SECOND REGULAR SESSION
HOUSE BILL NO. 1389
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES COOPER (155) (Sponsor), SCHAAF, PAGE, PORTWOOD,
RUPP, FLOOK, BRINGER, DONNELLY AND THRELKELD (Co-sponsors).
Read 1st time January 12, 2006 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
4039L.01I
AN ACT
To repeal section 105.711, RSMo, and to enact in lieu thereof one new section relating to the
state legal expense fund.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Section 105.711, RSMo, is repealed and one new section enacted in lieu
thereof, to be known as section 105.711, to read as follows:
105.711. 1. There is hereby created a "State Legal Expense Fund" which shall consist
of moneys appropriated to the fund by the general assembly and moneys otherwise credited to
such fund pursuant to section 105.716.
2. Moneys in the state legal expense fund shall be available for the payment of any claim
or any amount required by any final judgment rendered by a court of competent jurisdiction
against:
(1) The state of Missouri, or any agency of the state, pursuant to section 536.050 or
536.087, RSMo, or section 537.600, RSMo;
(2) Any officer or employee of the state of Missouri or any agency of the state, including,
without limitation, elected officials, appointees, members of state boards or commissions, and
members of the Missouri national guard upon conduct of such officer or employee arising out
of and performed in connection with his or her official duties on behalf of the state, or any
agency of the state, provided that moneys in this fund shall not be available for payment of
claims made under chapter 287, RSMo; or
(3) (a) Any physician, psychiatrist, pharmacist, podiatrist, dentist, nurse, or other health
care provider licensed to practice in Missouri under the provisions of chapter 330, 332, 334, 335,
336, 337 or 338, RSMo, who is employed by the state of Missouri or any agency of the state,
under formal contract to conduct disability reviews on behalf of the department of elementary
and secondary education or provide services to patients or inmates of state correctional facilities
on a part-time basis, and any physician, psychiatrist, pharmacist, podiatrist, dentist, nurse, or
other health care provider licensed to practice in Missouri under the provisions of chapter 330,
332, 334, 335, 336, 337, or 338, RSMo, who is under formal contract to provide services to
patients or inmates at a county jail on a part-time basis;
(b) Any physician licensed to practice medicine in Missouri under the provisions of
chapter 334, RSMo, and his professional corporation organized pursuant to chapter 356, RSMo,
who is employed by or under contract with a city or county health department organized under
chapter 192, RSMo, or chapter 205, RSMo, or a city health department operating under a city
charter, or a combined city-county health department to provide services to patients for medical
care caused by pregnancy, delivery, and child care, if such medical services are provided by the
physician pursuant to the contract without compensation or the physician is paid from no other
source than a governmental agency except for patient co-payments required by federal or state
law or local ordinance;
(c) Any physician licensed to practice medicine in Missouri under the provisions of
chapter 334, RSMo, who is employed by or under contract with a federally funded community
health center organized under Section 315, 329, 330 or 340 of the Public Health Services Act (42
U.S.C. 216, 254c) to provide services to patients for medical care caused by pregnancy, delivery,
and child care, if such medical services are provided by the physician pursuant to the contract
or employment agreement without compensation or the physician is paid from no other source
than a governmental agency or such a federally funded community health center except for
patient co-payments required by federal or state law or local ordinance. In the case of any claim
or judgment that arises under this paragraph, the aggregate of payments from the state legal
expense fund shall be limited to a maximum of one million dollars for all claims arising out of
and judgments based upon the same act or acts alleged in a single cause against any such
physician, and shall not exceed one million dollars for any one claimant;
(d) Any physician licensed pursuant to chapter 334, RSMo, who is affiliated with and
receives no compensation from a nonprofit entity qualified as exempt from federal taxation under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, which offers a free health
screening in any setting or any physician, nurse, physician assistant, dental hygienist, [or] dentist,
or other health care provider licensed or registered pursuant to chapter 330, 331, 332, [RSMo,
chapter] 334, [RSMo, or chapter] 335, 336, 337, or 338, RSMo, who provides [medical, dental,
or nursing treatment] health care services within the scope of his or her license or registration
at a city or county health department organized under chapter 192, RSMo, or chapter 205, RSMo,
a city health department operating under a city charter, or a combined city-county health
department, or a nonprofit community health center qualified as exempt from federal taxation
under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, if such [treatment
is] services are restricted to primary care and preventive health services, provided that such
[treatment] services shall not include the performance of an abortion, and if such [medical,
dental, or nursing] health services are provided by the [physician, dentist, physician assistant,
