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THE BILL ITSELF

CS/CS/HB 1291

Florida Birth-Related Neurological Injury Compensation Association

VERSION H 1291 c2 · BACK TO THE SUMMARY · OFFICIAL RECORD

underlined language is being added; struck language is being deleted. Line numbers are the Legislature's own — the same ones amendments cite.

1 A bill to be entitled
2 An act relating to the Florida Birth-Related
3 Neurological Injury Compensation Association; amending
4 s. 409.910, F.S.; requiring the agency to recover the
5 full amount of medical assistance from the
6 neurological injury compensation association; amending
7 s. 766.302, F.S.; providing and revising definitions;
8 removing a limitation on time subject to plan
9 compensation; amending s. 766.303, F.S.; revising
10 terminology; amending s. 766.305, F.S.; revising
11 provisions relating to filing claims; amending s.
12 766.309, F.S.; conforming a cross-reference; amending
13 s. 766.31, F.S.; revising items that are eligible for
14 an award providing compensation; requiring
15 compensation to be provided for certain actual
16 expenses; requiring compensation for the costs of
17 major medical health coverage; requiring the plan to
18 reimburse certain payments made for services provided;
19 exempting expenses for professional custodial care in
20 certain circumstances; requiring that, upon entry of a
21 final order for compensation, parents or legal
22 guardians obtain private health insurance or submit an
23 application for the Medicaid program; amending s.
24 766.314, F.S.; requiring the directors to maintain a
25 plan of operation; requiring certain assessments to be
26 paid into the Florida Birth-Related Neurological
27 Injury Compensation Association at certain times for
28 certain purposes; requiring the plan of operation to
29 include a provision for fraud; removing obsolete
30 provisions; revising provisions relating to an
31 actuarial valuation of the plan; requiring the
32 association to submit quarterly estimates; requiring
33 the association to state whether the plan is
34 actuarially sound; authorizing a transfer of funds to
35 the association from the Insurance Regulatory Trust
36 Fund if the plan is not actuarially sound; requiring
37 the association to require each entity to issue
38 casualty insurance and pay an annual assessment;
39 providing requirements for annual assessments;
40 requiring an increase in assessments after certain
41 findings; requiring the association to determine
42 whether the plan is actuarially sound after certain
43 revisions; providing criteria for such determination;
44 requiring notification to the Governor, Legislature,
45 and Office of Insurance Regulation after certain
46 findings; providing that the plan is not the exclusive
47 remedy if it is prohibited from accepting new claims;
48 amending s. 766.315, F.S.; revising membership of the
49 association's board of directors; prohibiting the
50 board of directors from creating new benefits or
51 expanding existing benefits under the plan under
52 certain circumstances; revising requirements for
53 certain reports of the association; providing an
54 effective date.
56 Be It Enacted by the Legislature of the State of Florida:
58 Section 1. Paragraph (a) of subsection (7) of section
59 409.910, Florida Statutes, is amended to read:
60 409.910 Responsibility for payments on behalf of Medicaid-
61 eligible persons when other parties are liable.—
62 (7) The agency shall recover the full amount of all
63 medical assistance provided by Medicaid on behalf of the
64 recipient to the full extent of third-party benefits.
65 (a) Recovery of such benefits shall be collected directly
66 from:
67 1. Any third party;
68 2. The recipient or legal representative, if he or she has
69 received third-party benefits;
70 3. The provider of a recipient's medical services if
71 third-party benefits have been recovered by the provider;
72 notwithstanding any provision of this section, to the contrary,
73 however, no provider shall be required to refund or pay to the
74 agency any amount in excess of the actual third-party benefits
75 received by the provider from a third-party payor for medical
76 services provided to the recipient; or
77 4. Any person who has received the third-party benefits;
78 or
79 5. The Florida Birth-Related Neurological Injury
80 Compensation Association for plan participant costs incurred
81 under s. 766.31.
83 The provisions of this subsection do not apply to any proceeds
84 received by the state, or any agency thereof, pursuant to a
85 final order, judgment, or settlement agreement, in any matter in
86 which the state asserts claims brought on its own behalf, and
87 not as a subrogee of a recipient, or under other theories of
88 liability. The provisions of this subsection do not apply to any
89 proceeds received by the state, or an agency thereof, pursuant
90 to a final order, judgment, or settlement agreement, in any
91 matter in which the state asserted both claims as a subrogee and
92 additional claims, except as to those sums specifically
93 identified in the final order, judgment, or settlement agreement
94 as reimbursements to the recipient as expenditures for the named
95 recipient on the subrogation claim.
96 Section 2. Section 766.302, Florida Statutes, is amended
97 to read:
98 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
99 766.301-766.316, the term:
100 (1) "Actuarially sound" means that the total plan assets
101 available to fund future liabilities are equal to or greater
102 than 90 percent of the present value of total estimated
103 liabilities excluding any risk margin.
104 (2)(4) "Administrative law judge" means an administrative
105 law judge appointed by the division.
106 (3)(1) "Association" means the Florida Birth-Related
107 Neurological Injury Compensation Association established in s.
108 766.315 to administer the Florida Birth-Related Neurological
109 Injury Compensation Plan and the plan of operation established
110 in s. 766.314.
111 (4)(2) "Birth-related neurological injury" means injury to
112 the brain or spinal cord of a live infant weighing at least
113 2,500 grams for a single gestation or, in the case of a multiple
114 gestation, a live infant weighing at least 2,000 grams at birth
115 caused by oxygen deprivation or mechanical injury occurring in
116 the course of labor, delivery, or resuscitation in the immediate
117 postdelivery period in a hospital, which renders the infant
118 permanently and substantially mentally and physically impaired.
119 This definition shall apply to live births only and does shall
120 not include disability or death caused by genetic or congenital
121 abnormality.
122 (5)(3) "Claimant" means any person who files a claim
123 pursuant to s. 766.305 for compensation for a birth-related
124 neurological injury to an infant. Such a claim may be filed by
125 any legal representative on behalf of an injured infant; and, in
126 the case of a deceased infant, the claim may be filed by an
127 administrator, personal representative, or other legal
128 representative thereof.
