New Bill to Grant Coma Rights in Missouri

A new bill in the Missouri House of Representatives is set to finally allow family members to make decisions for relatives in a coma. Missouri is one of the few states without these laws in place. This could mean big changes for health care providers and personal health care directives. Below is a copy of the bill.


HOUSE BILL NO. 1087
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES SCHAAF (Sponsor), TILLEY, MOORE, SMITH (118),
WHORTON, FISHER, PAGE, THRELKELD AND COOPER (155) (Co-sponsors).
Pre-filed December 8, 2005 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
3749L.01I
AN ACT
To repeal sections 383.035, 383.079, 383.105, 383.160, and 383.165, RSMo, and to enact in lieu
thereof seventeen new sections relating to insurance for health care providers in
Missouri.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 383.035, 383.079, 383.105, 383.160, and 383.165, RSMo, are
2 repealed and seventeen new sections enacted in lieu thereof, to be known as sections 383.035,
3 383.079, 383.105, 383.111, 383.160, 383.165, 383.300, 383.302, 383.304, 383.306, 383.308,
4 383.310, 383.312, 383.314, 383.316, 383.330, and 383.335, to read as follows:
383.035. 1. Any association licensed pursuant to the provisions of sections 383.010 to
2 383.040 shall be subject to the provisions of the following provisions of the revised statutes of
3 Missouri:
4 (1) Sections 374.010, 374.040, 374.046, 374.110, 374.115, 374.122, 374.170, 374.210,
5 374.215, 374.216, 374.230, 374.240, 374.250 and 374.280, RSMo, relating to the general
6 authority of the director of the department of insurance;
7 (2) Sections 375.022, 375.031, 375.033, 375.035, 375.037 and 375.039, RSMo, relating
8 to dealings with licensed agents and brokers;
9 (3) Sections 375.041 and 379.105, RSMo, relating to annual statements;
10 (4) Section 375.163, RSMo, relating to the competence of managing officers;
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11 (5) Section 375.246, RSMo, relating to reinsurance requirements, except that no
12 association shall be required to maintain reinsurance, and for insurance issued to members who
13 joined the association on or before January 1, 1993, an association shall be allowed credit, as an
14 asset or as a deduction from liability, for reinsurance which is payable to the ceding association's
15 insured by the assuming insurer on the basis of the liability of the ceding association under
16 contracts reinsured without diminution because of the insolvency of the ceding association;
17 (6) Section 375.390, RSMo, relating to the use of funds by officers for private gain;
18 (7) Section 375.445, RSMo, relating to insurers operating fraudulently;
19 (8) Section 379.080, RSMo, relating to permissible investments, except that limitations
20 in such section shall apply only to assets equal to such positive surplus as is actually maintained
21 by the association;
22 (9) Section 379.102, RSMo, relating to the maintenance of unearned premium and loss
23 reserves as liabilities, except that any such loss reserves may be discounted in accordance with
24 reasonable actuarial assumptions;
25 (10) Sections 383.100 to 383.111 relating to reports from medical malpractice
26 insurers;
27 (11) Sections 383.300 to 383.316 relating to notification, data reporting, and rating
28 requirements.
29 2. [Any association which was licensed pursuant to the provisions of sections 383.010
30 to 383.040 on or before January 1, 1992, shall be allowed until December 31, 1995, to comply
31 with the provisions of this section as they relate to investments, reserves and reinsurance.
32 3.] Any association licensed pursuant to the provisions of sections 383.010 to 383.040
33 shall file with its annual statement a certification by a fellow or an associate of the Casualty
34 Actuarial Society. Such certification shall conform to the National Association of Insurance
35 Commissioners annual statement instructions unless otherwise provided by the director of the
36 department of insurance.
