The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Appropriations Committee on Health and Human Services
BILL: SB 268
INTRODUCER: Senator Brodeur
SUBJECT: Health Care Expenses
DATE: April 11, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Looke Brown HP Favorable
2. McKnight Money AHS Pre-meeting
3. FP
I. Summary:
SB 268 amends and creates multiple sections of law in order to limit how hospitals and
ambulatory surgical centers (ASC) may collect medical debt and to exclude certain property
from being collected through legal action on such debt. The bill prohibits certain billing and debt
collection practices and limits legal actions on medical debt to three years after the debt has been
referred to a collection service.
The bill also requires a hospital or ASC to post standard charges for specified services on its
website and establish a process for reviewing and responding to grievances from patients.
Additionally, the bill amends a provision of current law that requires hospitals and ASCs to
provide estimates of anticipated charges for nonemergency services, to require that facilities also
must provide such estimates to the patient’s health insurer. The health insurer, in turn, is required
under the bill to prepare an “advance explanation of benefits” for the patient, within a specified
time frame prior to the service being provided, based on the facility’s estimate.
The bill may pose an indeterminate negative fiscal impact to the Agency for Health Care
Administration. See Section V of this analysis.
The bill takes effect on July 1, 2023.
II. Present Situation:
Florida Price Transparency: Florida Patient’s Bill of Rights and Responsibilities
In 1991, the Legislature enacted the Florida Patient’s Bill of Rights and Responsibilities
(Patient’s Bill of Rights).
1
The statute established the right of patients to expect medical
1
Section 1, Ch. 91-127, Laws of Fla. (1991); s. 381.026, F.S.
REVISED: BILL: SB 268 Page 2
providers to observe standards of care in providing medical treatment and communicating with
their patients.
2
The standards of care include, but are not limited to, the following aspects of
medical treatment and patient communication:
Individual dignity;
Provision of information;
Financial information and the disclosure of financial information;
Access to health care;
Experimental research; and
Patient’s knowledge of rights and responsibilities.
A patient has the right to request certain financial information from health care providers and
facilities.
3
Specifically, upon request, a health care provider or health care facility must provide a
person with a reasonable estimate of the cost of medical treatment prior to the provision of
treatment.
4
Estimates must be written in language “comprehensible to an ordinary layperson.”
5
The reasonable estimate does not preclude the health care provider or health care facility from
exceeding the estimate or making additional charges as the patient’s needs or medical condition
warrant.
6
A patient has the right to receive a copy of an itemized bill upon request and to receive
an explanation of charges upon request.
7
Currently, under the financial information and disclosure provisions in the Patient’s Bill of
Rights:
A request is necessary before a health care provider or health care facility must disclose to a
Medicare-eligible patient whether the provider or facility accepts Medicare payment as full
payment for medical services and treatment rendered in the provider’s office or health care
facility.
A request is necessary before a health care provider or health care facility is required to
furnish a person an estimate of charges for medical services before providing the services.
The Florida Patient’s Bill of Rights and Responsibilities does not require that the components
making up the estimate be itemized or that the estimate be presented in a manner that is
easily understood by an ordinary layperson.
A licensed facility must place a notice in its reception area that financial information related
to that facility is available on the website of the Agency for Health Care Administration
(AHCA).
The facility may indicate that the pricing information is based on a compilation of charges
for the average patient and that an individual patient’s charges may vary.
A patient has the right to receive an itemized bill upon request.
Health care providers and health care facilities are required to make available to patients a
summary of their rights. The applicable regulatory board or the AHCA may impose an
2
Section 381.026(3), F.S.
3
Section 381.026(4)(c), F.S.
4
Section 381.026(4)(c)3., F.S.
5
Id.
6
Id.
7
Section 381.026(4)(c)5., F.S. BILL: SB 268 Page 3
administrative fine when a provider or facility fails to make available to patients a summary of
their rights.
8
The Patient’s Bill of Rights also authorizes, but does not require, primary care providers
9
to
publish a schedule of charges for the medical services offered to patients.
10
The schedule must
include certain price information for at least the 50 services most frequently provided by the
primary care provider.
11
The law also requires the posting of the schedule in a conspicuous place
in the reception area of the provider’s office and at least 15 square feet in size.