129 (6)(5) "Division" means the Division of Administrative
130 Hearings of the Department of Management Services.
131 (7)(10) "Family residential or custodial care" means care
132 normally rendered by trained professional attendants which is
133 beyond the scope of child care duties, but which is provided by
134 family members. Family members who provide nonprofessional
135 residential or custodial care may not be compensated under this
136 act for care that falls within the scope of child care duties
137 and other services normally and gratuitously provided by family
138 members. Family residential or custodial care shall be performed
139 only at the direction and control of a physician when such care
140 is medically necessary. Reasonable charges for expenses for
141 family residential or custodial care provided by a family member
142 shall be determined as follows:
143 (a) If the family member is not employed, the per-hour
144 value equals the federal minimum hourly wage.
145 (b) If the family member is employed and elects to leave
146 that employment to provide such care, The per-hour value of that
147 care shall equal the rates established by Medicaid for private
148 duty services provided by a home health aide. A family member or
149 a combination of family members providing care in accordance
150 with this definition may not be compensated for more than a
151 total of 10 hours per day. Family care is in lieu of
152 professional residential or custodial care, and no professional
153 residential or custodial care may be awarded for the period of
154 time during the day that family care is being provided.
155 (8)(9) "Family member" means a father, mother, or legal
156 guardian.
157 (9)(6) "Hospital" means any hospital licensed in Florida.
158 (10) "Office" means the Office of Insurance Regulation.
159 (11) "Participant" means the person who suffered a birth-
160 related neurological injury as an infant and who accepted
161 compensation under the plan by final order entered by an
162 administrative law judge pursuant to s. 766.309.
163 (12)(7) "Participating physician" means a physician
164 licensed in Florida to practice medicine who practices
165 obstetrics or performs obstetrical services either full time or
166 part time and who had paid or was exempted from payment at the
167 time of the injury the assessment required for participation in
168 the birth-related neurological injury compensation plan for the
169 year in which the injury occurred. Such term does shall not
170 apply to any physician who practices medicine as an officer,
171 employee, or agent of the Federal Government.
172 (13)(8) "Plan" means the Florida Birth-Related
173 Neurological Injury Compensation Plan established under s.
174 766.303.
175 (14) "Risk margin" means an additional, explicit allowance
176 above the best-estimate reserve to reflect uncertainty in future
177 claim payments, including variation in claimant life expectancy
178 and the number and cost of pending or unreported claims. The
179 risk margin is not included in the reserve amount used to
180 calculate the funding ratio.
181 Section 3. Section 766.303, Florida Statutes, is amended
182 to read:
183 766.303 Florida Birth-Related Neurological Injury
184 Compensation Plan; exclusiveness of remedy.—
185 (1) There is established the Florida Birth-Related
186 Neurological Injury Compensation Plan for the purpose of
187 providing compensation, irrespective of fault, for birth-related
188 neurological injuries injury claims. Such plan shall apply to
189 births occurring on or after January 1, 1989, and shall be
190 administered by the Florida Birth-Related Neurological Injury
191 Compensation Association.
192 (2) The rights and remedies granted by this plan on
193 account of a birth-related neurological injury shall exclude all
194 other rights and remedies of such infant, her or his personal
195 representative, family members parents, dependents, and next of
196 kin, at common law or otherwise, against any person or entity
197 directly involved with the labor, delivery, or immediate
198 postdelivery resuscitation during which such injury occurs,
199 arising out of or related to a medical negligence claim with
200 respect to such injury; except that a civil action may shall not
201 be foreclosed where there is clear and convincing evidence of
202 bad faith or malicious purpose or willful and wanton disregard
203 of human rights, safety, or property, provided that such suit is
204 filed prior to and in lieu of payment of an award under ss.
205 766.301-766.316. Such suit shall be filed before the award of
206 the division becomes conclusive and binding as provided for in
207 s. 766.311.
208 (3) Sovereign immunity is hereby waived on behalf of the
209 Florida Birth-Related Neurological Injury Compensation
210 Association solely to the extent necessary to assure payment of
211 compensation as provided in s. 766.31.
212 (4) The association shall administer the plan in a manner
213 that promotes and protects the health and best interests of
214 participants children with birth-related neurological injuries.
215 Section 4. Subsections (1) and (3) of section 766.305,
216 Florida Statutes, are amended to read:
217 766.305 Filing of claims and responses; medical
218 disciplinary review.—
219 (1) All claims filed for compensation under the plan must
220 shall commence by the claimant filing with the division a
221 petition that includes all of seeking compensation. Such
222 petition shall include the following information:
223 (a) The name and address of the legal representative and
224 the basis for her or his representation of the injured infant.
225 (b) The name and address of the injured infant.
226 (c) The name and address of any physician providing
227 obstetrical services who was present at the birth and the name
228 and address of the hospital at which the birth occurred.
229 (d) A description of the disability for which the claim is
230 made.
231 (e) The time and place the injury occurred.
232 (f) A brief statement of the facts and circumstances
233 surrounding the injury and giving rise to the claim.
234 (3) The claimant shall furnish to the Florida Birth-
235 Related Neurological Injury Compensation association the
236 following information, which must be filed with the association
237 within 10 days after the filing of the petition as set forth in
238 subsection (1):
239 (a) All available relevant medical records relating to the
240 birth-related neurological injury and a list identifying any
241 unavailable records known to the claimant and the reasons for
242 the records' unavailability.
243 (b) Appropriate assessments, evaluations, and prognoses
244 and such other records and documents as are reasonably necessary
245 for the determination of the amount of compensation to be paid
246 to, or on behalf of, the injured infant on account of the birth-
247 related neurological injury.
248 (c) Documentation of expenses and services incurred to
249 date which identifies any payment made for such expenses and
250 services and the payor.
251 (d) Documentation of any applicable private or
252 governmental source of services or reimbursement relative to the
253 impairments.
