed this language in response.·        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.·        Revising the method for determining the amounts of potential surcharges to be levied against policyholders; It has been a long-held belief by agent groups that commission levels should not be inserted into the statute in any context for various reasons, including the fact that what goes up can also go down. These groups are lobbying Citizens to not take any action to reduce agent commissions. There is no House companion for this bill.