dental hygienist, or nurse] health care provider licensed or registered under chapter 330,
331, 332, 334, 335, 336, 337, or 338, RSMo, without compensation. Medicaid or medicare
payments for primary care and preventive health services provided by a [physician, dentist,
physician assistant, dental hygienist, or nurse] health care provider licensed or registered
under chapter 330, 331, 332, 334, 335, 336, 337, or 338, RSMo, who volunteers at a free
health clinic is not compensation for the purpose of this section if the total payment is assigned
to the free health clinic. For the purposes of the section, "free health clinic" means a nonprofit
community health center qualified as exempt from federal taxation under Section 501 (c)(3) of
the Internal Revenue Code of 1987, as amended, that provides primary care and preventive
health services to people without health insurance coverage for the services provided without
charge. In the case of any claim or judgment that arises under this paragraph, the aggregate of
payments from the state legal expense fund shall be limited to a maximum of five hundred
thousand dollars, for all claims arising out of and judgments based upon the same act or acts
alleged in a single cause and shall not exceed five hundred thousand dollars for any one claimant,
and insurance policies purchased pursuant to the provisions of section 105.721 shall be limited
to five hundred thousand dollars. Liability or malpractice insurance obtained and maintained in
force by or on behalf of any [physician, dentist, physician assistant, dental hygienist, or nurse]
health care provider licensed or registered under chapter 330, 331, 332, 334, 335, 336, 337,
or 338, RSMo, shall not be considered available to pay that portion of a judgment or claim for
which the state legal expense fund is liable under this paragraph; or
(e) Any physician, nurse, physician assistant, dental hygienist, or dentist licensed or
registered to practice medicine, nursing, or dentistry or to act as a physician assistant or dental
hygienist in Missouri under the provisions of chapter 332, RSMo, chapter 334, RSMo, or chapter
335, RSMo, who provides medical, nursing, or dental treatment within the scope of his license
or registration to students of a school whether a public, private, or parochial elementary or
secondary school, if such physician's treatment is restricted to primary care and preventive health
services and if such medical, dental, or nursing services are provided by the physician, dentist,
physician assistant, dental hygienist, or nurse without compensation. In the case of any claim
or judgment that arises under this paragraph, the aggregate of payments from the state legal
expense fund shall be limited to a maximum of five hundred thousand dollars, for all claims
arising out of and judgments based upon the same act or acts alleged in a single cause and shall
not exceed five hundred thousand dollars for any one claimant, and insurance policies purchased
pursuant to the provisions of section 105.721 shall be limited to five hundred thousand dollars;
or
(f) Any physician licensed under chapter 334, RSMo, or dentist licensed under
chapter 332, RSMo, providing specialty care without compensation to an individual
referred to his or her care by a city or county health department organized under chapter
192 or 205, RSMo, a city health department operating under a city charter, or a combined
city-county health department or a nonprofit community health center qualified as exempt
from federal taxation under section 501(c)(3) of the Internal Revenue Code of 1986, as
amended, or a federally funded community health center organized under Section 315, 329,
330, or 340 of the Public Health Services Act (42 U.S.C. Section 216, 254c) provided that
such treatment shall not include the performance of an abortion. In the case of any claim
or judgment that arises under this paragraph, the aggregate of payments from the state
legal expense fund shall be limited to a maximum of one million dollars, for all claims
arising out of and judgments based upon the same act or acts alleged in a single cause and
shall not exceed one million dollars for any one claimant, and insurance policies purchased
under the provisions of section 105.721 shall be limited to one million dollars. Liability or
malpractice insurance obtained and maintained in force by or on behalf of any health care
provider licensed or registered under chapter 332 or 334, RSMo, shall not be considered
available to pay that portion of a judgment or claim for which the state legal expense fund
is liable under this paragraph; or
(4) Staff employed by the juvenile division of any judicial circuit; or
(5) Any attorney licensed to practice law in the state of Missouri who practices law at
or through a nonprofit community social services center qualified as exempt from federal
taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or through
any agency of any federal, state, or local government, if such legal practice is provided by the
attorney without compensation. In the case of any claim or judgment that arises under this
subdivision, the aggregate of payments from the state legal expense fund shall be limited to a
maximum of five hundred thousand dollars for all claims arising out of and judgments based
upon the same act or acts alleged in a single cause and shall not exceed five hundred thousand
dollars for any one claimant, and insurance policies purchased pursuant to the provisions of
section 105.721 shall be limited to five hundred thousand dollars.