255 The information required by paragraphs (a)-(d) shall remain
256 confidential and exempt under the provisions of s. 766.315(6)(b)
257 s. 766.315(5)(b).
258 Section 5. Paragraph (a) of subsection (1) of section
259 766.309, Florida Statutes, is amended to read:
260 766.309 Determination of claims; presumption; findings of
261 administrative law judge binding on participants.—
262 (1) The administrative law judge shall make the following
263 determinations based upon all available evidence:
264 (a) Whether the injury claimed is a birth-related
265 neurological injury. If the claimant has demonstrated, to the
266 satisfaction of the administrative law judge, that the infant
267 has sustained a brain or spinal cord injury caused by oxygen
268 deprivation or mechanical injury and that the infant was thereby
269 rendered permanently and substantially mentally and physically
270 impaired, a rebuttable presumption shall arise that the injury
271 is a birth-related neurological injury as defined in s. 766.302
272 s. 766.302(2).
273 Section 6. Section 766.31, Florida Statutes, is amended to
274 read:
275 766.31 Administrative law judge awards for birth-related
276 neurological injuries; notice of award.—
277 (1) Upon determining that an infant has sustained a birth-
278 related neurological injury and that obstetrical services were
279 delivered by a participating physician at the birth, the
280 administrative law judge shall make an award providing
281 compensation for the following items relative to such injury:
282 (a) Actual expenses incurred since the date of birth for
283 medically necessary and reasonable:
284 1. Medical and hospital care and services.,
285 2. Habilitative services. and training,
286 3. Dental services.
287 4. Family residential or custodial care.,
288 5. Facility care. Professional residential, and
289 6. Nursing and home health custodial care. and service,
290 7. for medically necessary Drugs.,
291 8. Special equipment., and facilities, and
292 9. for Related travel.
293 10. Supplies.
294 (b) At a minimum, compensation must be provided for the
295 following medically necessary, as applicable, and reasonable
296 actual expenses:
297 1. Psychotherapeutic services for A total annual benefit
298 of up to $10,000 for immediate family members and other
299 relatives who have resided reside with the participant, which
300 are infant for psychotherapeutic services obtained from a
301 psychiatrist licensed under chapter 458 or chapter 459, a
302 provider providers licensed under chapter 490 or chapter 491, or
303 a psychiatrist or provider who has equivalent licensure by
304 another jurisdiction. This benefit for such family members and
305 relatives shall be up to a total of $10,000 annually during the
306 participant's lifetime and up to a total of $20,000 subsequent
307 to the participant's death.
308 2. For the life of the participant child, providing family
309 members parents or legal guardians with a reliable method of
310 transporting transportation for the care of the participant and
311 child or reimbursing the cost of upgrading an existing vehicle
312 to accommodate the participant's wheelchair and medically
313 necessary equipment child's needs when it becomes medically
314 necessary for wheelchair transportation. The mode of
315 transportation must take into account the special accommodations
316 required for the specific child. The plan may not limit such
317 transportation assistance based on the participant's child's age
318 or weight. The plan must replace any vehicle vans purchased by
319 the plan every 7 years or 150,000 miles, whichever comes first.
320 3. Housing assistance of up to $100,000 for the life of
321 the participant child, including, but not limited to, a down
322 payment on a new home, moving expenses, and home construction
323 and modification costs.
324 4. Legal costs associated with establishing and
325 maintaining guardianship for a participant.
326 (c)1. The costs of a health insurance policy or contract
327 that provides major medical or similar comprehensive health
328 coverage for the participant obtained pursuant to subsection
329 (3), including, but not limited to, the premium and out-of-
330 pocket costs. For participants enrolled in the state Medicaid
331 program, the plan must reimburse fee-for-service paid claims and
332 capitation payments, as applicable, for services provided to
333 such participants pursuant to this section and for the
334 administrative and support costs associated with the provided
335 medical assistance. Such funds shall be credited to the Agency
336 for Health Care Administration's Medical Care Trust Fund.
337 2. By December 31, 2026, the plan shall reimburse any
338 participant for reasonable, medically necessary care received by
339 the participant on or before June 30, 2026, which was reduced or
340 not paid by the plan because such participant did not have
341 health coverage.
342 (d)(b) However, the following expenses are not subject to
343 compensation:
344 1. Expenses for items or services that the participant
345 infant has received, or is entitled to receive, under the laws
346 of any state or the Federal Government, except to the extent
347 such exclusion may be prohibited by federal law.
348 2. Expenses for items or services that the participant
349 infant has received, or is contractually entitled to receive,
350 from any prepaid health plan, health maintenance organization,
351 or other private insuring entity.
352 3. Expenses for which the participant infant has received
353 reimbursement, or for which the participant infant is entitled
354 to receive reimbursement, under the laws of any state or the
355 Federal Government, except to the extent such exclusion may be
356 prohibited by federal law.
357 4. Expenses for which the participant infant has received
358 reimbursement, or for which the participant infant is
359 contractually entitled to receive reimbursement, pursuant to the
360 provisions of any health or sickness insurance policy or other
361 private insurance program.
362 5. Expenses for nursing, home health care, or family care
363 provided while care and supervision of the participant is
364 simultaneously being provided by another person or entity.
365 (e) Notwithstanding subparagraphs (d)2. and 4., the plan
366 may provide compensation for a medically necessary expense when
367 coverage secured under subsection (3) would not adequately meet
368 the participant's needs, would involve significant disruption in
369 continuity of care, or would be significantly burdensome to
370 access, provided the expense otherwise meets the requirements of
371 ss. 766.301-766.316.
372 (f)(c) Expenses included under paragraphs paragraph (a)
373 and (b) are limited to reasonable charges prevailing in the same
374 community for similar treatment of injured persons when such
375 treatment is paid for by the injured person.
376 (g)1. A family member The parents or legal guardians
377 receiving benefits under the plan may file a petition with the
378 division of Administrative Hearings to dispute the amount of
379 actual expenses reimbursed or a denial of reimbursement.
