093_HB0086

 
                                     LRB093 02289 DRJ 02705 b

 1        AN ACT concerning liability for the provision  of  health
 2    care.

 3        Be  it  enacted  by  the People of the State of Illinois,
 4    represented in the General Assembly:

 5        Section 1.  Short title.  This Act may be  cited  as  the
 6    Health Care Entity Liability Act.

 7        Section 5.  Definitions.  In this Act:
 8        "Appropriate  and medically necessary" means the standard
 9    for health care services  as  determined  by  physicians  and
10    health  care  providers  in  accordance  with  the prevailing
11    practices  and  standards  of  the  medical  profession   and
12    community.
13        "Enrollee"  means  an  individual  who  is  enrolled in a
14    health care plan, including covered dependents.
15        "Health care plan" means  any  plan  whereby  any  person
16    undertakes to provide, arrange for, pay for, or reimburse any
17    part of the cost of any health care services.
18        "Health  care  provider"  means  a  person  or  entity as
19    defined in Section 2-1003 of the Code of Civil Procedure.
20        "Health care treatment decision"  means  a  determination
21    made  when  medical  services  are  actually  provided by the
22    health care plan and a decision that affects the  quality  of
23    the  diagnosis,  care,  or  treatment  provided to the plan's
24    insureds or enrollees.
25        "Health insurance carrier" means an authorized  insurance
26    company that issues policies of accident and health insurance
27    under the Illinois Insurance Code.
28        "Health  maintenance  organization" means an organization
29    licensed under the Health Maintenance Organization Act.
30        "Managed care entity" means  any  entity  that  delivers,
31    administers,  or  assumes  risk for health care services with
 
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 1    systems or techniques to control or  influence  the  quality,
 2    accessibility,  utilization,  or  costs  and  prices of those
 3    services to a  defined  enrollee  population,  but  does  not
 4    include  an employer acting on behalf of its employees or the
 5    employees  of  one  or  more   subsidiaries   or   affiliated
 6    corporations of the employer.
 7        "Ordinary  care" means, in the case of a health insurance
 8    carrier, health maintenance  organization,  or  managed  care
 9    entity,  that degree of care that a health insurance carrier,
10    health maintenance organization, or managed  care  entity  of
11    ordinary  prudence  would  use  under  the  same  or  similar
12    circumstances.   In  the case of a person who is an employee,
13    agent,  ostensible  agent,  or  representative  of  a  health
14    insurance  carrier,  health  maintenance   organization,   or
15    managed  care  entity,  "ordinary  care" means that degree of
16    care  that  a  person  of  ordinary  prudence  in  the   same
17    profession,  specialty,  or  area  of practice as such person
18    would use in the same or similar circumstances.
19        "Physician" means: (1) an individual licensed to practice
20    medicine in  this  State;  (2)  a  professional  association,
21    professional   service   corporation,   partnership,  medical
22    corporation,  or  limited  liability  company,  entitled   to
23    lawfully  engage  in the practice of medicine; or (3) another
24    entity wholly owned by physicians.

25        Section 10.  Duty of care; liability; applicability.
26        (a)  A  health  insurance  carrier,  health   maintenance
27    organization,  or other managed care entity for a health care
28    plan has the duty  to  exercise  ordinary  care  when  making
29    health care treatment decisions and is liable for damages for
30    harm  to  an  insured  or  enrollee proximately caused by its
31    failure to exercise such ordinary care.
32        (b)  A  health  insurance  carrier,  health   maintenance
33    organization,  or other managed care entity for a health care
 
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 1    plan is also liable for damages for harm  to  an  insured  or
 2    enrollee  proximately  caused  by  the  health care treatment
 3    decisions made by its:
 4             (1)  employees;
 5             (2)  agents;
 6             (3)  ostensible agents; or
 7             (4)  representatives who are acting  on  its  behalf
 8        and  over  whom it has the right to exercise influence or
 9        control or has actually exercised  influence  or  control
10        that results in the failure to exercise ordinary care.
11        (c)  The  standards  in subsections (a) and (b) create no
12    obligation on the  part  of  the  health  insurance  carrier,
13    health maintenance organization, or other managed care entity
14    to  provide  to  an insured or enrollee treatment that is not
15    covered by the health care plan of the entity.
16        (d)  A  health  insurance  carrier,  health   maintenance
17    organization,  or  managed  care  entity  may  not  remove  a
18    physician  or health care provider from its plan or refuse to
19    renew the physician or health care provider with its plan for
20    advocating on behalf  of  an  enrollee  for  appropriate  and
21    medically necessary health care for the enrollee.
22        (e)  A   health  insurance  carrier,  health  maintenance
23    organization, or other managed care entity may not enter into
24    a contract with a physician, hospital, or other  health  care
25    provider   or   pharmaceutical   company  which  includes  an
26    indemnification or hold  harmless  clause  for  the  acts  or
27    conduct  of  the health insurance carrier, health maintenance
28    organization,  or  other  managed  care  entity.   Any   such
29    indemnification  or  hold  harmless  clause  in  an  existing
30    contract is hereby declared void.
31        (f)  Nothing  in  any  law  of  this  State prohibiting a
32    health insurance carrier, health maintenance organization, or
33    other managed care entity from practicing medicine  or  being
34    licensed to practice medicine may be asserted as a defense by
 
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 1    the    health    insurance    carrier,   health   maintenance
 2    organization, or other  managed  care  entity  in  an  action
 3    brought against it pursuant to this Section or any other law.
 4        (g)  In  an  action  against  a health insurance carrier,
 5    health maintenance organization, or managed  care  entity,  a
 6    finding  that a physician or other health care provider is an
 7    employee, agent, ostensible agent, or representative  of  the
 8    health insurance carrier, health maintenance organization, or
 9    managed  care  entity shall not be based solely on proof that
10    the person's name appears in a listing of approved physicians
11    or health  care  providers  made  available  to  insureds  or
12    enrollees under a health care plan.
13        (h)  This  Act  does  not  apply to workers' compensation
14    insurance coverage subject to the Workers' Compensation Act.
15        (i)  This Act applies  only  to  causes  of  action  that
16    accrue on or after the effective date of this Act.
17        (j)  Before  bringing  an  action  under  this Section, a
18    person must, to the extent applicable,  exercise  any  appeal
19    and review procedures available under the Managed Care Reform
20    and Patient Rights Act.

21        Section    15.  Determination   of   medical   necessity;
22    liability.
23        (a)  The  determination  of  whether   a   procedure   or
24    treatment is medically necessary must be made by a physician.
25        (b)  If  the  physician  determines  that  a procedure or
26    treatment is medically necessary, the health care  plan  must
27    pay for the procedure or treatment.

28        Section  99.  Effective date.  This Act takes effect upon
29    becoming law.