My Heart
For those of our readers who I speak to regularly about a variety of issues, or for that matter, just to share a smile, last week was particularly busy. Thank you to all of you who called to see if I was ok…many expressing worry that the march on Tallahassee would get out of control and I would be in the middle of it. I was in the middle of it and I was inspired and moved to tears throughout the day. Below are some of the pictures of the rally taken by our Dylan Farley and fried Shawn Foster. I tried to put my feelings on paper but then read this: Jack Levine on the Parkland Massacre and much of what many are feeling is captured here. The author is a Democrat and I am a Republican and Jack and I will have coffee to see how we can work together. Hope you will do the same with someone “across the aisle” as we say in the Capitol. Blessings to all of you for a good and productive week.
Bill Watch
Recap of Week Seven and Preview of Week Eight
With ten days of the scheduled Florida legislative session left, Assignment of Benefits reform, elimination of Personal Injury Protection auto insurance, and Workers’ Compensation insurance reform are all looking increasingly doubtful, to put it optimistically.
There was no discussion of substantive policy issues outside of education and opioid abuse from last Tuesday forward because of visits by the Parkland students and others advocating for gun control and greater school safety. The Governor responded with a $500 million proposal that includes raising the age from 18 to 21 to buy long guns (rifles) and to put at least one armed resource officer in every public school in the state. It’s significant that the Governor is willing to give up some tax incentives to do it.
House and Senate leaders outlined their own proposals, which likewise include raising the age to 21 to purchase long guns and a measure that would allow teachers to carry concealed firearms in the classroom, under extensive training and direction of local law enforcement. A similar price tag of between $400 million to $500 million was mentioned by House Speaker Richard Corcoran.
The Senate has session tomorrow morning, then begins an arduous 7-hour Appropriations Committee meeting with 43 bills on the agenda as of this writing. The House has various committees today and tomorrow, then begins session on Wednesday. With the exception of a short House Rules & Policy Committee meeting this Friday afternoon, it will be nothing but full sessions for both chambers from this Wednesday through the scheduled close of the session on the following Friday, March 9.
By now, conference committees are usually well on their way but as of this writing, neither chamber has even named the conferees. These are the handpicked members of the House and Senate that serve as a negotiating committee to bridge the differences between each chamber’s $87+ billion state budget for the new fiscal year that begins on July 1. House Speaker Richard Corcoran last week accused Senate leaders of “stonewalling” on budget negotiations and acting like “kindergartners.” Senate President Negron replied that all is well and in the capable hands of professional staff – whom he noted have been around longer than the elected lawmakers. When they do start to talk, they’ll have $167 million less with which to negotiate. The state revenue estimating conference this past Friday revised an early February estimate, citing a decline in the state corporate income tax collections.
With that scene-setter, let’s get into all of the changes in this week’s 2018 Bill Watch:
Assignment of Benefits (AOB) – The Florida Senate’s version of AOB reform, SB 1168 by Sen. Greg Steube (R-Sarasota), did not make today’s Rules Committee agenda – a requirement before it can go before the full Senate for a vote. Today is the last scheduled meeting of that committee this session, so that leaves the Senate with the only option left of taking up the House bill, amending it, and sending it back to the House. Not likely. Compromise among insurance, legal, and contractor interests remains elusive. It just appears that special interests are going to prevail over consumer interests, with abuse by bad actors who continue to pocket ill-gotten gains.
The Senate bill still doesn’t address one-way attorney fees, which is driving rising consumer rates within AOB. (See More than Half of Insurance Litigation Involves AOBs in this newsletter) The bill would continue current practice to allow such fees to the prevailing party in a lawsuit or settlement – whether that be the policyholder or a third-party vendor exercising an AOB. This is contrary to the intent of Florida’s one-way attorney fee statute as testified to by former state Supreme Court Justice Ken Bell and to the advice of Florida Insurance Commissioner David Altmaier and many others.
The Florida House on January 12 passed its version of AOB reform, with HB 7015 by Rep. Jay Trumbull (R-Panama City). The bill addresses AOB abuses and enhances consumer/policyholder protections. While one-way attorney fees would continue to exist for first-party claims filed by a policyholder against an insurer, this bill sets special two-way attorney fees for third-party claims. Its purpose is to discourage frivolous and abusive claims and lawsuits. See Bill Watch Backgrounder: Assignment of Benefits for more details on the history of AOB reform and these current bills, the latest data, and past committee and stakeholder discussions.
Meanwhile, Rep. David Santiago (R-Deltona), who has been a champion in the fight against the abuse of assignment of benefits for the past several years, has a catch-all insurance bill (HB 465), known as an “omnibus” bill to change several provisions of the insurance code. The bill has been revamped as CS/CS/HB 465 and still awaits a final vote by the full House. Previous changes to the original bill included elimination of a provision that would have excluded from the Department of Financial Services complaint registry complaints filed by third parties who are not satisfied with an insurance company’s claims handling when an assignment of benefits is involved. Among other non-AOB changes in this bill is the addition of the Intelligent Mail Barcode or other similar tracking methods used or approved by the United States Postal Service as an acceptable delivery method under a policy’s proof of mailing requirement. Majority Leader Ray Rodrigues questioned Rep. Santiago on the veracity of the process, noting it tracks a package to the mail center and then the mail truck, but not to someone’s home. Rep. Rodrigues said he knows from personal experience (and those of his neighbors) that mail mix-ups occur and said something as important as an insurance notice should have a traceable delivery abilities. Look for more discussion about this when the bill is debated on the House floor.
A revamped companion, Senate Bill (CS/SB 784) by Senator Brandes passed its second committee last week with a unanimous vote by the Judiciary Committee but has not been scheduled for its final committee, Appropriations, meeting tomorrow. This committee could have additional meetings in the future, prior to the end of session. The bill now contains a provision that mediation may be requested only by the policyholder, as a first-party claimant; a third party, as assignee of the policy benefits; or the insurer. However, an insurer is not required to participate in any mediation requested by a third party assignee of policy benefits.
Windshield AOB – Likewise, Windshield AOB reform through Senator Dorothy Hukill’s CS/CS/SB 396 has also run out of time, as its final committee – Banking and Insurance – is no longer meeting. During its last committee, there were ruffled feathers from some windshield repair shops following passage of the bill by the Senate Commerce and Tourism Committee on January 29. The bill would allow auto insurers to require an inspection of a damaged windshield of a covered motor vehicle before the windshield repair or replacement is authorized. The bill addresses what Sen. Hukill has called “the proliferation of damaged windshields in Florida by bad actors, waiting in parking lots and car washes, offering free windshields and incentives for their services, whether needed or not, and it’s driving up costs.” The bill includes requirements that the inspection take place within 24 hours from the notice of a claim – but must be skipped if the damage has impacted the vehicle’s structural integrity or otherwise would be a violation to drive on the roadway. The bill is also meant to cut down on the number of AOB lawsuits by out-of-network windshield shops. Those lawsuits, according to the state Department of Financial Services, have grown from 397 in 2006 to 19,513 in 2017.