12
A primary care
provider who publishes and maintains a schedule of charges is exempt from licensure fees for a
single renewal of a professional license and from the continuing education requirements for a
single two-year period.
13
The law also requires urgent care centers to publish a schedule of charges for the medical
services offered to patients.
14
This applies to any entity that holds itself out to the general public,
in any manner, as a facility or clinic where immediate, but not emergent, care is provided,
expressly including offsite facilities of hospitals or hospital-physician joint ventures, and
licensed health care clinics that operate in three or more locations. The schedule requirements for
urgent care centers are the same as those established for primary care providers.
15
The schedule
must describe each medical service in language comprehensible to a layperson. This provision
prevents a center from using medical or billing codes, Latin phrases, or technical medical jargon
as the only description of each medical service. An urgent care center that fails to publish and
post the schedule of charges is subject to a fine of not more than $1,000 per day, until the
schedule is published and posted.
16
Florida Price Transparency: Health Care Facilities
Under s. 395.301, F.S., a health care facility
17
must provide, within seven days of a written
request, a good faith estimate of reasonably anticipated charges for the facility to treat the
patient’s condition. Upon request, the facility must also provide revisions to the estimate. The
estimate may represent the average charges for that diagnosis related group
18
or the average
charges for that procedure. The facility is required to place a notice in the reception area that this
information is available. A facility that fails to provide the estimate as required may be fined
$500 for each instance of the facility’s failure to provide the requested information.
8
Section 381.0261, F.S.
9
Section 381.026(2)(d), F.S., defines primary care providers to include allopathic physicians, osteopathic physicians, and
nurses who provide medical services that are commonly provided without referral from another health care provider,
including family and general practice, general pediatrics, and general internal medicine.
10
Section 381.026(4)(c)3., F.S.
11
Id.
12
Id.
13
Section 381.026(4)(c)4., F.S.
14
Section 395.107(1), F.S.
15
Section 395.107(2), F.S.
16
Section 395.107(6), F.S.
17
The term “health care facilities” refers to hospitals and ambulatory surgical centers, which are licensed under part I of
Chapter 395, F.S.
18
Diagnosis related groups (DRGs) are a patient classification scheme which provides a means of relating the type of patients
a hospital treats (i.e., its case mix) to the costs incurred by the hospital. DRGs allow facilities to categorize patients based on
severity of illness, prognosis, treatment difficulty, need for intervention and resource intensity. BILL: SB 268 Page 4
Also, pursuant to s. 395.301, F.S., a licensed facility must notify each patient during admission
and at discharge of his or her right to receive an itemized bill upon request. If requested, within
seven days of discharge or release, the licensed facility must provide an itemized statement, in
language comprehensible to an ordinary layperson, detailing the specific nature of charges or
expenses incurred by the patient. This initial bill must contain a statement of specific services
received and expenses incurred for the items of service, enumerating in detail the constituent
components of the services received within each department of the licensed facility and
including unit price data on rates charged by the licensed facility. The patient or patient’s
representative may elect to receive this level of detail in subsequent billings for services.
Current law also directs these health care facilities to publish information on their websites
detailing the cost of specific health care services and procedures, as well as information on
financial assistance that may be available to prospective patients. The facility must disclose to
the consumer that these averages and ranges of payments are estimates, and that actual charges
will be based on the services actually provided.
19
Under s. 408.05, F.S., the AHCA contracts
with a vendor to collect and publish this cost information to consumers on an internet site.
20
Hospitals and other facilities post a link to this site – known as Florida Health Finder – to comply
with the price transparency requirements. The cost information is searchable, based on
descriptive bundles of commonly performed procedures and services. The information must, at a
minimum, provide the estimated average payment received and the estimated range of payment
from all non-governmental payers for the bundles available at the facility.
21
The law also establishes the right of a patient to request a personalized estimate on the costs of
care from health care practitioners who provide services in a licensed hospital facility or
ambulatory surgical center.
22
Federal Price Transparency Laws and Regulations
Congress and federal regulatory agencies recently took steps to improve the quantity and quality
of health care cost information available to patients.