37 [4.] 3. The director of the department of insurance shall have authority in accordance
38 with section 374.045, RSMo, to make all reasonable rules and regulations to accomplish the
39 purpose of sections 383.010 to 383.040, including the extent to which insurance provided by an
40 association may be extended to provide payment to a covered person resulting from a specific
41 illness possessed by such covered person; except that no rule or regulation may place limitations
42 or restrictions on the amount of premium an association may write or on the amount of insurance
43 or limit of liability an association may provide.
44 [5.] 4. Other than as provided in this section, no other insurance law of the state of
45 Missouri shall apply to an association licensed pursuant to the provisions of this chapter, unless
46 such law shall expressly state it is applicable to such associations.
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47 [6.] 5. If[, after August 28, 1992, and] after its second full calendar year of operation, any
48 association licensed under the provisions of sections 383.010 to 383.040 shall file an annual
49 statement which shows a surplus as regards policyholders of less than zero dollars, or if the
50 director of the department of insurance has other conclusive and credible evidence more recent
51 than the last annual statement indicating the surplus as regards policyholders of an association
52 is less than zero dollars, the director of the department of insurance may order such association
53 to submit, within ninety days following such order, a voluntary plan under which the association
54 will restore its surplus as regards policyholders to at least zero dollars. The director of the
55 department of insurance may monitor the performance of the association's plan and may order
56 modifications thereto, including assessments or rate or premium increases, if the association fails
57 to meet any targets proposed in such plan for three consecutive quarters.
58 [7.] 6. If the director of the department of insurance issues an order in accordance with
59 subsection [6] 5 of this section, the association may, in accordance with chapter 536, RSMo, file
60 a petition for review of such order. Any association subject to an order issued in accordance with
61 subsection [6] 5 of this section shall be allowed a period of three years, or such longer period as
62 the director may allow, to accomplish its plan to restore its surplus as regards policyholders to
63 at least zero dollars. If at the end of the authorized period of time the association has failed to
64 restore its surplus to at least zero dollars, or if the director of the department of insurance has
65 ordered modifications of the voluntary plan and the association's surplus has failed to increase
66 within three consecutive quarters after such modification, the director of the department of
67 insurance may allow an additional time for the implementation of the voluntary plan or may
68 exercise his powers to take charge of the association as he would a mutual casualty company
69 pursuant to sections 375.1150 to 375.1246, RSMo. Sections 375.1150 to 375.1246, RSMo, shall
70 apply to associations licensed pursuant to sections 383.010 to 383.040 only after the conditions
71 set forth in this section are met. When the surplus as regards policyholders of an association
72 subject to subsection [6] 5 of this section has been restored to at least zero dollars, the authority
73 and jurisdiction of the director of the department of insurance under subsections 5 and 6 [and
74 7]of this section shall terminate, but this subsection may again thereafter apply to such
75 association if the conditions set forth in subsection [6] 5 of this section for its application are
76 again satisfied.
77 [8.] 7. Any association licensed pursuant to the provisions of sections 383.010 to
78 383.040 shall place on file with the director of the department of insurance, except as to excess
79 liability risks which by general custom are not written according to manual rates or rating plans,
80 a copy of every manual of classifications, rules, underwriting rules and rates, every rating plan
81 and every modification of the foregoing which it uses. Filing with the director of the department
82 of insurance within ten days after such manuals, rating plans or modifications thereof are
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83 effective shall be sufficient compliance with this subsection. [Any rates, rating plans, rules,
84 classifications or systems in effect or in use by an association on August 28, 1992, may continue
85 to be used by the association.] Upon written application of a member of an association, stating
86 his reasons therefor, filed with the association, a rate in excess of that provided by a filing
87 otherwise applicable may be used by the association for that member.
383.079. The director shall compile a statistical summary of all data submitted and shall
2 issue a public report to the Missouri Bar and the supreme court of the state of Missouri.
3 Beginning not later than December 31, 2006, and annually thereafter, the director shall
4 report to the general assembly an accurate report as to the actual rates charged for
5 malpractice insurance and any changes in those rates from the previous year.