Prior to the meeting, Hukill filed an amendment that eventually passed which would prohibit windshield shops from offering incentives to customers to file insurance claims for damaged windshields. The bill has been revamped several times. Hukill’s bill has an identical companion bill in the House (HB 811) by Rep. Plasencia, which never saw its first committee hearing.
Workers’ Compensation – Like AOB reform, Workers’ Comp reform is another issue that was fast-tracked by the Florida House while the Senate never produced a formal bill. Business groups’ support of the House effort has been lukewarm, saying it could be “premature and ultimately, inadequate” especially in restricting attorney fees. The House, on January 12, passed HB 7009 by Rep. Danny Burgess (R-Zephyrhills). It’s a near replica of HB 7085 from last session that died over disputes on maximum hourly attorney fees. This is by far one of the most contentious – and by court rulings, most immediate – issues facing the legislature after the state Supreme Court’s 2016 ruling that our workers’ comp system was unconstitutional. While the bill has had no Senate companion, Senate President Negron was quoted in January as saying his chamber is eager to pass something this session.
This past week, the Senate Banking and Insurance Committee (the one that could have taken up Windshield AOB and didn’t) took up CS/SB 1568, which would eliminate a 2003 law that makes it a felony insurance fraud for anyone to knowingly present false or misleading information about their identities in obtaining employment. While it could have applied to illegal aliens, its sponsor Senator Gary Farmer (D-Ft. Lauderdale) added an amendment to clarify instead that the bill “is simply designed to ensure that workers who are injured on the job obtain the benefits they are due.” This was a ceremonial or “courtesy hearing”, as with no House companion bill or time left in the session, this bill is going nowhere.
Last year’s House workers’ comp bill came on the heels of a 14.5% average increase in workers’ comp rates – adding to the urgency. This fall, however, OIR approved decreased rates averaging 9.5%. Rep. Burgess has warned that those decreased rates don’t reflect the lagging cost increases still anticipated from state Supreme Court decisions throwing out limits on attorney fees and extending certain disability payments. Recent statistics do show increases in workers’ comp legal fees, as previously reported in the LMA Newsletter. Rep. Burgess said it was important to be proactive and pass reforms now, before the next rate increase. The bill eliminates fee schedules but puts a cap of $150/hour on plaintiff (workers) attorney fees. Yet business groups’ support of the measure has been lukewarm, saying it could be “premature and ultimately, inadequate” especially in restricting attorney fees.
HB 7009 is one of the five most-lobbied bills in the legislature according to a recent report by the Tampa Bay Times.
Workers’ Compensation for First Responders – CS/SB 376 by Senator Lauren Book (D-Plantation), will be heard tomorrow before the Appropriations Committee, but will most likely miss getting heard by its last committee, in Rules. The bill removes the requirement on some first responders that there be a physical injury in some circumstances in order to receive medical benefits for a “mental or nervous injury”, so long as the responder witnessed a specified traumatic event. These efforts are inspired, in part, by the city of Orlando’s refusal to pay such benefits to a police officer reportedly diagnosed with PTSD after responding to the Pulse nightclub shootings. Meanwhile its House companion bill, CS/CS/HB 227 by Rep. Matt Willhite (D-Royal Palm Beach) has one more committee stop left in the Government Accountability Committee, which is meeting today, and will consider the bill. SB 126 by Senator Victor Torres (D-Kissimmee), which would require treatment begin within 15 days, was never heard.
Personal Injury Protection (PIP), also called No Fault Insurance – Efforts continue behind-the-scenes to put a bad-faith element in both the House and Senate bills that would do away with PIP insurance. But it appears more doubtful with each passing day that either bill will be passed by the full legislature. The bills under consideration would eliminate the state requirement that motorists carry $10,000 in PIP insurance and put responsibility for vehicle accidents on the party at fault. While the House has passed its PIP repeal bill and the Senate is working its version through the third of four committees this week, some insurance interests are withholding formal support because neither bill provides protections from bad faith lawsuits that will likely go with the territory of returning to a tort system. As a result, the future of PIP elimination remains unclear.
The House chalked up a quick victory on January 12 with passage of HB 19. The bill eliminates PIP and would require motorists instead to carry Bodily Injury liability insurance at a minimum $25K/$50K level. Rep. Erin Grall (R-Vero Beach) who is sponsoring this bill for second year in a row, has noted that despite various PIP reforms in the past, costs keep going up, driven partly by fraud. OIR and committee staff analysis show auto rates would go down (5.6% overall) if the bill passes and should encourage those driving illegally without proper insurance (22% of Florida drivers she has said) to get coverage. The bill also revises the uninsured and underinsured coverage legal damage thresholds.
The Senate’s answer to PIP reform will go before the Appropriations Subcommittee on Health and Human Services this Wednesday afternoon. CS/SB 150, by Senator Tom Lee (R-Brandon), goes beyond the House bill and replaces PIP with mandatory $5,000 of Med Pay coverage (and loses the consumer savings as a result) plus varying amounts of Bodily Injury liability limits which appears to give consumers choices. Senator Lee revamped his original bill to now focus Med Pay coverage solely on emergency hospital treatment and within two weeks after the accident. The bill was further amended to allow less expensive treatment by other practitioners, including chiropractors. Some senators expressed concern in a past committee that the bill will effectively raise auto insurance rates for those motorists who have just PIP policies. But Senator Lee refuted that, noting that mandatory BI will cost $49 per $1,000 of coverage versus the current $121 per $1,000 of PIP coverage. As an example, he said a scenario of PIP + minimum BI + Med Pay would cost just $4 more, proof of a more efficient system without PIP.
SB 150’s Bodily Injury liability coverage choices are:
- 20/40/10 minimum coverage from 1/1/19-12/31/20 or a Med Pay and motor vehicle liability policy with a combined property damage and bodily injury coverage of $50,000 for one crash;
- 25/50/10 minimum coverage from 1/1/21-12/31/22 or a Med Pay and motor vehicle liability policy with a combined property damage and bodily injury coverage of $60,000 for one crash; and
- 30/60/10 minimum coverage from 1/1/23 and thereafter or a Med Pay and motor vehicle liability policy with a combined property damage and bodily injury coverage of $70,000 for one crash.
Senators are facing pressure by Incoming Senate President Bill Galvano to “get ‘er done” this session before he takes over in the fall.
A report out in early February by the actuarial firm Milliman says that eliminating PIP under the House’s already passed HB 19 would increase, not decrease coverage costs based on likely motorist scenarios. The Milliman Report, done for the Property Casualty Insurers Association of America, says an increase of 5.3% or $67 is likely under relevant variations in coverage and sample size, as more drivers will buy uninsured and underinsured coverage for protection against motorists who skip buying insurance altogether. The report says the increased costs result as well from the addition of non-economic damages under bodily injury and uninsured lines that don’t exist today under no-fault PIP. Combining HB 19 with the Medical Pay provisions of the Senate’s CS/SB 150 would see average coverage costs rise 6.4% or $80, said Milliman.