3. The department of health and senior services shall promulgate rules regarding contract
procedures and the documentation of care provided under paragraphs (b), (c), (d), [and] (e), and
(f) of subdivision (3) of subsection 2 of this section. The limitation on payments from the state
legal expense fund or any policy of insurance procured pursuant to the provisions of section
105.721, provided in subsection 7 of this section, shall not apply to any claim or judgment
arising under paragraph (a), (b), (c), (d), [or] (e), or (f) of subdivision (3) of subsection 2 of this
section. Any claim or judgment arising under paragraph (a), (b), (c), (d), [or] (e), or (f) of
subdivision (3) of subsection 2 of this section shall be paid by the state legal expense fund or any
policy of insurance procured pursuant to section 105.721, to the extent damages are allowed
under sections 538.205 to 538.235, RSMo. Liability or malpractice insurance obtained and
maintained in force by any [physician, dentist, physician assistant, dental hygienist, or nurse]
health care provider licensed under chapter 330, 331, 332, 334, 335, 336, 337, or 338,
RSMo, for coverage concerning his or her private practice and assets shall not be considered
available under subsection 7 of this section to pay that portion of a judgment or claim for which
the state legal expense fund is liable under paragraph (a), (b), (c), (d), [or] (e), or (f) of
subdivision (3) of subsection 2 of this section. However, a [physician, nurse, dentist, physician
assistant, or dental hygienist] health care provider licensed under chapter 330, 331, 332, 334,
335, 336, 337, or 338, RSMo, may purchase liability or malpractice insurance for coverage of
liability claims or judgments based upon care rendered under paragraphs (c), (d), [and] (e), and
(f) of subdivision (3) of subsection 2 of this section which exceed the amount of liability
coverage provided by the state legal expense fund under those paragraphs. Even if paragraph (a),
(b), (c), (d), [or] (e), or (f) of subdivision (3) of subsection 2 of this section is repealed or
modified, the state legal expense fund shall be available for damages which occur while the
pertinent paragraph (a), (b), (c), (d), [or] (e), or (f) of subdivision (3) of subsection 2 of this
section is in effect.
4. The attorney general shall promulgate rules regarding contract procedures and the
documentation of legal practice provided under subdivision (5) of subsection 2 of this section.
The limitation on payments from the state legal expense fund or any policy of insurance procured
pursuant to section 105.721 as provided in subsection 7 of this section shall not apply to any
claim or judgment arising under subdivision (5) of subsection 2 of this section. Any claim or
judgment arising under subdivision (5) of subsection 2 of this section shall be paid by the state
legal expense fund or any policy of insurance procured pursuant to section 105.721 to the extent
damages are allowed under sections 538.205 to 538.235, RSMo. Liability or malpractice
insurance otherwise obtained and maintained in force shall not be considered available under
subsection 7 of this section to pay that portion of a judgment or claim for which the state legal
expense fund is liable under subdivision (5) of subsection 2 of this section. However, an
attorney may obtain liability or malpractice insurance for coverage of liability claims or
judgments based upon legal practice rendered under subdivision (5) of subsection 2 of this
section that exceed the amount of liability coverage provided by the state legal expense fund
under subdivision (5) of subsection 2 of this section. Even if subdivision (5) of subsection 2 of
this section is repealed or amended, the state legal expense fund shall be available for damages
that occur while the pertinent subdivision (5) of subsection 2 of this section is in effect.