380 2. In the case of an alleged overpayment of an expense
381 reimbursement by the association to a family member, if the
382 family member does not agree that an overpayment has occurred,
383 the association may file a petition for division review of the
384 overpayment for a determination of the amount, if any, to be
385 recouped by the association.
386 (h)1.(d)1.a. Periodic payments of an award to the family
387 members parents or legal guardians of the participant infant
388 found to have sustained a birth-related neurological injury,
389 which award may not exceed $100,000. However, at the discretion
390 of the administrative law judge, such award may be made in a
391 lump sum. Beginning on January 1, 2021, the award may not exceed
392 $250,000, and each January 1 thereafter, the maximum award
393 authorized under this paragraph shall increase by 3 percent.
394 b. Parents or legal guardians who received an award
395 pursuant to this section before January 1, 2021, must receive a
396 retroactive payment in an amount sufficient to bring the total
397 award paid to the parents or legal guardians pursuant to sub-
398 subparagraph a. to $250,000. This additional payment may be made
399 in a lump sum or in periodic payments as designated by the
400 parents or legal guardians and must be paid by July 1, 2021.
401 2.a. Death benefit for the participant infant in an amount
402 of $50,000.
403 b. Parents or legal guardians who received an award
404 pursuant to this section, and whose child died since the
405 inception of the program, must receive a retroactive payment in
406 an amount sufficient to bring the total award paid to the
407 parents or legal guardians pursuant to sub-subparagraph a. to
408 $50,000. This additional payment may be made in a lump sum or in
409 periodic payments as designated by the parents or legal
410 guardians and must be paid by July 1, 2021.
411 (i)(e) Reasonable expenses incurred in connection with the
412 filing of a claim under ss. 766.301-766.316, including
413 reasonable attorney attorney's fees, which shall be subject to
414 the approval and award of the administrative law judge. In
415 determining an award for attorney attorney's fees, the
416 administrative law judge shall consider the following factors:
417 1. The time and labor required, the novelty and difficulty
418 of the questions involved, and the skill requisite to perform
419 the legal services properly.
420 2. The fee customarily charged in the locality for similar
421 legal services.
422 3. The time limitations imposed by the claimant or the
423 circumstances.
424 4. The nature and length of the professional relationship
425 with the claimant.
426 5. The experience, reputation, and ability of the lawyer
427 or lawyers performing services.
428 6. The contingency or certainty of a fee.
430 If there is Should there be a final determination of
431 compensability, and the claimants accept an award under this
432 section, the claimants shall are not be liable for any expenses,
433 including attorney fees, incurred in connection with the filing
434 of a claim under ss. 766.301-766.316 other than those expenses
435 awarded under this section.
436 (2) The award shall require the immediate payment of
437 expenses previously incurred and shall require that future
438 expenses be paid as incurred.
439 (3) A family member must continuously maintain
440 comprehensive major medical health coverage for the participant.
441 (a) If the participant does not have such coverage at the
442 time of entry of a final order by an administrative law judge
443 approving a claim for compensation, the family member must
444 obtain coverage within 60 days after entry of such order or
445 apply for Medicaid coverage within 30 days after entry of such
446 order.
447 (b) If the participant is determined to be ineligible for
448 Medicaid, the family member must obtain other coverage within 60
449 days after receiving the Medicaid application denial.
450 (c) A family member of an individual who is a participant
451 on June 30, 2026, must obtain the required coverage for the
452 participant by January 1, 2027.
453 (4)(3) A copy of the award shall be sent immediately by
454 registered or certified mail to each person served with a copy
455 of the petition under s. 766.305(2).
456 Section 7. Section 766.314, Florida Statutes, is amended
457 to read:
458 766.314 Assessments; plan of operation.—
459 (1) The assessments established pursuant to this section
460 shall be used to finance the Florida Birth-Related Neurological
461 Injury Compensation Plan.
462 (2) The assessments and appropriations dedicated to the
463 plan shall be administered by the Florida Birth-Related
464 Neurological Injury Compensation Association established in s.
465 766.315, in accordance with the following requirements:
466 (a) On or before July 1, 1988, The directors of the
467 association shall submit to the office Department of Insurance
468 for review and approval a plan of operation and any amendment
469 thereto which shall provide for the efficient administration of
470 the plan and for prompt processing of claims against and awards
471 made on behalf of the plan. The plan of operation shall include
472 provision for:
473 1. Establishment of necessary facilities;
474 2. Management of the funds collected on behalf of the
475 plan;
476 3. Processing of claims against the plan;
477 4. Assessment of the persons and entities listed in
478 subsections (4) and (7) (5) to pay awards and expenses, which
479 assessments shall be on an actuarially sound basis subject to
480 the limits set forth in subsections (4) and (5);
481 5. A fraud and overpayment prevention and detection
482 program; and
483 6.5. Any other matters necessary for the efficient
484 operation of the birth-related neurological injury compensation
485 plan.
486 (b) Amendments to the plan of operation may be made by the
487 directors of the plan, subject to the approval of the office of
488 Insurance Regulation of the Financial Services Commission.
489 (3) All assessments shall be deposited with the Florida
490 Birth-Related Neurological Injury Compensation association. The
491 funds collected by the association and any income therefrom
492 shall be disbursed only for the payment of awards under ss.
493 766.301-766.316 and for the payment of the reasonable expenses
494 of administering the plan.
495 (4) The following persons and entities shall pay into the
496 association assessments as follows an initial assessment in
497 accordance with the plan of operation:
498 (a)1. On or before October 1, 1988, Each hospital licensed
499 under chapter 395 shall pay an initial assessment of $50 per
500 infant delivered in that the hospital during the prior calendar
501 year, as reported to the Agency for Health Care Administration;
502 provided, however, that a hospital owned or operated by the
503 state or a county, special taxing district, or other political
504 subdivision of the state shall not be required to pay the
505 initial assessment or any assessment required by this subsection
506 or subsection (7) (5). The term "infant delivered" includes live
507 births and not stillbirths, but the term does not include
508 infants delivered by employees or agents of the board of
509 trustees of a state university, those born in a teaching
510 hospital as defined in s. 408.07, or those born in a teaching
511 hospital as defined in s. 395.806 that have been deemed by the
512 association as being exempt from assessments since fiscal year
513 1997 to fiscal year 2001. The initial assessment and any
514 assessment imposed pursuant to subsection (7) (5) may not
515 include any infant born to a charity patient (as defined by rule
516 of the Agency for Health Care Administration) or born to a
517 patient for whom the hospital receives Medicaid reimbursement,
518 if the sum of the annual charges for charity patients plus the
519 annual Medicaid contractuals of the hospital exceeds 10 percent
520 of the total annual gross operating revenues of the hospital.