Hurricane Irma Damage – The legislature and the Governor are busy in the waning weeks of this legislative session reviewing and putting into motion specific recommendations by the House Select Committee on Hurricane Response and Preparedness from Hurricane Irma’s impacts. Included are a number of evacuation-related proposals, including an extension of the Suncoast Parkway north from the greater Tampa area to the Georgia state line. Other proposals include using passenger rail to evacuate citizens and looking at converting portions of highways during emergencies into all one-way traffic, a process known as “contraflow.” Here’s more on some specific bills and directives to date:
Affordable Housing – Bills in both houses would create a Hurricane Housing Recovery Program and a Rental Recovery Loan Program to provide Florida residents funding for emergency housing and repairs after hurricanes. The programs would be funded by a 20% allocation (about $62 million this year) of the state’s existing Sadowski Affordable Housing Trust Fund. CS/CS/HB 987 by Rep. Bob Cortes (R-Altamonte Springs) will be heard on the House floor this week. A companion bill, SB 1328 by Senator Keith Perry (R-Gainesville), will be heard before the Appropriations Committee tomorrow, its final stop, before going to the full Senate.
Health Care Disaster Preparedness & Response – A revamped HB 7085 by Rep. Ralph Massullo (R-Beverly Hills), a medical doctor from the small town of Lecanto, in Citrus County, passed the House Appropriations Committee this past Friday and was placed on the special order calendar and will be heard on the House floor on Wednesday. The bill addresses the shortage of special needs shelters during Hurricane Irma and expands the list of people – including health care students and college professors – who can help provide care during disasters. The bill directs the state Department of Health, in coordination with the Division of Emergency Management and local emergency management agencies, to maintain a statewide registry of persons with special needs; requires nursing homes, assisted living facilities, home health agencies and nurse registries to have an emergency management plan & to conduct staff training; reassigns responsibility from DOH to AHCA for establishing & maintaining online database for licensees providing residential or inpatient services to report information regarding emergency status, planning, & operations; and requires licensees to provide for continuation of services under emergency conditions.
The House Health & Human Services Committee in mid-February heard some impressive numbers from Hurricane Irma. Almost 700 shelters were opened throughout the state, housing 191,764 people. There were 113 special-needs shelters in 53 counties, serving 10,452 people with special needs and 4,490 caregivers. The committee heard testimony that many shelters weren’t staffed adequately.
Trash Pickup – This bill will be heard by the Commerce Committee this afternoon. The House Energy and Utilities Subcommittee on January 29 passed CS/HB 971 by Rep. Randy Fine (R-Palm Bay) that would prohibit a municipal or private garbage service from charging customers for missed trash pickups, unless the trash is removed within three days of the normally scheduled date. The bill also prohibits telephone or cable companies from charging their customers for service that was interrupted for longer than 24 consecutive hours, unless it was the customers fault. The bill opened a broader discussion on the timing of garbage and yard waste both after and before a storm. Trash haulers who spoke said there should be no collection of garbage or yard trimmings 48 hours before a storm, as they can become projectiles in high winds. Afterward, in the case of Hurricane Irma in Jacksonville, one hauler testified many areas of the city were still flooded seven days later, preventing trash trucks from garbage pickup. Committee members expressed concern about the complexity of the bill and that it would create new costs that would inevitably fall on customers.
Underground Utilities – Legislation (HB 405) already passed by the House giving the state Public Service Commission the sole ability to require underground transmission lines, passed the Senate last Wednesday and is on its way to Governor Scott for his signature. The move ends a court battle of home-rule by Miami-Dade County that wanted the right to determine underground transmission lines when it was reviewing FPL’s plans to add two nuclear reactors to its Turkey Point Generating Station. Senator Tom Lee, who had sponsored a companion bill in the Senate (SB 494), said the measure makes changes that essentially revert the siting process to what it had been for 45 years prior to the court ruling.
Nursing Home Emergency Power – House Health & Human Services Committee Chairman Travis Cummings (R-Orange Park) is still working to develop the financial structure needed as part of new state Health Department rules that would require that long-term care facilities have back-up generators. The measure was prompted by the deaths of residents of a Hollywood nursing home that lost its air-conditioning system during Hurricane Irma. The rub is how to help fund the venture for the state’s 3,000 Assisted Living Facilities, which unlike nursing homes, cannot offset the cost with Medicaid funding. Any rule that increases the costs of state regulation by $1 million or more over a five-year period requires legislative approval first.
Meanwhile, CS/SB 1874 by Senator Kathleen Passidomo (R-Naples) would require the Agency for Health Care Administration to adopt and enforce rules requiring each nursing home and assisted living facility to have an emergency power source and fuel supplies to last at least 96 hours during a power outage. The bill has passed only two of its four committees and is not on the agenda of tomorrow’s Senate Appropriations Committee.
Fuel Emergencies – CS/HB 7083 features a number of the recommendations made in the House Select Committee on Hurricane Response and Preparedness report, with the primary focus though on better fuel delivery to Floridians during time of crisis. The bill passed the House Appropriations Committee last Thursday and is ready to be scheduled for a vote on the House floor. It requires a study to be completed by July 1 that would outline how rail tank cars and mobile fuel transfer systems could be used as temporary storage and dispensing facilities for motor vehicle fuels before, during, and after a hurricane. The measure was prompted by the run on gas and various shortages that occurred during the evacuation from South Florida during Irma.
The Senate meanwhile, still has two more committee stops for CS/SB 700 that would create a Florida Strategic Fuel Reserve Task Force within the Division of Emergency Management. The task force would recommend by April 30, 2019, a strategic fuel reserve plan to meet the state’s fuel needs during emergencies and disasters.
The state agriculture commissioner would be empowered to lower gas prices during an emergency under an amendment previously added to CS/CS/HB 553, a House omnibus bill on regulations by the Department of Agriculture and Consumer Services. The bill is ready for consideration by the full chamber. The measure’s specific intent is to require gas stations that run out of lower octane fuel to then sell their higher octane fuels at the lower octane price. In a prior committee meeting, a representative from the Florida Petroleum Marketers Association said the measure would place Floridians at greater risk of predatory pricing in the longer term, because the big oil companies can afford to sell 93 Octane gas at 87 Octane prices while the smaller mom and pop operators cannot. Representative Jamie Grant (R-Tampa) pointed out the measure would help consumers immediately prior to and after a disaster, when they need it most, in what was a very good debate among members.
