On Tuesday, March 5, 2019, Representative Byrd filed Florida House Bill 1399 (HB1399). The House of Representatives website reflects that there are no "related bills" filed at this time. In Florida, passage of a law depends upon there being both a House and a Senate bill. Though this bill is not "related to" Senate Bill 1636 (SB1636)(discussed last week in Senate Bill 1636 Filed), either bill could potentially be amended to conform with the other, or some compromise amendment to Florida workers' compensation could be substituted for the current provisions of both of these bills.
HB1399 amends the definition of "specificity" in section 440.02(40), Fla. Stat. This would require:
"for each requested benefit, the specific amount of each requested benefit, the calculation used for computing the specific amount of each requested benefit."
That is similar to the language in SB1636. It is also consistent with other amendments in the bill, regarding the filing of a petition for benefits.
HB1399 adds language to the restriction on "provider eligibility" to provide medical care in section 440.13(3) Fla. Stat. That currently requires prior authorization from "the carrier." The amendment would add:
"However, a carrier's authorization of a physician that includes the provision of palliative care also authorizes the provision of such care by health care providers affiliated with the authorized physician."
Furthermore, the current exception ("this paragraph does not apply to emergency care") is clarified:
"2. The requirements in this paragraph for a health care provider to receive authorization before providing treatment do not apply to emergency care."
HB 1399 adds a "deemed" authorization provision in section 440.13(3)(c)2. Fla. Stat. for:
"Testing or treatment under an authorized physician's referral for diagnostic testing or palliative care, including the provision of prescribed medical supplies or durable medical equipment with a reimbursable value of less than $500"
This care would be "deemed authorized," but would have to also "be reported to the carrier."
HB1399 makes various changes to section 440.13, Fla. Stat. SB1636 does not change that section.
Currently, section 440.13(3)(d) Fla. Stat. requires a carrier to "respond" to a request for care from an authorized provider within three business days. HB1399 would remove the "respond" requirement and instead require the carrier to "authorize or deny . . . or inform the health care provider of material deficiencies that prevent authorization or denial" within that three business day period. A similar change ("authorize," "deny," or "inform . . . of deficiencies") would be added to section 440.13(3)(i) Fla. Stat. affording 10 days carriers have to respond to provider requests for authorization for services or tests which cost more than $1,000.00.
HB1399 alters the process of the Three Member Panel, which is responsible for medical fee schedules. The amendments to section 440.13(12) Fla. Stat. would require the Panel to annually "adopt" rather than to "determine" the schedules for medical reimbursement. The bill deletes a section directed at "maximum reimbursement allowances for inpatient hospital care." It directs that the "allowances adopted by the panel must be based upon the reimbursement methodologies provided in this subsection." But, it also empowers the Panel to:
"adopt a reimbursement methodology for compensable medical care for which a reimbursement methodology is not provided in this subsection. Reimbursements shall be made based upon adopted schedules of maximum reimbursement allowances."
Specifically as to outpatient surgery, reimbursement "shall be 160 percent of the fee or rate established by the Medicare outpatient prospective payment system." If a procedure is not listed in that system, then the reimbursement "shall be 60 percent of the statewide average charge for that service derived from the division's database," subject to some parameters included there.
Specifically as to "nonscheduled hospital outpatient care" reimbursement "shall be 200 percent of the fee or rate established by" Medicare. In the event the procedure is not listed, then reimbursement "shall be 75 percent of the statewide average charge for those services derived from the division's database."
As to physician care:
maximum reimbursement for a physician licensed under chapter 458 or chapter 459 shall be at 110 percent of the reimbursement allowed by Medicare." However, for surgical procedures performed by those physcians it "shall be at 140 percent" of the Medicare reimbursement.
Inpatient hospital care would be limited to "a schedule of per diem rates, subject to a stop-loss amount." In general terms, "stop-loss" means a cap or ceiling on the total amount that would be payable. That schedule would be approved by the Panel and "used in conjunction with a precertification manual as determined by the department." This precertification manual might or might not be similar to a treatment guideline (see IMR in Florida (December 2018), IMR and Due Process (December 2018), and Louisiana's Medical Claim Process Upheld)(December 2018).
HB1399 removes the 104-week limitation on temporary total and temporary partial disability benefits. Similarly to SB1636, the House Bill also likewise adds the modifier "overall" to the requirement of maximum medical improvement in section 440.15(2) and (3) Fla. Stat. Also similar to SB1636, a new section 440.15(13) is added that limits temporary benefits of all types to 260 total weeks. Unlike the Senate Bill, the House Bill contains exception to that in section 440.15(3)(d)3 Fla. Stat. This provides an additional 26 weeks of temporary benefit entitlement if an employee "has not reached overall maximum medical improvement.
HB1399 also adds a new section 440.1915 Fla. Stat., that requires attorneys to include a disclosure statement regarding attorney fees. That disclosure must be signed by the injured worker "before engaging an attorney or other representative." This is very similar to the proposal for a new section 440.1915 in SB1636. This provision would preclude the proceeding "with a petition for benefits" until this fee acknowledgment was signed.
HB 1399 contains specificity requirements regarding petitions for benefits, significantly similar to SB1636. This includes a presumption that the injured workers' average weekly wage (AWW) calculated by the employer carrier is correct. A claim for changing that AWW would have to include "The specific amount of compensation claimed and the methodology used to calculate the average weekly wage."
There are amendments in HB1399 regarding specificity. These do not mirror the changes proposed in SB1636. The Senate Bill has clarifying language specifically recognizing that a motion may be filed to seek dismissal of an insufficiently specific petition. The House Bill does not include that particular language. Each requires the pleading of a "specific date of maximum medical improvement" if entitlement to permanent benefits is asserted. Each would require attachment to the petition of both the attestation acknowledging attorney fee disclosure and compliance with "good faith."
HB1399 includes requirements related to a "good faith effort to resolve the dispute." Each bill affords the Judge of Compensation Claims "independent discretion" to determine whether a good faith effort was made and to dismiss a petition upon finding insufficient effort. The Senate Bill specifically includes a provision allowing the Judge to also impose sanctions in that event, including attorney fees. The House Bill does not.
The House Bill amends section 440.345, Fla. Stat., which requires carriers to report attorney fees. This requirement would mandate that the fee expenditures be distinct as to:
"the total number of attorney hours spent on services related to the defense of petitions, and the total amount of attorney fees paid for services unrelated to the defense of petitions."
HB1399 does not include amendments to section 440.20 Fla. Stat., section 440.25 Fla. Stat., and section 440.34 Fla. Stat. as are included in the Senate Bill. It does, however, add a new section 440.61 Fla. Stat. This would establish authority for the development of "performance measures and a rating system" regarding "insurance companies licensed to write workers' compensation insurance." This also affords some flexibility to carriers in setting rates, within certain parameters, that are not consistent with (instead a "deviation" or a "departure" from) rate filings submitted by a "rating organization" to which that carrier belongs.
Thus, there are similarities between portions of the two bills. however, there are significant differences. Neither bill yet has any "staff analysis" available as to the import of either bill. And, as of yet, neither has been referred to a committee. The process is beginning in Tallahassee. Today is the first day of the 2019 session. Discussion of the concepts and ideas in these two bills will be interesting to watch in the days and weeks to come. The session lasts for 60 days, and thus by early May the potential of these bills should be clearer to us all.