521 The hospital is responsible for documenting, to the satisfaction
522 of the association, the exclusion of any birth from the
523 computation of the assessment. Upon demonstration of financial
524 need by a hospital, the association may provide for installment
525 payments of assessments.
526 2. Assessments are due, and hospitals shall pay, all
527 assessments required under this section by December 31 of the
528 calendar year immediately subsequent to the birth year.
529 (b)1.a. On or before October 15, 1988, All physicians
530 licensed pursuant to chapter 458 or chapter 459 as of October 1,
531 1988, other than participating physicians, shall be assessed an
532 annual initial assessment of $250.,
533 b. Payment for all assessments required under this
534 paragraph is due on or before December 31 of each year which
535 must be paid no later than December 1, 1988.
536 2. Any such physician who becomes licensed after September
537 30, 1988, and before January 1, 1989, shall pay into the
538 association an initial assessment of $250 upon licensure.
539 3. Any such physician who becomes licensed on or after
540 January 1, 1989, shall pay an initial assessment equal to the
541 most recent assessment made pursuant to this paragraph,
542 paragraph (5)(a), or paragraph (7)(b).
543 2.4. However, if the physician is a physician specified in
544 this subparagraph, the assessment is not applicable:
545 a. A resident physician, assistant resident physician, or
546 intern in an approved postgraduate training program, as defined
547 by the Board of Medicine or the Board of Osteopathic Medicine by
548 rule;
549 b. A retired physician who has withdrawn from the practice
550 of medicine but who maintains an active license as evidenced by
551 an affidavit filed with the Department of Health. Prior to
552 reentering the practice of medicine in this state, a retired
553 physician as herein defined must notify the Board of Medicine or
554 the Board of Osteopathic Medicine and pay the appropriate
555 assessments pursuant to this section;
556 c. A physician who holds a limited license pursuant to s.
557 458.317 and who is not being compensated for medical services;
558 d. A physician who is employed full time by the United
559 States Department of Veterans Affairs and whose practice is
560 confined to United States Department of Veterans Affairs
561 hospitals; or
562 e. A physician who is a member of the Armed Forces of the
563 United States and who meets the requirements of s. 456.024.
564 f. A physician who is employed full time by the State of
565 Florida and whose practice is confined to state-owned
566 correctional institutions, a county health department, or state-
567 owned mental health or developmental services facilities, or who
568 is employed full time by the Department of Health.
569 (c)1. On or before December 1, 1988, Each physician
570 licensed pursuant to chapter 458 or chapter 459 who wishes to
571 participate in the Florida Birth-Related Neurological Injury
572 Compensation Plan and who otherwise qualifies as a participating
573 physician under ss. 766.301-766.316 shall pay an annual initial
574 assessment of $5,000 and any assessment required under paragraph
575 (7)(c), if assessed. However, if the physician is either a
576 resident physician, assistant resident physician, or intern in
577 an approved postgraduate training program, as defined by the
578 Board of Medicine or the Board of Osteopathic Medicine by rule,
579 and is supervised in accordance with program requirements
580 established by the Accreditation Council for Graduate Medical
581 Education or the American Osteopathic Association by a physician
582 who is participating in the plan, such resident physician,
583 assistant resident physician, or intern is deemed to be a
584 participating physician without the payment of the assessment.
585 Participating physicians also include any employee of the board
586 of trustees of a state university who has paid the assessment
587 required by this paragraph and, if assessed, paragraph (7)(c)
588 (5)(a), and any certified nurse midwife supervised by such
589 employee. Participating physicians include any certified nurse
590 midwife who has paid 50 percent of the physician assessment
591 required by this paragraph and, if assessed, paragraph (7)(c),
592 (5)(a) and who is supervised by a participating physician who
593 has paid the assessment required by this paragraph and, if
594 assessed, paragraph (7)(c) (5)(a). Supervision for nurse
595 midwives shall require that the supervising physician will be
596 easily available and have a prearranged plan of treatment for
597 specified patient problems which the supervised certified nurse
598 midwife may carry out in the absence of any complicating
599 features. Any physician who elects to participate in such plan
600 on or after January 1, 1989, who was not a participating
601 physician at the time of such election to participate and who
602 otherwise qualifies as a participating physician under ss.
603 766.301-766.316 shall pay an additional initial assessment equal
604 to the most recent assessment made pursuant to this paragraph,
605 paragraph (5)(a), or paragraph (7)(b).
606 2. Payment of assessments required by this paragraph is
607 due on or before December 31 of each year for qualification as a
608 participating physician during the next calendar year. If
609 payment of the assessments is received by the association on or
610 before January 31 of any calendar year, the physician shall
611 qualify as a participating physician for that entire calendar
612 year. If the payment is received after January 31, the physician
613 shall qualify as a participating physician for that calendar
614 year only from the date the payment was received by the
615 association.
616 (d) Any hospital located in a county with a population in
617 excess of 1.1 million as of January 1, 2003, as determined by
618 the Agency for Health Care Administration under the Health Care
619 Responsibility Act, may elect to pay the assessments required by
620 paragraph (c) fee for the participating physician and the
621 certified nurse midwife if the hospital first determines that
622 the primary motivating purpose for making such payment is to
623 ensure coverage for the hospital's patients under the provisions
624 of ss. 766.301-766.316; however, no hospital may restrict any
625 participating physician or nurse midwife, directly or
626 indirectly, from being on the staff of hospitals other than the
627 staff of the hospital making the payment. Each hospital shall
628 file with the association an affidavit setting forth
629 specifically the reasons why the hospital elected to make the
630 payment on behalf of each participating physician and certified
631 nurse midwife. The payments authorized under this paragraph
632 shall be in addition to the assessment set forth in paragraph
633 (5)(a).