Hospital Facility Transparency
On November 15, 2019, the federal Centers for Medicare & Medicaid Services (CMS) finalized
regulations
23
changing payment policies and rates for services furnished to Medicare
beneficiaries in hospital outpatient departments. In doing so, the federal CMS also established
new requirements for hospitals to publish standard charges for a wide range of health care
services offered by such facilities. Specifically, the regulations require hospitals to make public
both a machine-readable file of standard charges and a consumer-friendly presentation of prices
19
Section 395.301, F.S.
20
Section 408.05(3)(c), F.S.
21
Id.
22
Section 456.0575(2), F.S.
23
Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory
Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to
Make Standard Charges Public, 84 FR 65524 (November 27, 2019) (codified at 45 CFR Part 180). BILL: SB 268 Page 5
for at least 300 “shoppable” health care services. The regulations became effective on January 1,
2021.
24
The regulations define a “shoppable” service as one that can be scheduled in advance, effectively
giving patients the opportunity to select the venue in which to receive the service. This is a more
expansive designation of shoppable services than currently exists in Florida law. For each
shoppable service, a hospital must disclose several pricing benchmarks to include:
The gross charge;
The payer-specific negotiated charge;
A de-identified minimum negotiated charge;
A de-identified maximum negotiated charge; and,
The discounted cash price.
This information should provide a patient with both a reasonable estimate of the charge for a
shoppable service, and also a range in which the actual charge can be expected to fall.
The penalty for facility noncompliance under the federal regulations is a maximum fine of $300
per day.
25
Health Insurer Transparency
On October 29, 2020, the federal departments of Health and Human Services, Labor, and
Treasury finalized regulations
26
imposing new transparency requirements on issuers of individual
and group health insurance plans.
Estimates
Central to the new regulations is a requirement for health plans to provide an estimate of an
insured's cost-sharing liability for covered items or services furnished by a particular provider.
Under the final rule, health insurance plans must disclose cost-sharing estimates at the request of
an enrollee and publicly release negotiated rates for in-network providers, historical out-of-
network allowed amounts and billed charges, and drug pricing information. The rule’s goal is to
enable insured patients to estimate their out-of-pocket costs before receiving health care services,
to encourage shopping and price competition among providers.
27
Each health plan will be required to establish an online shopping tool that will allow insureds to
see the negotiated rate between their provider and their plan, as well as a personalized estimate
of their out-of-pocket cost for 500 of the most shoppable items and services. Under the federal
regulations, this requirement took effect January 1, 2023. Beginning in 2024, health plans will
24
Id.
25
Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory
Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to
Make Standard Charges Public, 84 FR 65524 (November 27, 2019) (codified at 45 CFR Part 180).
26
Transparency in Coverage, 85 FR 73158 (November 12, 2020)(codified at 29 CFR Part 54, 29 CFR Part 2590, 45 CFR Part
147, and 45 CFR Part 158).
27
Health Affairs Blog, Trump Administration Finalizes Transparency Rule for Health Insurers, November 1, 2020, available
at https://www.healthaffairs.org/do/10.1377/hblog20201101.662872/full/ (last visited Mar. 31, 2023). BILL: SB 268 Page 6
need to provide personalized cost-sharing information to patients across the full range of covered
health care services.
28
Medical Loss Ratio
The regulations also clarify the treatment of shared savings expenses under medical loss ratio
(MLR) calculations required by the Patient Protection and Affordable Care Act (ACA). MLR
refers to the percentage of insurance premium payments that are actually spent on medical claims
by an insurer. In general, MLR requirements are intended to promote efficiency among
insurers.
29
The ACA established minimum MLR requirements for group and individual health
insurance plans.
30
Under the ACA, large-group plans must dedicate at least 85 percent of
premium payments to medical claims, while small-group and individual market plans must
dedicate at least 80 percent of premium payments to medical claims.
31
Further, the law requires a
health plan that does not meet these standards to provide annual rebates to individuals enrolled in
the plan.
32
The regulations finalized in October 2020 specify that expenses by a health plan in direct support
of a shared savings program shall be counted as medical expenditures.
33
Thus, a health plan
providing shared savings to members will receive an equivalent credit towards meeting the MLR
standards established by the ACA. In theory, this policy should provide an additional incentive
for insurers to adopt shared savings programs if they have not already done so.
The Federal “No Surprises” Act
On December 27, 2020, Congress enacted the No Surprises Act as part of the Consolidated
Appropriations Act of 2021.