383.105. 1. Every insurer providing medical malpractice insurance to a Missouri health
2 care provider and every health care provider who maintains professional liability coverage
3 through a plan of self-insurance shall submit to the director of the department of insurance a
4 report of all claims, both open claims filed during the reporting period and closed claims filed
5 during the reporting period, for medical malpractice made against any of its Missouri insureds
6 during the preceding three-month period.
7 2. The report shall be in writing and contain the following information:
8 (1) Name and address of the insured and the person working for the insured who
9 rendered the service which gave rise to the claim, if the two are different;
10 (2) Specialty coverage of the insured;
11 (3) Insured's policy number;
12 (4) Nature and substance of the claim;
13 (5) Date and place in which the claim arose;
14 (6) Name, address and age of the claimant or plaintiff;
15 (7) Within six months after final disposition of the claim, the amounts paid, if any, and
16 the date and manner of disposition (judgment, settlement or otherwise);
17 (8) Expenses incurred; and
18 (9) Such additional information as the director may require.
19 3. As used in this section, "insurer" includes every insurance company authorized to
20 transact insurance business in this state, every unauthorized insurance company transacting
21 business pursuant to chapter 384, RSMo, every risk retention group, every insurance company
22 issuing insurance to or through a purchasing group, every entity operating under this chapter,
23 and any other person providing insurance coverage in this state[. With respect to any insurer
24 transacting business pursuant to chapter 384, RSMo, filing the report required by this section
25 shall be the obligation of the surplus lines broker or licensee originating or accepting the
26 insurance], including self-insured health care providers.
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383.111. 1. Any insurer, as defined in section 383.105, that fails to timely report
2 claims information as required by sections 383.100 to 383.125 shall be subject to the
3 penalties applicable to insurance companies under section 374.215, RSMo.
4 2. For purposes of sections 383.100 to 383.125, any guarantee association paying
5 claims on behalf of an insolvent insurer shall be subject to the same reporting requirements
6 as the insolvent insurer.
383.160. 1. All association policies of insurance shall be written so as to apply to injury
2 which results from acts or omissions occurring during the policy period. No policy form shall
3 be used by the association unless it has been filed with the director and approved [or thirty days
4 have elapsed and he has not delivered to the board written disapproval of it as misleading or not
5 in the public interest]. The director shall have the power to disapprove any policy form
6 previously approved if found by him after hearing to be misleading or not in the public interest.
7 2. Cancellation of the association's policies shall be governed by law.
8 3. The rates, rating plans, rating rules, rating classifications and territories applicable to
9 the insurance written by the association and statistics relating thereto shall be subject to the
10 casualty rate regulation law giving due consideration to the past and prospective loss and expense
11 experience in medical malpractice insurance of all of the insurers, trends in the frequency and
12 severity of losses, the investment income of the association, and such other information as the
13 director may require. All rates shall be actuarially sound and shall be calculated to be
14 self-supporting.
15 4. In the event sufficient funds are not available for the sound financial operation of the
16 association, additional funds shall be raised by making an assessment on all member companies.
17 Assessments shall be made against members in the proportion that the net direct premiums for
18 the preceding calendar year of each member for each line of insurance requiring it to participate
19 in said plan bear to the net direct premiums for the preceding calendar year of all members for
20 such line of insurance; provided that, assessments made pursuant to sections 383.150 to 383.195
21 shall not exceed in any calendar year one percent of each member's net direct premiums
22 attributable to the line or lines of insurance the writing of which requires it to be a member.
23 5. All members shall deduct the amount of any assessment from past or future premium
24 taxes due but not yet paid the state.
25 6. Any funds which result from policyholder premiums and other revenues received in
26 excess of those funds required for reserves, loss payments and expenses incurred and accrued
27 at the end of any calendar year shall be paid proportionately to the general fund to the extent that
28 credit against premium tax liability has been granted pursuant to subsection 5 of this section and
29 to members which have been assessed but have not received tax credits as provided in subsection
30 5 of this section.