Governor Directives – Governor Scott in early February issued a series of directives to state agencies, mostly the Department of Transportation, to begin immediate work implementing some of the House Select Committee report’s recommendations. This includes the DOT by this July, identifying areas along major evacuation routes where more fuel services are needed and looking at options to expand fuel capacity for first responders. Other directives include expanding emergency shoulder use along key interstates, a strategy used during Irma last September as traffic backed up while motorists fled north on I-75 ahead of the storm. The Governor also directed that cameras and message signs be installed along I-75 from Ocala north to the Georgia state line and enhancements be made to the state’s “Florida 511” traffic information website for motorists. The DOT’s previous review suggested emergency shoulder plans for I-75 northbound from Alligator Alley in Fort Lauderdale; on the turnpike northbound from Orlando; on Interstate 95 northbound from Jupiter to south of Jacksonville; and on Interstate 10 westbound from I-75 to just east of Tallahassee.
The House Select Committee on Hurricane Response and Preparedness issued its final report on January 16 with 78 recommendations to make Florida a safer and better prepared state when the next big hurricane hits. They include extending the Suncoast Parkway from Citrus County to the Georgia line to aid in evacuations, strengthening the power grid, and better protecting vulnerable populations housed in shelters and senior care facilities. The report is now in the hands of House Speaker Corcoran who has made clear the House spending priorities this session will be for hurricane relief. Both chambers have bills that would make backup generators mandatory and nursing homes and assisted-living facilities, one of the report’s recommendations. How to help the industry pay for it is still being debated. Among the proposals are increasing Medicaid reimbursement rates or offering tax incentives. The report capped 20 hours of committee meetings over two months hearing various ideas from government and private interests.
Better management of local shelters was another priority in the report with recommendations to provide more training and better coordination. Developing a better communication process between local emergency management officials and electric utilities to identify restoration critical to public safety was suggested. As for fleeing Florida prior to storms, the report recommends the state develop and implement a real-time, web-based evacuation route/destination resource tool to assist the public in making informed decisions relating to the selection of evacuation routes and destinations. Also, better utilization of rail lines before, during, and after an event to bring gasoline and diesel fuel and likewise, using expanding passenger rail service for evacuations.
Other recommendations of note to insurance interests: investing in plans that cost effectively mitigate flood risks to developed areas, including protection of greenways and blueways that act as flow ways or provide temporary storage during high water events. Also, to provide incentives, such as civil immunity, for parking garage owners to make their garages available to the public during a hurricane. Rep. Holly Raschein’s suggestion that high-risk areas not be rebuilt after storms and instead, could be part of a state buyout program, did not make the final list. The report’s full list of 78 recommendations are in Appendix 3 beginning on page 43.
Hurricane Flood Insurance – There are other bills prompted by Hurricane Irma’s aftermath. CS/SB 1282 by Senator Taddeo (D-Miami) passed the Rules Committee this week and is ready for a hearing in the full Senate while CS/CS/HB 1011 by Rep. Janet Cruz (D-Tampa) has already passed the House. The bills were prompted by two realities: upwards of 60% of Irma’s damage here was caused by water and up to 80% of Florida flood victims may not have either NFIP or private flood coverage. The bills would require homeowners insurance policies that do not include flood insurance (most don’t) to so declare and would require policyholders to initial that declaration in acknowledgment. “It will save a lot of trouble for homeowners,” Senator Taddeo told the Senate Community Affairs Committee mid-February, prior to its passing her bill. “After Hurricane Irma, a lot of homeowners were calling my office saying that ‘My insurance isn’t covering this’,” she said. CS/SB 1282 contains two amendments that 1) require the policies to acknowledge that private flood coverage is available for those homeowners with property valued above the National Flood Insurance Program’s $250,000 coverage limits; and 2) push the effective date of the measure to 2019 to allow insurance companies enough time to change their forms. The passed House bill removed the specific reference to the National Flood Insurance Program.
Florida Hurricane Cat Fund – An effort to return a portion of property insurance premiums to policyholders during quiet storm years is facing a doubtful future. SB 1454 by Senator Jeff Brandes (R-St. Petersburg) passed its first hearing last week before the Senate Banking and Insurance Committee but has run out of time. Like the House bill below, it would accomplish savings, but more quickly, by eliminating the rapid cash build-up factor resulting in immediate rate savings. “This bill is eliminating a hurricane tax on hardworking Floridians,” said Senator Brandes.
The House bill, CS/HB 97 by Rep. David Santiago (R-Deltona) was not scheduled for today’s final Commerce Committee, a necessary step to reach the House floor. The bill, as does the Senate’s, addresses the growing balance – until Hurricane Irma – of the Florida Hurricane Catastrophe Fund. The Fund provides reimbursements to insurers for a portion of their catastrophic hurricane losses. Insurers pay premiums into the fund each year and pass the costs along to their policyholders, just like reinsurance. But in quiet years, the fund has grown beyond its current statutory requirement of $17 billion, prompting the question: Should you reduce collections and thereby reduce premiums to policyholders?
The bill attempts to do that by changing the premium formula through changes in the rapid cash build-up factor based on the projected fund balance each year. The factor would vary, from 25% when the fund balance is less than $14 billion, to 0% when the fund balance is at least $16 billion. (A previous amendment to gradually reduce the Cat Fund limit of $17 billion to $14 billion by the year 2022 was withdrawn.) The elimination of this “hurricane tax” as the rapid cash build-up factor is often described, will reduce rates approximately 4% but may be offset by other rate increase drivers like the assignment of benefits.
Jay Neal of the Florida Association for Insurance Reform supported the bill at previous committee meeting, noting the average policyholder pays an extra 4% now for the rare possibility of a catastrophic event. “When fund balances are high, we don’t see the need to have the assessment and instead let the consumer spend that money elsewhere in the economy,” he said.
Other groups, including the Florida Chamber of Commerce and Associated Industries of Florida urged caution, saying the bill too dramatically reduces the rapid cash build up, creating the risk of special assessments on policyholders if the fund is caught short after a big hurricane. Indeed, the representative for the Cat Fund testified that they are projecting a $2 billion hit to the Fund from Hurricane Irma. If Irma had been a direct hit on Florida, the Fund would have been exhausted, requiring such special assessments to build the fund up for the next season.
Bill sponsor Rep. Santiago had admitted more debate is needed. Although acknowledging that the “safety valve” in the bill wouldn’t produce consumer savings this year due to the $2 billion hit from Irma, “that safety valve would work, so that in quieter years, there would be savings…to help constituents avoid what I consider a tax year after year.”
Direct Primary Care – This is an issue that’s down to the wire. CS/SB 80 by Senator Lee, passed by unanimous votes in October out of the Banking and Insurance, as well as the Health Policy Committees, is finally getting its last committee hearing tomorrow before the Senate Appropriations Committee – on the last day it’s scheduled to meet this session.