34
The No Surprises Act includes a wide-range of provisions aimed
at protecting patients from surprise billing practices and ensuring that patients have access to
accurate information about the costs of care. Most sections of the Act go into effect on January 1,
2022, and the federal departments of Health and Human Services, Treasury, and Labor are
tasked with issuing regulations and guidance to implement a number of the provisions.
35
Estimates – Facilities
In the spirit of price transparency, the No Surprises Act establishes the concept of an “advanced
explanation of benefits” (AEOB) that combines information on charges provided by a hospital
28
Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory
Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to
Make Standard Charges Public, 84 FR 65524 (November 27, 2019) (codified at 45 CFR Part 180).
29
Henry J Kaiser Family Foundation, “Explaining Health Care Reform: Medical Loss Ratio (MLR)”, February 29, 2012,
available at https://www.kff.org/health-reform/fact-sheet/explaining-health-care-reform-medical-loss-ratio-mlr/ (last visited
Mar. 31, 2023).
30
Patient Protection and Affordable Care Act, s. 1001; 42 U.S.C. 300gg-18.
31
Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory
Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to
Make Standard Charges Public, 84 FR 65524 (November 27, 2019) (codified at 45 CFR Part 180).
32
Id.
33
45 CFR Part 158.
34
Public Law 116-260. The No Surprises Act is found in Division BB of the Act.
35
Id. BILL: SB 268 Page 7
facility with patient-specific cost information supplied by a health insurance plan. The process is
triggered when a patient schedules a service at a hospital facility or requests cost information on
a specific set of services. A hospital facility must share a “good faith estimate” of the total
expected charges for scheduled items or services, including any expected ancillary services, with
a health plan (if the patient is insured) or individual (if the patient is uninsured).
36
Estimates – Health Plans
Under the No Surprises Act, once the “good faith estimate” has been shared with a patient’s
health plan, the plan must then develop the AEOB. This personalized cost estimate must include
the following:
An indication of whether the facility participates in the patient’s health plan network. If the
facility is non-participating, information on how the patient can receive services from a
participating provider;
The good-faith estimate prepared by the hospital facility based on billing/diagnostic codes;
A good-faith estimate of the amount to be covered by the health plan;
A good-faith estimate of the amount of the patient’s out-of-pocket costs;
A good-faith estimate of the accrued amounts already met by the patient towards any
deductible or out-of-pocket maximum under the patient’s health plan;
A disclaimer indicating whether the services scheduled are subject to medical management
techniques (e.g., medical necessity determinations, prior authorization, step therapy, etc.);
and,
A disclaimer that the information provided is only an estimate of costs and may be subject to
change.
37
Furthermore, the Act directs the Secretary of Health and Human Services to establish, by January
1, 2022, a “patient-provider dispute resolution process” to resolve any disputes concerning bills
received by uninsured individuals that substantially differ from a provider’s good faith estimate
provided prior to the service being rendered.
38
The new requirements placed on hospitals and health plans by the No Surprises Act are
cumulatively intended to provide patients with increased certainty about the total and out-of-
pocket costs associated with health care services. In turn, patients may be more equipped to seek
out cost-effective care and avoid unforeseen costs that can lead to financial strain.
Many hospitals do not comply with the federal transparency requirement. A 2021 review of more
than 3,500 hospitals found that 55 percent of hospitals were not compliant with the rule and had
not posted price information for commercial plans or had not posted any prices at all.
39
Nearly 84
percent of hospitals failed to post machine-readable files containing standard charges, and
roughly 78 percent of hospitals did not provide a consumer-friendly shoppable services display.
40
36
Public Law 116-260, Division BB, Section 112.
37
Public Law 116-260, Division BB, Section 111.
38
Patient Protection and Affordable Care Act, s. 1001; 42 U.S.C. 300gg-18.
39
John Xuefeng Jiang, et al., Factors associated with compliance to the hospital price transparency final rule: A national
landscape study, Journal of General Internal Medicine (2021), available at https://link.springer.com/article/10.1007/s11606-
021-07237-y (last visited Mar. 31, 2023).
40
Id. BILL: SB 268 Page 8
Another review of more than 6,400 hospitals in 2022 indicated widespread non-compliance with
the federal transparency rule in that more than 63 percent of hospitals were estimated to be non-
compliant.