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383.165. Each policyholder shall pay to the association in the first policy year, in
2 addition to the premium payment due for insurance through the association, an amount equal to
3 said premium payment. Such charge shall be separately stated in the policy. Such charge shall
4 be paid in the form of cash or cash equivalent and not in the form of a promissory note.
383.300. 1. As used in sections 383.300 to 383.316, the term "insurer" or "insurers"
2 means any insurance company, mutual insurance company, medical malpractice
3 association, any entity created under this chapter, or other entity providing any insurance
4 to any health care provider, as defined in section 538.205, RSMo, practicing medicine in
5 the state of Missouri, against claims for malpractice or professional negligence; provided,
6 however, that the term "insurer" or "insurers" shall not mean any surplus lines insurer
7 operating under chapter 384, RSMo, or any entity to the extent it is self-insuring its
8 exposure to medical malpractice liability.
9 2. Notwithstanding any other provision of law, no insurer shall, with regards to
10 medical malpractice insurance, as defined in section 383.150:
11 (1) Charge an assessment or surcharge, or increase the premium charges, by more
12 than ten percent for such insurance without first providing written notice by United States
13 mail to the insured at least sixty days prior to the effective date of such actions; provided,
14 however, such notice is not required if the premium change is due to the request of the
15 insured;
16 (2) Fail or refuse to renew such insurance without first providing written notice by
17 United States mail to the insured at least sixty days prior to the effective date of such
18 actions, unless such failure or refusal to renew is based upon a failure to pay sums due or
19 a termination or suspension of the health care provider's license to practice medicine in the
20 state of Missouri, termination of the insurer's reinsurance program, or a material change
21 in the nature of the insured's health care practice; or
22 (3) Cease the issuance of such policies of insurance in the state of Missouri without
23 first providing written notice by United States mail to the insured and to the Missouri
24 department of insurance at least one hundred eighty days prior to the effective date of such
25 actions.
26 3. Any insurer that fails to provide the notice required under subdivisions (1) and
27 (2) of subsection 2 of this section shall, at the option of the insured, continue the coverage
28 in accordance with the provisions of subdivision (2) of subsection 6 of section 379.321,
29 RSMo.
383.302. The department of insurance shall, prior to October 1, 2006, establish
2 health care provider classification codes and risk-reporting categories for medical
3 malpractice insurance premiums, as defined in section 383.150, and shall establish
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regulations for the reporting of all premiums 4 charged by such categories and/or codes. The
5 department of insurance shall consider the available history or prior court judgments for
6 claims under this chapter, in each county and any city not within a county in this state and
7 the current risk categories in use by insurers in establishing the risk reporting categories.
383.304. All insurers shall, with regards to medical malpractice insurance as
2 defined in section 383.150, provide to the department of insurance, beginning on January
3 1, 2007, and not less than annually thereafter, an accurate report as to the actual rates,
4 including assessments levied against members, excluding members whose practice is part5
time, charged by such company for such insurance, for each of the risk-reporting
6 categories and/or codes established in section 383.302.
383.306. Not later than June 1, 2007, and at least annually thereafter, the
2 department of insurance shall, utilizing the information provided under section 383.304
3 establish and publish, a market rate reflecting the median of the actual rates charged for
4 each of the risk-reporting categories for the preceding year by all insurers.
383.308. For purposes of sections 383.308 to 383.316, the following terms mean:
2 (1) "Base rate", the premium rate designed to reflect the average aggregate
3 experience of a particular health care provider classification prior to adjustment for
4 individual risk characteristics;
5 (2) "Schedule rating or individual risk rating credits or debits", rating factors or
6 adjustments applied to an insurer's base rates to increase or decrease the premium of an
7 individual insured or unit or exposure to adjust the base rate to account for individual risk
8 characteristics not reflected in the base rate.
383.310. 1. The department of insurance shall establish reporting standards for
2 insurers by which the insurers shall report their base rates and schedule of rating or
3 individual risk rating credits or debits for the health care provider classifications and/or
4 codes designated by the department, in whatever categories the department determines to
5 be actuarially appropriate.