The Senate bill, like its House counterpart, is informally dubbed “concierge medicine for the masses”. HB 37 by Rep. Danny Burgess (R-Zephyrhills) passed the House on January 25. The bill allows doctors to enter into monthly fee for service arrangements directly with individuals or employers, essentially bypassing health insurance organizations. Burgess, in explaining the bill on the floor, said a lot of doctors don’t enter direct primary-care agreements because of regulatory uncertainty. The bill would make clear direct primary care is not subject to insurance regulations. Burgess said the agreements are more affordable than insurance (typically costing about $75 month) and co-sponsor Rep. Mike Miller (R-Winter Park) said the bill gives the “ultimate decision-making process” to doctors and patients. “We’re trying to lower the cost of health care and improve the outcomes,” he said. Two amendments which would have essentially added Obamacare provisions by preventing a primary care practice from declining a new patient because of health status or discontinuing care to an existing patient due to health status, as well as eliminating refunds to an employer paying on behalf of an employee, directing the refund go instead to the patient – failed to pass.
HB 37 is one of the five most-lobbied bills in the legislature according to a recent report by the Tampa Bay Times.
Health Insurer Authorization – This is another issue that’s down to the wire. While CS/CS/SB 98 by Senator Steube was passed by the Senate on January 31, its House companion CS/CS/HB 199 by Rep. Shawn Harrison (R-Tampa) has one more stop – the House Health & Human Services Committee which meets for a final time tomorrow, but it’s not clear the bill will be on the agenda. The bills collectively would require insurers and Medicaid HMOs to approve or deny prior authorization requests as well as appeals from denials of care within three days in non-urgent situations and one day if the care is urgent. It would also prohibit prior authorization forms from requiring information not necessary to determine the medical necessity or coverage for a treatment or prescription. Health insurers and their pharmacy benefits managers would also have to provide requirements and restrictions on prior authorizations in understandable language and to make them available on the internet, along with a 60-day notice of any changes. It also defines “step therapy” and prohibits insurers and HMOs from requiring patients repeat step therapy protocols. In recognition of the current opioid crisis, the Senate previously approved an amendment requiring insurers waive step therapy requirements if the treatment being recommended is a non-opioid alternative.
Past testimony on CS/CS/HB 199 included a schizophrenic patient testifying that getting on the right medication and staying on it are crucial. She hinted she had to start over with step-therapy protocols when her psychiatrist of 10 years retired. Denying a drug, even temporarily, she said, can lead to hospitalization and death. A representative from America’s Health Insurance Plans warned that disregarding step therapy protocols could impact patient safety. An amendment was added that clarified that this applies to insurance in both small group and large group plans. There was a question on whether this will increase rates for consumers. Rep. Harrison said possibly, but that it hasn’t happened in other states with this requirement.
Payment of Health Care Claims – Senator Steube is also sponsoring SB 162 that would prohibit health insurers and HMOs from retroactively denying insurance claims under certain circumstances. The bill was temporarily postponed on the Senate floor. Meanwhile, its House companion, HB 217 by Rep. Bill Hager (R-Delray Beach), has one more stop – the House Health & Human Services Committee which meets for a final time tomorrow, but it’s not clear the bill will be on the agenda. Past “yes” votes by members of the Appropriations Committee vowed to vote “no” if the bill isn’t improved during the last weeks of session. So provisions of these measures are still in play and will depend on the intestinal fortitude of its sponsors whether either makes it across the finish line.
The House bill, as does SB 162, would require that insurers verify a patient’s eligibility at the time of treatment to avoid doctors performing services that are later denied with insurers demanding repayment from the doctor or patient. The debate on the bill has turned into a debate on the federal Affordable Care Act (Obamacare) because the bill would apply to policies both on and off the federal exchange. Obamacare requires a three-month grace period on federal exchange policies as long as the patient paid at least one month’s premium. During the first month of the grace period, an insurer must pay all claims – during months two and three, insurers can notify providers that claims may be denied. Insurance groups, such as the Florida Association of Health Plans, opposed HB 217 during the meeting as simply codifying Obamacare into state law, given it would apply to both on- and off-exchange health policies. The bill has one final, yet unscheduled, stop before the House Health & Human Services Committee.
Telehealth – Efforts to bring telemedicine to full fruition are on life-support. CS/SB 280 by Senator Aaron Bean (R-Fernandina Beach) passed the Appropriations Committee last week, its final committee, and is ready for consideration by the full Senate, but its House counterpart never got a hearing. Senator Lauren Book (D-Plantation) told a previous committee she recently used the Facetime video application on her phone to remotely link one of her children with their dermatologist for treatment of hives and she heartily endorsed the concept. The bill is part of a continued effort to put remote health practitioner visits via the internet on an equal footing as in-office visits, in order to reduce health costs and provide parity of care to rural patients. A state panel in 2016 executed a list of legislative directives to help smooth the kinks and establish recommended procedures to help make this bill a reality. SB 280 would establish the standard of care for telehealth providers; encourage the state group health insurance program to include telehealth coverage for state employees; and encourage insurers offering certain workers’ compensation and employer’s liability insurance plans to include telehealth services. The bill would also ban the use of telehealth for prescribing controlled substances to treat chronic or nonmalignant pain or for certifying patients for medical marijuana treatment. A companion, HB 793 by Rep. Massullo, was filed in late November and never received a hearing and so is dead.
Texting While Driving – Senate Appropriations Chairman Rob Bradly (R-Fleming Island) was quoted this past week as having serious privacy concerns over a bill that would move Florida’s current ban on texting while driving from a secondary offense (where you can be ticketed during a traffic stop made for another reason) to a primary offense. So SB 90 by Senator Keith Perry (R-Gainesville) hasn’t been scheduled for the Appropriations Committee tomorrow, a required last stop before it is heard by the full Senate. Meanwhile, the House is schedule to vote this week on its counterpart, CS/CS/HB 33 by Rep. Jackie Toledo (R-Tampa). It includes an amendment its Senate companion previously adopted requiring that the driver’s race and ethnicity be recorded by law-enforcement officers when ticketing for texting while driving. The amendment passed out of concerns about racial profiling of minorities. Under the bill, first-time violators would face a $30 fine plus court costs for a non-moving violation. Second-time offenders would face a $60 fine plus court costs with a moving violation. Those involved in crashes or texting in school zones face additional penalties. Both bills require the officer notify the driver of the constitutional right not to have their cellphone examined by authorities. Neither applies to stationary vehicles. Florida is one of four states where texting while driving isn’t a primary offense.
Controlled Substances – While a just revamped House bill comes up for a full floor vote this Wednesday, its Senate counterpart still hasn’t been scheduled for a floor vote. Governor Scott’s office is driving this train and so the question remains where both bills will end up. This past week, the House Health & Human Services Committee approved an amendment to HB 21 by Rep. Jim Boyd (R-Bradenton) that changed the bill from a two-tier to a three-tier prescription system for opioid prescriptions. Patients with cancer or terminal illnesses and certain trauma patients would now be exempted from prescription limits. The bill would limit those with acute pain to a three-day supply. Doctors could go beyond that to a seven-day prescription for those determined medically necessary and the doctor would be required to write “acute pain exception” on the prescription. The Florida Orthopaedic Society remains opposed to the bill, with concerns noted by the Florida Medical Association.