41
According to that review, only 38 percent of Florida hospitals were in compliance.
42
Medical Debt
Medical costs can result in overwhelming debts to patients, and in some cases, bankruptcy.
Nationwide, over 100 million people have some form of medical debt.
43
A 2007 study suggested
that illness and medical bills contributed to 62.1 percent of all personal bankruptcies filed in the
U.S. during that year.
44
A more recent analysis, which considered only the impact of hospital
charges, found that four percent of U.S. bankruptcies among non-elderly adults resulted from
hospitalizations.
45
Four in ten U.S. adults have some form of health care debt.
46
About half of
adults – including three in ten who do not currently have health care debt – are vulnerable to
falling in the debt, saying they would be unable to pay a $500 unexpected medical bill without
borrowing money.
47
While about a third of adults with health care debt owe less than $1,000,
even small amounts of debt can have significant financial consequences for some.
48
Though a
third of those with current debt expect to pay it off within a year and about a quarter expect to
pay it within one to two years, nearly one in five adults with health care debt think they will
never be able to pay it off.
49
Medical Debt Collection Process
Current law provides a court process for the collection of lawful debts, including medical debts.
A creditor may sue a debtor and, if the creditor prevails, the creditor may receive a final
judgment awarding monetary damages. If the debtor does not voluntarily pay the judgment, the
creditor has several legal means to collect on the debt, including:
Wage garnishment.
Garnishment of money in a bank account.
Directing the sheriff to seize assets, sell them, and give the proceeds to the creditor.
41
Foundation for Government Accountability, How America’s Hospitals Are Hiding the Cost of Health Care, pg. 3, August
2022, available at https://www.TheFGA.org/paper/americas-hospitals-are-hiding-the-cost-of-health-care (last visited Mar.
31, 2023). Only two hospitals to date have been fined for noncompliance with the transparency rule, both of which are in
Georgia’s Northside Hospital System.
42
Id., pg. 4.
43
Kaiser Health News, Diagnosis: Debt – 100 Million People in America Are Saddled with Health Care Debt, June 16, 2022,
available at https://khn.org/news/article/diagnosis-debt-investigation-100-million-americans-hidden-medical-debt/ (last
visited Mar. 31, 2023).
44
David U. Himmelstein, et al. “Medical Bankruptcy in the United States, 2007: Results of a National Study.” American
Journal of Medicine 2009; 122: 741-6, available at https://www.amjmed.com/article/S0002-9343(09)00404-5/abstract (last
visited Mar. 31, 2023)
45
Carlos Dobkin, et al. “Myth and Measurement: The Case of Medical Bankruptcies.” New England Journal of Medicine
2018; 378:1076-1078, available at https://www.nejm.org/doi/full/10.1056/NEJMp1716604 (last visited Apr. 2, 2023).
46
Lopes, L., Kearney, A., et al, Health Care Debt in the U.S.: The Broad Consequences of Medical and Dental Bills, June 16,
2022 (using results from the Kaiser Family Foundation Health Care Debt Survey), available at https://www.kff.org/health-
costs/report/kff-health-care-debt-survey/ (last visited March 31, 2023).
47
Id.
48
Id.
49
Id. BILL: SB 268 Page 9
In order to protect debtors from being destitute, current law provides that certain property is
exempt from being taken by a creditor. The Florida Constitution provides that the debtor's
homestead and $1,000 of personal property is exempt.
50
Statutory law provides numerous
categories of exempt property, and federal statutory law also provides certain exemptions that
apply in all of the states.
51
In addition to the protection from creditors contained in the Florida Constitution, chapter 222,
F.S., protects other personal property from certain claims of creditors and legal process:
garnishment of wages for a head of family;
52
proceeds from life insurance policies;
53
wages or
unemployment compensation payments due certain deceased employees;
54
disability income
benefits;
55
assets in qualified tuition programs; medical savings accounts; Coverdell education
savings accounts; hurricane savings accounts;
56
$1,000 interest in a motor vehicle; professionally
prescribed health aids; certain refunds or credits from financial institutions; and $4,000 interest
in personal property, if the debtor does not claim or receive the benefits of a homestead
exemption under the State Constitution.
57
Bankruptcy is a means by which a person’s assets are liquidated in order to pay that person’s
debts under court supervision. The U.S. Constitution gives Congress the right to uniformly
govern bankruptcy law.