634 (5)(a) Beginning January 1, 1990, the persons and entities
635 listed in paragraphs (4)(b) and (c), except those persons or
636 entities who are specifically excluded from said provisions, as
637 of the date determined in accordance with the plan of operation,
638 taking into account persons licensed subsequent to the payment
639 of the initial assessment, shall pay an annual assessment in the
640 amount equal to the initial assessments provided in paragraphs
641 (4)(b) and (c). If payment of the annual assessment by a
642 physician is received by the association by January 31 of any
643 calendar year, the physician shall qualify as a participating
644 physician for that entire calendar year. If the payment is
645 received after January 31 of any calendar year, the physician
646 shall qualify as a participating physician for that calendar
647 year only from the date the payment was received by the
648 association. On January 1, 1991, and on each January 1
649 thereafter, the association shall determine the amount of
650 additional assessments necessary pursuant to subsection (7), in
651 the manner required by the plan of operation, subject to any
652 increase determined to be necessary by the Office of Insurance
653 Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on
654 each July 1 thereafter, the persons and entities listed in
655 paragraphs (4)(b) and (c), except those persons or entities who
656 are specifically excluded from said provisions, shall pay the
657 additional assessments which were determined on January 1.
658 Beginning January 1, 1990, the entities listed in paragraph
659 (4)(a), including those licensed on or after October 1, 1988,
660 shall pay an annual assessment of $50 per infant delivered
661 during the prior calendar year. The additional assessments which
662 were determined on January 1, 1991, pursuant to the provisions
663 of subsection (7) shall not be due and payable by the entities
664 listed in paragraph (4)(a) until July 1.
665 (b) If the assessments collected pursuant to subsection
666 (4) and the appropriation of funds provided by s. 76, chapter
667 88-1, Laws of Florida, as amended by s. 41, chapter 88-277, Laws
668 of Florida, to the plan from the Insurance Regulatory Trust Fund
669 are insufficient to maintain the plan on an actuarially sound
670 basis, there is hereby appropriated for transfer to the
671 association from the Insurance Regulatory Trust Fund an
672 additional amount of up to $20 million.
673 (c)1. Taking into account the assessments collected
674 pursuant to subsection (4) and appropriations from the Insurance
675 Regulatory Trust Fund, if required to maintain the plan on an
676 actuarially sound basis, the Office of Insurance Regulation
677 shall require each entity licensed to issue casualty insurance
678 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
679 association an annual assessment in an amount determined by the
680 office pursuant to paragraph (7)(a), in the manner required by
681 the plan of operation.
682 2. All annual assessments shall be made on the basis of
683 net direct premiums written for the business activity which
684 forms the basis for each such entity's inclusion as a funding
685 source for the plan in the state during the prior year ending
686 December 31, as reported to the Office of Insurance Regulation,
687 and shall be in the proportion that the net direct premiums
688 written by each carrier on account of the business activity
689 forming the basis for its inclusion in the plan bears to the
690 aggregate net direct premiums for all such business activity
691 written in this state by all such entities.
692 3. No entity listed in this paragraph shall be
693 individually liable for an annual assessment in excess of 0.25
694 percent of that entity's net direct premiums written.
695 4. Casualty insurance carriers shall be entitled to
696 recover their initial and annual assessments through a surcharge
697 on future policies, a rate increase applicable prospectively, or
698 a combination of the two.
699 (5)(6)(a) The association shall make all assessments
700 required by this section, except initial assessments of
701 physicians newly licensed by the Department of Health, which
702 assessments will be made by the Department of Health, and except
703 assessments of casualty insurers pursuant to paragraph (7)(c)
704 subparagraph (5)(c)1., which assessments will be made by the
705 office of Insurance Regulation. The Department of Health shall
706 provide the association, in an electronic format, with a monthly
707 report of the names and license numbers of all physicians
708 licensed under chapter 458 or chapter 459.
709 (b)1. The association may enforce collection of
710 assessments required to be paid pursuant to ss. 766.301-766.316
711 by suit filed in county court, or in circuit court if the amount
712 due could exceed the jurisdictional limits of county court. The
713 association is entitled to an award of attorney fees, costs, and
714 interest upon the entry of a judgment against a physician for
715 failure to pay such assessment, with such interest accruing
716 until paid. Notwithstanding chapters 47 and 48, the association
717 may file such suit in either Leon County or the county of the
718 residence of the defendant. The association shall notify the
719 Department of Health and the applicable board of any unpaid
720 final judgment against a physician within 7 days after the entry
721 of final judgment.
722 2. The Department of Health, upon notification by the
723 association that an assessment has not been paid and that there
724 is an unsatisfied judgment against a physician, shall refuse to
725 renew any license issued to such physician under chapter 458 or
726 chapter 459 until the association notifies the Department of
727 Health that the judgment is satisfied in full.
728 (c) The Agency for Health Care Administration shall, upon
729 notification by the association that an assessment has not been
730 timely paid, enforce collection of such assessments required to
731 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
732 a hospital to pay such assessment is grounds for disciplinary
733 action pursuant to s. 395.1065 notwithstanding any law to the
734 contrary.
735 (6)(9)(a) Within 60 days after a claim is filed, the
736 association shall estimate the present value of the total cost
737 of the claim, including the estimated amount to be paid to the
738 claimant, the claimant's attorney, the attorney's fees of the
739 association incident to the claim, and any other expenses that
740 are reasonably anticipated to be incurred by the association in
741 connection with the adjudication and payment of the claim. For
742 purposes of this estimate, the association should include the
743 maximum benefits for noneconomic damages.