Meanwhile, SB 8 by Senator Lizbeth Benacquisto (R-Ft. Myers) remains shelved from a full Senate vote after final committee approval two weeks ago and ongoing behind-the-scene talks among the Florida Medical Association and key lawmakers and the Governor’s Office. Both it and the House bill provide for more continuing education for responsibly prescribing opioids and requires participation in the Prescription Drug Monitoring Program by all healthcare professionals that prescribe opiates. It specifically requires doctors to check the database before writing prescriptions, to avoid enabling “doctor shopping” multiple-prescription patients. The Senate’s budget provides $53 million for the treatment and prevention of opioid addiction. The House bill would also authorize the state Department of Health to share data with other states to avoid patient abuse in filling multiple prescriptions. The House earmarked about $50 million to address the opioid crisis, with more than half of that to come from federal funding. The House also wants to spend $1 million on the statewide prescription drug database.
Governor Scott has requested the legislature appropriate $53 million toward the fight against opioid abuse, something state Attorney General Pam Bondi earlier in the session called “a great start” but nowhere near enough given the funding that will be necessary for treatment. She serves on the President’s Opioid and Drug Abuse Commission. She’s also conducting a multistate investigation into potentially unlawful practices by drug companies in the distribution, marketing, and sales of opioids.
HB 21 is the most-lobbied bills in the legislature according to a recent report by the Tampa Bay Times.
Trade Secrets in Public Records – CS/HB 459 & CS/HB 461 by Rep. Ralph Massullo (R-Beverly Hills) passed the House last week and are on their way to the Senate. These bills have not had a single hearing in the Senate which appears to indicate this subject will be a source of negotiation as we near the end of session in the next two weeks. The bills together eliminate trade secrets and its various definitions found in statutes and then restore them under a uniform definition and treatment. On February 16, three additional amendments were filed by Rep. Massullo, one of which would keep in place the bill’s proposed elimination of public records exemptions for certain information that might reveal trade secrets held by the Department of Legal Affairs but take out previously proposed elimination of similar public records exemptions for trade secrets held by the Office of Insurance Regulation and future trade secret documents submitted to the Department of Financial Services or the Office of Insurance Regulation.
CS/HB 459 repeals almost all public record exemptions for trade secrets in current law, the associated processes for designating a trade secret, and references to trade secrets contained in definitions for proprietary business information. This includes the trade secret process used in the insurance code, Section 624.4213, Florida Statute. Then, its “sister” bill, CS/HB 461 enacts a new trade secret process that is not unlike current law regulating insurance entities use of trade secrets now. It clearly defines the term and specifically excludes from the definition any of the myriad contracts and agreements between agencies and outside vendors that Speaker Corcoran has been critical of. So in essence, CS/HB 459 repeals the current insurance entity trade secret practice and CS/HB 461 restores it.
At the February 9 House Government Accountability meeting, it was clear that these trade secret bills are aimed at state agencies who contract with private businesses. Caught up in this debate was State Farm’s successful court decision to have their quarterly data not be available to the public as all other property insurers are required to do into the OIR QUASR system. In fact, State Farm was successful at this committee meeting to include an amendment to HB 459 that specifically preserves its data and company information as trade secret, along with information that is part of research activities at universities and teaching hospitals. Contained in HB 459, however, are provisions to make transparent catastrophe modeling information and that will have the effect of modelers shielding that information rather than sharing it with the hurricane methodology commission as they do now.
CS/HB 459 has companion SB 956 and similar bill SB 958 (both filed by Senator Mayfield in November) and CS/HB 461 has a similar bill in SB 958. Neither Senate bill ever had a hearing.
A Leon County judge recently ruled as well that a TV production/PR company had to release its records surrounding a state contract involving Emeril Lagasse’s $11.6 million cooking show contract with Visit Florida. These bills and this judicial dispute arise from House Speaker Richard Corcoran’s October press conference about his objection to state agencies who claim trade secret to shield contract and vendor information. Corcoran said that agencies should not be entitled to trade secret privileges if they “spend one penny of taxpayers’ dollars.” (In mid-February, the same judge reversed her previous ruling and is barring the House from receiving the remaining documents it subpoenaed.)
HB 37 is one of the five most-lobbied bills in the legislature according to a recent report by the Tampa Bay Times.
Assignment of Benefits (AOB) – There are other AOB bills in the Senate, but they are all stalled. They include SB 62 by Senator Dorothy Hukill (R-Port Orange). The bill prohibits certain attorney fees and requires those vendors that execute the AOB to comply with certain requirements prior to filing suit. HB 7015, which passed the House on January 12 has some elements of this bill.
Likewise stalled is SB 256 by Senator Gary Farmer (D-Ft. Lauderdale), which would prohibit insurer managed repair programs and prevent most property insurance policies from prohibiting or limiting AOB. But it would also require the AOB be in writing, be limited to an accurate scope of work to be performed, and allow the policyholder to cancel the AOB within seven days without penalty and otherwise, be shared with the insurer within seven days of execution. A final repair bill would be required to both policyholder and insurer within 7 days of work completed. Referral fees would be limited to $750 and require water damage remediation assignees to be ANSI certified. Insurance companies would be required to offer any settlement within 10 days of assignee filing suit over an AOB dispute. It also prohibits insurers from including the costs of attorney fees paid in losing cases into their rate base or future rate requests. Under the bill, OIR would be required to conduct an annual AOB data call beginning in 2020. HB 7015 which passed the House on January 12 has some elements of this bill, but not the attorney fee rate recoupment.
Personal Injury Protection (PIP) – There are other PIP bills, but they are also stalled. HB 6011 by Rep. Julio Gonzalez (R-Venice) deletes the requirement for policyholders & health care providers to execute disclosure & acknowledgment forms to claim personal injury protection benefits. It had its first reading on January 9 but remains unscheduled for committees. These requirements were originally established to help prevent fraud and include verification that actual services were rendered and weren’t solicited by the provider. HB 6011 has no Senate companion.
Regulation of Workers’ Compensation Insurance – Filed by Senator Lee on the Friday before Session began, SB 1634 authorizes the Insurance Consumer Advocate to intervene as a party in certain proceedings relating to the regulation of workers’ comp insurance or to seek review of certain agency actions before the Division of Administrative Hearings (DOAH). The bill also specifies requirements and procedures for the consumer advocate in the examination of workers’ compensation rates or form filings. There is no House companion bill.
Property Insurance – Filed by Senator Lee on the Friday before Session began, SB 1652 would prohibit property insurers who fail to make inspections within 45 days of notice of claim from denying or limiting payments for certain hurricane-related claims under certain circumstances. It also restricts insurers from requiring proof of loss and requires all these changes be added to Florida’s Homeowner Claims Bill of Rights and provided to the policyholder. The bill also requires property owners to disclose the sinkhole report in lease or lease/purchase agreements when an insurance claim has been paid for sinkhole damage. It has no House companion bill.