58
Bankruptcy courts are operated by the federal government. A debtor
(the bankrupt person) is not required to give up all of his or her assets in bankruptcy. Certain
property is deemed “exempt” from the bankruptcy case and may be kept by the debtor without
being subject to creditor claims. The Bankruptcy Code provides for exempt property in a
bankruptcy case.
59
In general, a debtor may choose to utilize the exempt property listing in state
law or the exempt property of the Bankruptcy Code. However, federal law allows a state to opt-
out of the federal law and thereby insist that debtors only utilize state law exemptions.
60
Florida,
like most states, has made the opt-out election to prohibit the use of the federal exemptions and
require that debtors may only use state law exemptions.
61
III. Effect of Proposed Changes:
Medical Debt Protections
The bill amends and creates several sections of law in order to establish new protections for
consumers who carry medical debt owed to a hospital or ambulatory surgical center (ASC).
50
Art. X, s. 4(a), Fla. Const.
51
For example, the federal Employee Retirement Income Security Act of 1974 (ERISA) provides that most retirement plans
are exempt from creditor claims.
52
Section 222.11, F.S.
53
Section 222.13, F.S.
54
Section 222.15, F.S.
55
Section 222.18, F.S.
56
Section 222.22, F.S.
57
Section 222.25, F.S.
58
Art. 1, s. 8, cl. 4, U.S. Const.
59
11 U.S.C. s. 522.
60
11 U.S.C. s. 522(b).
61
Section 222.20, F.S. BILL: SB 268 Page 10
The bill creates s. 222.26, F.S., in order to shield a debtor’s interest, up to $10,000, in a single
motor vehicle and, if the debtor does not claim or receive the benefits of a homestead
exemption,
62
up to $10,000 of personal property. Under the bill, this property is exempt from
attachment, garnishment, or other legal process in an action on such debt.
The bill also amends s. 95.11, F.S., to establish that a legal action to collect such medical debt
must commence within three years starting at the time the facility refers the debt to a third party
for collection.
The bill creates s. 395.3011, F.S., to prohibit certain billing and collection activities related to
such medical debt. The bill defines the term “extraordinary collection action” to mean any of the
following actions taken by a licensed facility against an individual in relation to obtaining
payment of a bill for care covered under the facility’s financial assistance policy:
Selling the individual’s debt to another party.
Reporting adverse information about the individual to consumer credit reporting agencies or
credit bureaus.
Deferring, denying, or requiring a payment before providing medically necessary care
because of the individual’s nonpayment of one or more bills for previously provided care
covered under the facility’s financial assistance policy.
Actions that require a legal or judicial process, including, but not limited to:
o Placing a lien on the individual’s property;
o Foreclosing on the individual’s real property;
o Attaching or seizing the individual’s bank account or any other personal property;
o Commencing a civil action against the individual;
o Causing the individual’s arrest; or
o Garnishing the individual’s wages.
The bill prohibits a hospital or ASC from engaging in an extraordinary collection action:
Before the facility has made reasonable efforts to determine whether the individual is eligible
for assistance under its financial assistance policy for the care provided and, if eligible,
before a decision is made by the facility on the patient’s application for such financial
assistance;
Before the facility has provided the individual with an itemized statement or bill;
During an ongoing grievance process as described in s. 395.301(6), F.S., or an ongoing
appeal of a claim adjudication;
Before billing any applicable insurer and allowing the insurer to adjudicate a claim;
For 30 days after notifying the patient in writing, by certified mail, or by other traceable
delivery method, that a collection action will commence absent additional action by the
patient; or
While the individual:
o Negotiates in good faith the final amount of a bill for services rendered; or
o Complies with all terms of a payment plan with the facility.
62
Under s. 4, Art. X of the State Constitution BILL: SB 268 Page 11
The bill amends s. 395.301, F.S., to require each hospital and ASC to establish an internal
process for reviewing and responding to grievances from patients. The process must allow a
patient to dispute charges that appear on the patient’s itemized statement or bill and the facility
must prominently post on its website and print on each itemized statement or bill, in bold print,
the instructions for initiating, and the direct contact information required to initiate, a grievance.
The facility must respond to a patient’s grievance within seven business days after the patient
formally files the grievance.