6 2. The department shall collect the information required in subsection 1 of this
7 section and shall create a database to be made available to the public that compares the
8 base rates and schedule of rating or individual risk rating credits or debits charged by each
9 insurer actively writing a particular health care provider classification code. Such
10 database may distinguish between base rates for different types of coverage.
383.312. 1. The department of insurance shall establish reporting standards for
2 insurers by which the insurers, or an advisory organization designated by the department,
3 shall annually report such Missouri medical malpractice insurance actual premium, actual
4 premium deviation from the base rate, loss, exposure, and other information as the
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department may require for the purpose 5 of compiling a Missouri medical malpractice
6 ratemaking database. The reports shall be in a format determined by the department.
7 Such information shall be considered confidential information and shall be a closed record
8 under chapter 610, RSMo.
9 2. The department shall collect the information required in subsection 1 of this
10 section and compile it in a manner appropriate for assisting Missouri medical malpractice
11 insurers in developing their future base rates, schedule rating or individual risk rating
12 factors, and other aspects of their rating plans. In compiling the information and making
13 it available to Missouri insurers and the public, the department shall remove any
14 individualized information that identifies a particular insurer or provider as the source or
15 subject of the information. The department may combine such information with similar
16 information obtained through insurer examinations so as to cover periods of more than one
17 year.
383.314. After August 28, 2006, when evaluating the base rates of any medical
2 malpractice insurer, including any insurer newly admitted to write medical malpractice
3 insurance in Missouri or any insurer entering such line, in order to determine whether
4 such rates are excessive, inadequate, or unfairly discriminatory, the director of insurance
5 shall, in addition to any other methods of evaluation, use the base rates collected under
6 section 383.310 as a basis for comparison.
383.316. 1. If the director finds that any insurer or filing organization has violated
2 any provision of sections 383.300 to 383.316, the director may impose a penalty of not more
3 than five hundred dollars for each violation, but if the director finds the violation to be
4 willful, the director may impose a penalty of not more than five thousand dollars for each
5 violation. Such penalties may be in addition to any other penalty provided by law.
6 2. The director may suspend the license of any rating organization or insurer that
7 fails to comply with an order of the director relating to sections 383.300 to 383.316 within
8 the time limited by such order, or any extension thereof which the director may grant. The
9 director shall not suspend the license of any rating organization or insurer for failure to
10 comply with an order until the time prescribed for an appeal therefrom has expired or if
11 an appeal has been taken, until the order has been affirmed. The director may determine
12 when a suspension of license shall become effective and it shall remain in effect for a period
13 fixed by the director, unless the director modifies or rescinds such suspension or until the
14 order upon which such suspension is based is modified, rescinded, or reversed.
15 3. No penalty shall be imposed or no license shall be suspended or revoked except
16 upon a written order of the director, stating the director's findings, made after a hearing
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held upon not less than ten days' written notice 17 to such person or organization specifying
18 the alleged violation.
383.330. The department of insurance shall promulgate rules defining the term
2 "claim" as it applies to claims made for medical malpractice. Any rule or portion of a rule,
3 as that term is defined in section 536.010, RSMo, that is created under the authority
4 delegated in this section shall become effective only if it complies with and is subject to all
5 of the provisions of chapter 536, RSMo, and, if applicable, section 536.028, RSMo. This
6 section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the
7 general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or
8 to disapprove and annul a rule are subsequently held unconstitutional, then the grant of
9 rulemaking authority and any rule proposed or adopted after August 28, 2006, shall be
10 invalid and void.
383.335. By January 1, 2011, all insurers writing medical malpractice insurance in
2 this state shall offer medical malpractice policies of insurance which are written so as to
3 apply to injury which results from acts or omissions occurring during the policy period,
4 regardless of the timing of the filing of a claim based on such acts and omissions.