Florida Building Commission – The Florida Building Commission, which oversees state building codes – some of the toughest in the nation due to Florida’s susceptibility to hurricane damage – would be downsized under HB 299 by Rep. Stan McClain (R-Ocala), who is a residential contractor. The bill would cut the board more than in half, from 27 to 11 members, removing representation from several sectors in the building industry. The bill removes members representing: air conditioning, mechanical or electrical engineering, county code enforcement, those with disabilities, manufactured buildings, municipalities, building products, building owners/managers, the green building industry, natural gas distribution, the Department of Financial Services, the Department of Agriculture and Consumer Affairs, the Governor appointee as chair, and reduces from three members to one municipal code enforcement official and would no longer require a fire official. The bill also changes the qualifications of the architect member, removing the requirement of actively practicing in Florida. Rep. McClain said the bill is meant to remove any Commission members that aren’t directly involved in the building process but that he’s open to suggested changes. An amendment that would have removed the insurance representative was withdrawn this fall. HB 299 would leave the Commission comprised mostly of contractors. The bill is on its way to its last stop at the Commerce Committee but has no Senate companion.
Contractors Without Insurance – HB 89 by Rep. Ross Spano (R-Riverview) requires that contractors lacking public liability insurance shall be personally liable to a consumer for damages that having the proper insurance would have covered. The bill passed the Civil Justice & Claims Subcommittee in early November but has two more stops. Its Senate companion SB 604 by Senator Greg Steube (R-Sarasota) hasn’t had a hearing in any of its three committees yet.
Insurance Rates – Like he’s tried to do with AOB, SB 258 by Senator Farmer would prohibit insurance companies from including the costs of attorney fees paid in losing cases into their rate base or future rate requests in Workers’ Compensation and Life policies. Farmer’s similar bill in the 2017 session failed. SB 258 has been referred to the Committees on Banking and Insurance, Appropriations, and Rules but has not been scheduled to be heard. It is stalled and has no House companion.
Insurance Reporting – Filed by Senator Farmer on the Friday before Session began, SB 1668, follows the same bent as his previous bills on verifying insurance litigation costs. It would require insurers filing rates with the Office of Insurance Regulation provide specified information and projections relating to claim litigation in their rate filings. This includes litigation costs and total dollar value of denied or limited claims where either party prevailed (insurer or insured) and those claims that reached settlement, along with attorney fee breakdowns for all parties. This information would be culled from the year prior to the rate filing, as well as projected costs for the following year. It has no House companion bill.
Insurance Credit Scoring and Redlining – SB 414 by Senator Farmer would ban the use of credit scores as a determining factor in calculating auto insurance premiums. Currently, insurers are permitted to use a customer’s credit history as a justification for higher insurance rates. Statistically, drivers with poor credit scores pay more and according to Farmer “the use of credit scores as a determining factor for auto insurance rates has been found to disproportionately affect minority populations, with African American and non-white Hispanic policyholders often paying higher premiums, and is not a reliable indicator for increased risk.” Similarly, SB 410 would prohibit the use of zip codes as a determining factor in calculating auto insurance premiums, which Farmer called “de facto discrimination.” HB 659, which passed and became law in 2016, allows single zip code rating territories if they are actuarially sound and the rate is not excessive, inadequate, or unfairly discriminatory. Neither SB 414 nor SB 410 have had a hearing yet, and with no House Companion, their future is very uncertain.
Patient’s Choice of Providers – Dubbed the “Patient’s Freedom of Choice of Providers Act”, HB 143 by Rep. Ralph Massullo (R-Beverly Hills) prohibits a general health insurance plan from excluding willing and qualified health care provider from participating in a health insurer’s provider network so long as the provider is located within the plan’s geographic coverage area. The bill has been referred to the Health Innovation Subcommittee, but has stalled. There is a Senate companion, SB 714, which is also stalled.
Autonomous Vehicles – A revamped CS/HB 353 by Rep. Jason Fischer (R-Jacksonville) authorizes the use of vehicles in autonomous mode “regardless of whether a licensed human operator is physically present in the vehicle.” It unanimously passed its second hearing stop on January 22 before the House Appropriations Committee and awaits a hearing before the Government Accountability Committee. There was acknowledgment by various parties in the meeting that Florida is in a race with other states to legalize so-called “self-driving cars” together with the impact that would have on our existing AV research projects here. The autonomous technology would be considered the human operator of the motor vehicle and provides that various provisions of law regarding motor vehicles such as rendering aid in the event of a crash do not apply to vehicles in autonomous mode where a human operator is not physically present as long as the vehicle owner promptly contacts law enforcement. The bill also addresses the applicability of laws regarding unattended motor vehicles and passenger restraint requirements as they relate to vehicles operating in autonomous mode where a human operator is not physically present in the vehicle. A Senate companion (CS/SB 712) by Senator Brandes unanimously passed the Transportation Committee on January 25 and awaits hearings in the Banking and Insurance, and Rules Committees.
Property Tax Exemption for Generators – Designed to help those who want to help themselves the next time a big hurricane or other calamity hits and the power goes out, SJR 974 by Senator Jeff Brandes (R-Pinellas) would place a constitutional amendment on the 2018 ballot for voters to consider a property tax exemption for the just value of a permanently installed stand-by generator system when assessing annual property taxes; a companion bill SB 976 (Brandes) would implement the measure. Neither has been scheduled for committee hearings.
Flood Insurance and Mitigation – SB 158 by Senator Jeff Brandes (R-St. Petersburg) provides greater funding for flood mitigation so that more individuals and communities can meet NFIP flood insurance standards. The bill would allow flood mitigation projects to be funded by the Florida Communities Trust to reduce flood hazards. Senator Brandes has for the past 5 years taken the lead in Florida in the flood insurance arena. The bill has been referred to the Committees on Environmental Preservation and Conservation, Appropriations, and the Appropriations Subcommittee on the Environment and Natural Resources but has not been scheduled to be heard. An identical House companion, HB 1097 by Rep. Cyndi Stevenson (R-St. Augustine) was filed in late December. Neither has had its first hearing.
Helpful Links:
House Calendar for the Week of February 26-March2, 2018
Senate Calendar for the Week of February 26-March 2, 2018
Scenario-based Modeling for School Shootings?
Casualty risk modeling now being applied to sudden events
In the aftermath of the Parkland school shooting, there will almost certainly be civil lawsuits against the school district and other organizations and individuals that insurance will likely be involved in defending. How do you contemplate and rate the risk of such an event? This newsletter has updated readers on new modeling and technology that’s been a game-changer on the property side in bringing more private companies to write flood insurance in Florida. Now, there’s a new effort to use modeling on the casualty side. AIR Worldwide, a Verisk company, is modeling such “systemic” or sudden events that impact different insurance lines, and explains how in this recent Claims Journal article.