Price Transparency Provisions
The bill amends s. 395.301, F.S., to require a hospital or an ASC to post on its website a
consumer-friendly list of standard charges for at least 300 shoppable health care services. If the
facility posts less than 300 services, it must include each service it provides. The bill defines:
“Shoppable health care service” to mean a service that can be scheduled by a health care
consumer in advance. The term includes, but is not limited to, the services described in s.
627.6387(2)(e), F.S.,
63
and any services defined in regulations or guidance issued by the U.S.
Department of Health and Human Services.
“Standard charge” to mean the same as that term is defined in regulations or guidance issued
by the U.S. Department of Health and Human Services for purposes of hospital price
transparency.
The bill also amends provisions requiring a hospital or ASC to provide a good faith estimate for
nonemergency medical services to a patient. The bill requires this estimate to be provided to the
patient or prospective patient upon scheduling the medical service, rather than within seven days
of receiving the request for the service as under current law, and also requires the facility to
provide the estimate to the patient’s health insurer
64
and to the patient at least three business days
before the service but no more than one business day after the service is scheduled, or three
business days after the service is scheduled if the service is scheduled at least ten days in
advance.
The bill removes current-law provisions that require the facility to take action to educate the
public that such estimates are available upon request and that specify that the estimate does not
preclude the actual charges from exceeding the estimate.
The bill creates s. 627.445, F.S., to require a health insurer to prepare an “advance explanation of
benefits” (AEB) after receiving an estimate from a hospital or ASC. The bill defines “health
insurer” as a health insurer issuing individual or group coverage or a health maintenance
organization issuing coverage through an individual or a group contract. The AEB must be
provided to the patient no later than one business day after the insurer receives the estimate or no
later than three business days for services scheduled at least ten business days in advance. At a
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These services include clinical laboratory services, infusion therapy, inpatient and outpatient surgical procedures,
obstetrical and gynecological services, inpatient and outpatient nonsurgical diagnostic tests and procedures, physical and
occupational therapy services, radiology and imaging services, prescription drugs, services provided through telehealth, and
any additional services published by the Agency for Health Care Administration that have the most significant price variation
pursuant to s. 408.05(3)(m).
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As defined in s. 627.445(1), F.S. BILL: SB 268 Page 12
minimum, the AEB must include detailed coverage and cost-sharing information pursuant to the
federal No Surprises Act.
Shared Savings Incentive Programs
The bill amends ss. 627.6387, 627.6648, and 641.31076, F.S. to specify that a health insurer or
health maintenance organization must count a shared saving incentive program as a medical
expense for rate development and rate filing purposes. This change removes a barrier to such
programs and aligns Florida law with federal law.
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Conforming Changes
The bill makes several conforming cross-reference changes.
Effective Date
The bill provides an effective date of July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Article II, Section 3, of the Florida Constitution has been interpreted by Florida courts to
prohibit the Legislature from delegating its legislative power to others.
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Under this non-
delegation principle, Florida courts have held that the Legislature may enact laws that
adopt federal statutes or other federal regulations in existence and in effect at the time the
Legislature acts; however, if the Legislature incorporates into a Florida statute a future
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Medicare and Medicaid Programs: CY 2020 Hospital Outpatient PPS Policy Changes and Payment Rates and Ambulatory
Surgical Center Payment System Policy Changes and Payment Rates. Price Transparency Requirements for Hospitals to
Make Standard Charges Public, 84 FR 65524 (November 27, 2019) (codified at 45 CFR Part 180)..
66
Abbott Laboratories v. Mylan Pharmaceuticals, Inc., 15 So.3d 642 (Fla. 1d DCA 2009), citing Gallagher v. Motors Ins.
Corp., 605 So.2d 62, 71 (Fla. 1992). BILL: SB 268 Page 13
federal act or regulation, courts have held that such incorporation constitutes an
unconstitutional delegation of legislative power.
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However, when a statute incorporates a federal law or regulation by reference, in order to
avoid holding the subject statute unconstitutional, Florida courts generally interpret the
statute as incorporating only the federal law or regulation in effect on the date of the
Legislature’s action to enact the Florida law, reasoning that the Legislature is presumed
to have intended to enact a valid and constitutional law.