744 (b) The association shall revise these estimates quarterly
745 based upon the actual costs incurred and any additional
746 information that becomes available to the association since the
747 last review of this estimate. The estimate shall be reduced by
748 any amounts paid by the association that were included in the
749 current estimate. The association must submit such quarterly
750 estimates to the office within 10 business days after
751 completion.
752 (c) After the revisions of estimates required under
753 paragraph (b), each quarter, the association shall calculate
754 whether the plan is actuarially sound. If the association's
755 calculation indicates that the plan is not actuarially sound,
756 the association shall immediately notify the office as described
757 in subsection (7). The office must review the association's
758 calculations and, within 60 days after the association's
759 notification, determine whether to initiate an actuarial
760 valuation as described in subsection (7), and notify the
761 association of its determination. At a minimum, the office shall
762 make its determination based on the degree to which the
763 association's calculations indicate that the plan is not
764 actuarially sound, the direction and consistency of recent
765 trends in the calculations of the plan's actuarial soundness,
766 and the length of time since the most recent actuarial valuation
767 conducted by the office and until the next biennial valuation.
768 The office shall initiate such actuarial valuation within 30
769 days after its determination that there is a need for a
770 valuation.
771 1. If the total of all current estimates equals or exceeds
772 100 percent of the funds on hand and the funds that will become
773 available to the association within the next 12 months from all
774 sources described in subsection (4) and paragraph (5)(a), the
775 association may not accept any new claims without express
776 authority from the Legislature. This section does not preclude
777 the association from accepting any claim if the injury occurred
778 18 months or more before the effective date of this suspension.
779 Within 30 days after the effective date of this suspension, the
780 association shall notify the Governor, the Speaker of the House
781 of Representatives, the President of the Senate, the Office of
782 Insurance Regulation, the Agency for Health Care Administration,
783 and the Department of Health of this suspension.
784 2. Notwithstanding this paragraph, the association is
785 authorized to accept new claims during the 2025-2026 fiscal year
786 if the total of all current estimates exceeds the limits
787 described in subparagraph 1. during that fiscal year. This
788 subparagraph expires July 1, 2026.
789 (d) If any person is precluded from asserting a claim
790 against the association because of paragraph (c), the plan shall
791 not constitute the exclusive remedy for such person, his or her
792 personal representative, parents, dependents, or next of kin.
793 (7)(a) The office of Insurance Regulation shall undertake
794 an actuarial investigation of the requirements of the plan based
795 on the plan's experience in the first year of operation and any
796 additional relevant information, including without limitation
797 the assets and liabilities of the plan. Pursuant to such
798 investigation, the Office of Insurance Regulation shall
799 establish the rate of contribution of the entities listed in
800 paragraph (5)(c) for the tax year beginning January 1, 1990.
801 Following the initial valuation, the Office of Insurance
802 Regulation shall cause an actuarial valuation to be made of the
803 assets and liabilities of the plan at a minimum no less
804 frequently than biennially on or before December 31 of even-
805 numbered years and as provided in subsection (6). Such valuation
806 shall be based on the assets and liabilities of the plan for the
807 calendar year before the year in which the actuarial valuation
808 is due. The office shall also determine whether the plan has
809 adequate estimated cash flow for the following fiscal year,
810 whether, based on the actuarial valuation, the plan is
811 actuarially sound, and if not, whether the plan is likely to
812 return to actuarial soundness before the next biennial review.
813 Pursuant to the results of such valuations, the Office of
814 Insurance Regulation shall prepare a statement as to the
815 contribution rate applicable to the entities listed in paragraph
816 (5)(c). However, at no time shall the rate be greater than 0.25
817 percent of net direct premiums written.
818 (b) If the office determines that the plan lacks adequate
819 cash flow for the following fiscal year pursuant to the review
820 in paragraph (a), the office shall authorize a transfer of up to
821 $20 million from the Insurance Regulatory Trust Fund to the
822 association within 30 calendar days.
823 (c)(b) If the office of Insurance Regulation finds that
824 the plan is not likely to return to actuarial soundness before
825 the next biennial review pursuant to the review in paragraph
826 (a), the office shall, within 60 calendar days after this
827 finding, order one or more of the following actions:
828 1. Increase the assessments specified in paragraphs (4)(a)
829 and (c) on a proportional basis, by an amount not exceeding 100
830 percent of the applicable assessment in paragraphs (4)(a) and
831 (c), that is calculated to generate a total amount no greater
832 than the amount required to maintain the plan on an actuarially
833 sound basis.
834 2. If actuarial soundness cannot be achieved after using
835 the remedy in subparagraph 1., increase the assessments
836 specified in paragraph (4)(b) on a proportional basis, by an
837 amount not exceeding 100 percent of the assessment in paragraph
838 (4)(b), that is calculated to generate a total amount no greater
839 than the amount required to maintain the plan on an actuarially
840 sound basis.
841 3. If actuarial soundness cannot be achieved after using
842 the remedies in subparagraphs 1. and 2., require each entity
843 licensed to issue casualty insurance as defined in s.
844 624.605(1)(b), (k), and (q) to pay into the association an
845 annual assessment that is calculated to generate a total amount
846 no greater than the amount required to achieve actuarial
847 soundness of the plan within 5 years after the date of the
848 order, subject to the limitations of this subparagraph.
849 a. These assessments shall be made on the basis of net
850 direct premiums written for the business activity which forms
851 the basis for each such entity's inclusion as a funding source
852 for the plan in the state during the prior year ending December
853 31, as reported to the office, and shall be in the proportion
854 that the net direct premiums written by each carrier on account
855 of the business activity forming the basis for its inclusion in
856 the plan bears to the aggregate net direct premiums for all such
857 business activity written in this state by all such entities.
858 b. No entity shall be individually liable for an annual
859 assessment in excess of 0.25 percent of that entity's net direct
860 premiums written.
861 c. Casualty insurance carriers shall be entitled to
862 recover their assessments through a surcharge on future
863 policies, a rate increase applicable prospectively, or a
864 combination of the two.
865 d. An assessment under this subparagraph must not extend 5
866 years after the date of the order.