5. All payments shall be made from the state legal expense fund by the commissioner
of administration with the approval of the attorney general. Payment from the state legal expense
fund of a claim or final judgment award against a [physician, dentist, physician assistant, dental
hygienist, or nurse] health care provider licensed under chapter 330, 331, 332, 334, 335, 336,
337, or 338, RSMo, described in paragraph (a), (b), (c), (d), [or] (e), or (f) of subdivision (3) of
subsection 2 of this section, or against an attorney in subdivision (5) of subsection 2 of this
section, shall only be made for services rendered in accordance with the conditions of such
paragraphs. In the case of any claim or judgment against an officer or employee of the state or
any agency of the state based upon conduct of such officer or employee arising out of and
performed in connection with his or her official duties on behalf of the state or any agency of the
state that would give rise to a cause of action under section 537.600, RSMo, the state legal
expense fund shall be liable, excluding punitive damages, for:
(1) Economic damages to any one claimant; and
(2) Up to three hundred fifty thousand dollars for noneconomic damages.
The state legal expense fund shall be the exclusive remedy and shall preclude any other civil
actions or proceedings for money damages arising out of or relating to the same subject matter
against the state officer or employee, or the officer's or employee's estate. No officer or
employee of the state or any agency of the state shall be individually liable in his or her personal
capacity for conduct of such officer or employee arising out of and performed in connection with
his or her official duties on behalf of the state or any agency of the state. The provisions of this
subsection shall not apply to any defendant who is not an officer or employee of the state or any
agency of the state in any proceeding against an officer or employee of the state or any agency
of the state. Nothing in this subsection shall limit the rights and remedies otherwise available
to a claimant under state law or common law in proceedings where one or more defendants is
not an officer or employee of the state or any agency of the state.
6. The limitation on awards for noneconomic damages provided for in this subsection
shall be increased or decreased on an annual basis effective January first of each year in
accordance with the Implicit Price Deflator for Personal Consumption Expenditures as published
by the Bureau of Economic Analysis of the United States Department of Commerce. The current
value of the limitation shall be calculated by the director of the department of insurance, who
shall furnish that value to the secretary of state, who shall publish such value in the Missouri
Register as soon after each January first as practicable, but it shall otherwise be exempt from the
provisions of section 536.021, RSMo.
7. Except as provided in subsection 3 of this section, in the case of any claim or
judgment that arises under sections 537.600 and 537.610, RSMo, against the state of Missouri,
or an agency of the state, the aggregate of payments from the state legal expense fund and from
any policy of insurance procured pursuant to the provisions of section 105.721 shall not exceed
the limits of liability as provided in sections 537.600 to 537.610, RSMo. No payment shall be
made from the state legal expense fund or any policy of insurance procured with state funds
pursuant to section 105.721 unless and until the benefits provided to pay the claim by any other
policy of liability insurance have been exhausted.
8. The provisions of section 33.080, RSMo, notwithstanding, any moneys remaining to
the credit of the state legal expense fund at the end of an appropriation period shall not be
transferred to general revenue.
9. Any rule or portion of a rule, as that term is defined in section 536.010, RSMo, that
is promulgated under the authority delegated in sections 105.711 to 105.726 shall become
effective only if it has been promulgated pursuant to the provisions of chapter 536, RSMo.
Nothing in this section shall be interpreted to repeal or affect the validity of any rule filed or
adopted prior to August 28, 1999, if it fully complied with the provisions of chapter 536, RSMo.
This section and chapter 536, RSMo, are nonseverable and if any of the powers vested with the
general assembly pursuant to chapter 536, RSMo, to review, to delay the effective date, or to
disapprove and annul a rule are subsequently held unconstitutional, then the grant of rulemaking
authority and any rule proposed or adopted after August 28, 1999, shall be invalid and void.
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