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Lines 106-115 of the bill define the terms “shoppable health care service” and “standard
charge” with reference to how those terms are defined in “regulations or guidance issued
by the United States Department of Health and Human Services.” Considering that the
bill does not specify that it is referring to such definitions as they exist at a specific date
prior to the enactment of the bill, these references may be considered an unauthorized
delegation of legislative powers if interpreted to make reference to future revisions of
those definitions in federal law and may be interpreted to maintain the meaning of how
those federal definitions stand on the date the bill becomes effective instead of
incorporating such future revisions.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
SB 268 may have an indeterminate positive fiscal impact on consumers of health care
services at hospitals and ambulatory surgical centers (ASCs) through providing additional
price transparency prior to the consumer obtaining a health care service and through
protecting the consumer against certain debt collection practices for medical debt.
The bill may have an indeterminate negative fiscal impact on hospitals, ASCs, and health
insurers related to meeting the new requirements in the bill and on hospitals and ASCs
that may not be able to collect on medical debt that they may have collected prior to the
passage of the bill.
C. Government Sector Impact:
The Office of the State Courts Administrator reports that the State Courts System
receives $195 in filing fees for each civil proceeding, and those funds are deposited into
the State Courts Revenue Trust Fund (SCRTF). To the extent that the number of such
proceedings will be reduced by the bill’s prohibition against hospitals and ASCs pursuing
“extraordinary collection activities,” combined with the bill’s other limitations related to
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State v. Rodriquez, 365 So.2d 157, 160 (Fla.1978).
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Id. BILL: SB 268 Page 14
the collection of medical debt, the bill will negatively impact deposits into the SCRTF.
The extent of this impact is indeterminate.
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The Agency for Health Care Administration (AHCA) has not provided an estimate of the
costs it will incur under the bill’s numerous measures that increase the regulation of
hospitals and ASCs, both of which are licensed and regulated by the AHCA. By requiring
new regulatory and disciplinary actions by the AHCA to enforce the bill’s new
requirements, the bill may pose an indeterminate negative fiscal impact on the AHCA.
The extent of this impact is unknown without an estimate from the AHCA.
VI. Technical Deficiencies:
Lines 121-122 of the bill require a hospital or ambulatory surgical center (ASC) to provide the
good faith estimate to a patient “upon scheduling a medical service.” However, lines 126-132
require the facility to provide the estimate to the patient “no later than one business day after the
service is scheduled” (or three business days in certain scenarios). As such, it is unclear when a
facility is required to provide the estimate to the patient or whether the facility must provide the
estimate to the patient twice.
VII. Related Issues:
Line 128 requires the good faith estimate to be provided by the hospital or ambulatory surgical
center (ASC) to the health insurer and to the patient “at least 3 business days before a service is
to be furnished.” It may be impossible for a facility to meet this deadline if a service is to be
furnished less than three days after it is scheduled and may preclude services from being
furnished less than three days after they are scheduled.
The federal No Surprises Act requires the issuance of an “advanced” explanation of benefits.
Meanwhile, SB 268 requires the issuance of an “advance” explanation of benefits.
Many of the bill’s new requirements placed on hospitals, ASCs, and insurers are already required
under federal law. For example, the federal Centers for Medicare & Medicaid Services (CMS)
reports that, “CMS expects hospitals to comply with these legal requirements and is actively
enforcing these rules to ensure people know what a hospital charges for items and services. The
public is invited to submit a complaint to CMS if it appears that a hospital has not posted
information online.”
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It is unclear how much duplicative effort and confusion would be created
by dual enforcement of these laws under the enactment of SB 268.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 95.11, 395.301,
627.6387, 627.6648, 641.31076, 475.01, 475.611, 517.191, and 768.28.
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Office of the State Courts Administrator, 2023 Judicial Impact Statement: HB 1413, Mar. 22, 2023 (on file with the Senate
Committee on Health Policy).
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Centers for Medicare & Medicaid Services, Hospital Price Transparency Frequently Asked Questions (FAQs), pg. 21,
available at: https://www.cms.gov/files/document/hospital-price-transparency-frequently-asked-questions.pdf (last visited
Apr. 2, 2023). BILL: SB 268 Page 15
This bill creates the following sections of the Florida Statutes: 222.26, 395.3011, and 627.445.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.