867 (d) If the office finds that the plan is not actuarially
868 sound pursuant to the review in paragraph (a), the plan shall
869 provide the office with quarterly reports projecting the plan's
870 financial health and, if assessments were ordered by the office
871 under this paragraph, projected revenues for such assessments.
872 (e) If the association finds that the plan is not
873 actuarially sound and the remedies provided under subsection (7)
874 are insufficient to reestablish the actuarial soundness of the
875 plan, the association shall, within 60 days after such finding,
876 notify the Governor, the President of the Senate, the Speaker of
877 the House of Representatives, and the office. If the plan issues
878 the notice, the association may not accept any new claims
879 without express authority from the Legislature. This paragraph
880 does not preclude the association from accepting any claim if
881 the injury occurred 18 months or more before the effective date
882 of this suspension.
883 (f) If any person is precluded from asserting a claim
884 against the association because of paragraph (e), the plan shall
885 not constitute the exclusive remedy for such person, his or her
886 personal representative, parents, dependents, or next of kin
887 cannot be maintained on an actuarially sound basis based on the
888 assessments and appropriations listed in subsections (4) and
889 (5), the office shall increase the assessments specified in
890 subsection (4) on a proportional basis as needed.
891 (8) The association shall report to the Legislature its
892 determination as to the annual cost of maintaining the fund on
893 an actuarially sound basis. In making its determination, the
894 association shall consider the recommendations of all hospitals,
895 physicians, casualty insurers, attorneys, consumers, and any
896 associations representing any such person or entity.
897 Notwithstanding the provisions of s. 395.3025, all hospitals,
898 casualty insurers, departments, boards, commissions, and
899 legislative committees shall provide the association with all
900 relevant records and information upon request to assist the
901 association in making its determination. All hospitals shall,
902 upon request by the association, provide the association with
903 information from their records regarding any live birth. Such
904 information shall not include the name of any physician, the
905 name of any hospital employee or agent, the name of the patient,
906 or any other information which will identify the infant involved
907 in the birth. Such information thereby obtained shall be
908 utilized solely for the purpose of assisting the association and
909 shall not subject the hospital to any civil or criminal
910 liability for the release thereof. Such information shall
911 otherwise be confidential and exempt from the provisions of s.
912 119.07(1) and s. 24(a), Art. I of the State Constitution.
913 Section 8. Present subsections (5) through (8) of section
914 766.315, Florida Statutes, are redesignated as subsections (6)
915 through (9), respectively, a new subsection (5) is added to that
916 section, and subsection (1), paragraph (e) of present subsection (5), and present subsections (7) and (8) of that section are
918 amended to read:
919 766.315 Florida Birth-Related Neurological Injury
920 Compensation Association; board of directors; notice of
921 meetings; report.—
922 (1)(a) The Florida Birth-Related Neurological Injury
923 Compensation Plan shall be governed by a board of seven
924 directors which shall be known as the Florida Birth-Related
925 Neurological Injury Compensation Association. The association is
926 not a state agency, board, or commission. Notwithstanding the
927 provision of s. 15.03, the association is authorized to use the
928 state seal.
929 (b) The directors shall be appointed for staggered terms
930 of 3 years or until their successors are appointed and have
931 qualified; however, a director may not serve for more than 6
932 consecutive years.
933 (c) The directors shall be appointed by the Chief
934 Financial Officer as follows:
935 1. One citizen representative who is not affiliated with
936 any of the groups identified in subparagraphs 2.-7.
937 2. One representative of participating physicians.
938 3. One representative of hospitals.
939 4. One representative of casualty insurers.
940 5. One representative of physicians other than
941 participating physicians.
942 6. One family member of a participant parent or legal
943 guardian representative of an injured infant under the plan.
944 7. One representative of an advocacy organization for
945 children with disabilities.
946 (5) The board of directors may not create new benefits or
947 expand existing benefits that result in additional costs to the
948 plan if the plan's operating expenses exceed assessment revenue,
949 plus investment income, as documented in the plan's audited
950 financial statements for the prior fiscal year.
951 (6)(5)
952 (e) Annually, the association shall furnish audited
953 financial reports to any plan participant upon request, to the
954 office of Insurance Regulation of the Financial Services
955 Commission, and to the Joint Legislative Auditing Committee. The
956 reports must be prepared in accordance with generally accepted
957 auditing standards accounting procedures and must include such
958 information as may be required by the office of Insurance
959 Regulation or the Joint Legislative Auditing Committee. At any
960 time determined to be necessary, the office of Insurance
961 Regulation or the Joint Legislative Auditing Committee may
962 conduct an audit of the plan.
963 (8)(7) The association shall publish a report on its
964 website by January 1 of each year. The report must shall include
965 all of the following:
966 (a) The names and terms of each board member and executive
967 staff member.
968 (b) The amount of compensation paid to each association
969 employee or independent contractor.
970 (c) A summary of reimbursement disputes and resolutions.
971 (d) A list of expenditures for attorney fees and lobbying
972 fees.
973 (e) Other expenses to oppose each plan claim. Any personal
974 identifying information of the parent, legal guardian, or child
975 involved in the claim must be removed from this list.
976 (9)(8) By November 1 of each year, the association shall
977 submit a report to the Governor, the President of the Senate,
978 the Speaker of the House of Representatives, and the Chief
979 Financial Officer. The report must include all of the following:
980 (a) The number of petitions filed for compensation with
981 the division, the number of claimants awarded compensation, the
982 number of claimants denied compensation, and the reasons for the
983 denial of compensation.
984 (b) The number and dollar amount of paid and denied
985 compensation for expenses by category and the reasons for any
986 denied compensation for expenses by category.
987 (c) The average turnaround time for paying or denying
988 compensation for expenses.
989 (d) Legislative recommendations to improve the program.
990 (e) A summary of any pending or resolved litigation during
991 the year which affects the plan.
992 (f) The amount of compensation paid to each association
993 employee, independent contractor, or member of the board of
994 directors.
995 Section 9. This act shall take effect July 1, 2026.