More Than Half of Florida Insurance Litigation in 2017 Involved AOBs
New report chronicles growing Assignment of Benefits abuse in Florida
A new report out by the Florida Justice Reform Institute provides the latest evidence that Florida’s Assignment of Benefits (AOB) system is broken and pins the blame squarely on a system that incentivizes vendors and trial lawyers to strip rights away from policyholders in order to make a buck, which is inflating insurance premiums for Florida’s consumers. Those AOB lawsuits filed last year represented more than half of all insurance litigation on the dockets – and it’s growing.
The Institute (FJRI) report states that lawsuits against insurance companies involving an AOB increased 58% between 2015 and 2017 (from 82,263 to 129,781). And it’s not just homeowners property claims suits. Automobile windshield claims suits have grown from 397 in 2006 to 19,513 in 2017, according to the state Department of Financial Services. The report blames aptly-named “no-risk proposition of attorney fees” as the culprit. Think about it. If you were a lawyer and knew you could get attorney fees awarded if you won just $1 more than the insurance company’s initial settlement offer, wouldn’t you take the case? Various bills in the Florida Legislature to reform this abuse are stalled (see this edition’s Bill Watch).
The report is very revealing in linking the 2012 reform of Florida’s Personal Injury Protection (PIP) auto insurance with the not-so coincidental growth of AOB abuse. The FJRI writes that “…we know that many PIP lawyers took their business model and developed relationships with other vendors, such as water remediators and auto glass shops, then applied the PIP template—assignments that transfer the one-way attorney fee—to property and auto glass coverages.”
FJRI found that about a dozen lawyers contribute to a quarter of all AOB litigation statewide. The report also provides insight into why insurers have been unsuccessful using the offer of judgment/proposal of settlement statute to control these rising litigation costs.
“Litigation reform is necessary to prevent policyholders from losing their rights to proper repair and to stop the double-digit premium increases that we will all pay for,” said William Large, FJRI President.
Folks, there’s one thing that’s clear to me after reading the FJRI report. AOB in Florida, in its current form, has become a weapon harming consumers who pay for this insanity. In private conversations with lawyers, many agree that what is happening is wrong and if the problem is that insurance companies “just don’t pay,” then it just makes sense to use the Department of Financial Services FREE helpline and consumer assistance specialists to mediate the claim dispute to avoid the lawsuits and the lawyers who perpetrate them.
If you have been a victim of an AOB scam where a vendor took your policy rights and you feel helpless or feel like your insurance company did you wrong, please call me at 850-528-9229 and I can guide you to free help from insurance regulators.
Some Teen Drivers Ignore Texting Bans
Study shows fewer ignore hand-held phone bans
While the Florida legislature considers bills to toughen enforcement of the ban on texting while driving, a new study shows that a third of teenage drivers in the nation – a prime focus of the bills – routinely ignore similar laws in other states. The study urges a ban on hand-held calling, which has produced better compliance with distracted-driving laws. Our children are precious, as we were reminded in the recent Parkland school shooting. Yet in 2016, nearly 1,600 people were killed in Florida and another almost 79,000 injured by distracted driving – some of them children – and represent double-digit increases from the year before.
The study by the Center for Injury Research and Policy at Nationwide Children’s Hospital, looked at the effectiveness of state laws in reducing teens’ use of cellphones while driving. The researchers found significant differences based on the types of bans (texting only vs. hand-held phone conversations) and whether the ban applied to just young drivers or all drivers. Bans of both types limited to just young drivers weren’t as effective as those on all drivers. Texting bans on all drivers showed about one-third of teens still texted, while bans on hand-held phone conversations revealed 55% fewer teen conversations compared to states with no bans.
“Nearly all states ban texting while driving, however, these bans are not effective. More states should implement hand-held cellphone bans, which have been proven to discourage hand-held cellphone conversations while driving,” said Dr. Motao Zhu, the study’s lead author and the Center’s principal investigator. The study was published recently in the Journal of Adolescent Health.
Florida is one of four states where texting while driving isn’t a primary offense. The House bill that makes it a primary offense (meaning you can be pulled-over just for texting) is scheduled for a floor vote this week, while the Senate bill still awaits to be heard in the Appropriations Committee before it can move to the full Senate.
U.S. Legislation Targets “Drive-By Lawsuits”
Practice holds property owners hostage to threat of suit
“Drive-by lawsuits” are common among those who use the Americans with Disabilities Act (ADA) as a weapon against commercial property owners threatened that they are out of compliance. A bill that passed the U.S. House last week, entitled ADA Education and Reform Act, H.R. 620, would require plaintiffs who alert property owners to a potential accessibility violation under the ADA to give them 60-days’ notice and then another 60 days to either fix the problem or have a detailed plan to do so.
The bill takes aim at a practice in which complainants, typically with help from legal counsel, send a demand letter threatening commercial property owners with a lawsuit for an alleged accessibility violation, like an incorrect slope in a parking lot or faded signage that would be hard for a visually impaired person to read. Owners are told to pay a fee to the complainant, typically around $5,000, to avoid having to defend themselves in court, without addressing the merits of the allegation.
Owners refer to these as “drive-by” lawsuits because the plaintiffs send out letters to dozens of property owners without necessarily visiting the properties to determine if, in fact, there’s a violation.
One real estate association conducted a 2016 survey of its members and found that more than a third of them have been hit with a demand letter of this type, and most paid a fee to settle out of court to avoid the expense and time of a lawsuit.
The similarities to these drive-by lawsuits and the current AOB crisis is not surprising. In the AOB insanity, insurance companies are slammed with hundreds of lawsuits, many that are small dollar amounts, so the plaintiff’s lawyer can “settle” and get their cut of the suit. One bill in the legislature gives insurance companies 30 days to work the claim before a suit can be filed, much like this national legislation provides 60 days+ to cure the alleged ADA violation. Yet in the Florida legislature, no such bipartisan support exists to cure the AOB problem.
The National Association of Realtors and others are working on a bill introduced in the U.S. Senate to address this ADA issue.
Meeting People Where They Are
As we prepare for the week ahead, I am reminded what my mama used to always say when I seemed puzzled or wondering about “what’s next”? She would say, “meet people where they are…” and while I lost her at the young age of 59 (I was 27 when she lost her battle to cancer), that saying has stuck with me.
I wonder where you are on the Parkland debate. We have heard all week with the crescendo on yesterday’s (Sunday’s) talk shows and the announcements of our leaders on their ideas to stop yet another mass shooting. As a matter of fact, the Florida legislature is considering sweeping criminal justice reform to reduce mandatory minimum sentences, implement arrest diversion programs, and try a computer-generated “risk assessment” tool to determine one’s violent propensities, patterning these ideas after Pinellas County’s offender diversion programs that have been in place for a while. LMA Newsletter readers are REALLY smart people so I welcome your thoughts and I will share them far and wide as I engage on this and other issues. Thanks for your unwavering support.
See you on the trail…..Lisa
