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THE BILL ITSELF

CS/CS/SB 1668

Florida Birth-Related Neurological Injury Compensation Association

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

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2 An act relating to the Florida Birth-Related
3 Neurological Injury Compensation Association; amending
4 s. 409.910, F.S.; requiring the Agency for Health Care
5 Administration to recover from the Florida Birth
6 Related Neurological Injury Compensation Association
7 specified costs incurred by Medicaid; reordering and
8 amending s. 766.302, F.S.; defining terms; revising
9 definitions; amending s. 766.303, F.S.; revising the
10 exclusiveness of rights and remedies of the Florida
11 Birth-Related Neurological Injury Compensation Plan;
12 making technical and conforming changes; amending s.
13 766.305, F.S.; making technical and conforming
14 changes; amending s. 766.309, F.S.; conforming a
15 cross-reference; amending s. 766.31, F.S.; revising
16 the expenses covered by an award for compensation
17 under the plan; revising services eligible for
18 compensation under certain annual benefits under the
19 plan; providing an additional benefit for
20 psychotherapeutic services for family members upon the
21 death of a participant; revising eligibility criteria
22 for transportation and housing assistance benefits
23 under the plan; providing coverage of certain legal
24 costs under the plan; requiring the plan to reimburse
25 certain claims and payments for plan participants also
26 enrolled in the state Medicaid program; requiring that
27 such funds be credited to the agency’s Medical Care
28 Trust Fund; requiring the plan to reimburse certain
29 participants by a specified date; prohibiting
30 compensation under the plan for family residential or
31 custodial care under certain circumstances;
32 authorizing the association to file a petition with
33 the Division of Administrative Hearings if there is a
34 dispute regarding overpayment of an expense
35 reimbursement under the plan; deleting obsolete
36 language; requiring family members of plan
37 participants to continuously maintain certain health
38 insurance coverage for the participant; requiring
39 family members of plan participants to obtain such
40 coverage or apply for Medicaid coverage within a
41 specified timeframe after entry of a final order for
42 an award for compensation under the plan; requiring
43 family members of current plan participants to obtain
44 the requisite health insurance coverage by a specified
45 date; amending s. 766.314, F.S.; revising requirements
46 for the administration of assessments and
47 appropriations dedicated to the Florida Birth-Related
48 Neurological Injury Compensation Plan; revising the
49 schedule of assessments participating hospitals and
50 physicians are required to pay to the association;
51 requiring the association to submit revised quarterly
52 claim estimates to the office within a specified
53 timeframe; requiring the association to assess its
54 financial condition and issue a specified notice to
55 the Office of Insurance Regulation in certain
56 circumstances; requiring the Office of Insurance
57 Regulation to review the association’s financial
58 condition upon receipt of such report; providing
59 criteria for review; providing the timeframe and
60 criteria for the Office of Insurance Regulation’s
61 biennial review of the association’s financial
62 condition; requiring a determination regarding the
63 plan’s short term cash flow; requiring the office to
64 authorize transfers of funds to the association within
65 a specified timeframe under certain circumstances;
66 providing that the cumulative amount of such transfers
67 may not exceed a specified amount over the life of the
68 plan; providing the office with specified
69 responsibilities; providing limitations on time and
70 value of potential assessments; deleting reporting
71 requirements; repealing a public records exemption;
72 amending s. 766.315, F.S.; revising membership of the
73 association’s board of directors; prohibiting the
74 board of directors from creating new benefits or
75 expanding existing benefits under the plan under
76 certain circumstances; providing construction;
77 revising requirements for certain reports of the
78 association; providing an effective date.
80 Be It Enacted by the Legislature of the State of Florida:
82 Section 1. Paragraph (a) of subsection (7) of section
83 409.910, Florida Statutes, is amended to read:
84 409.910 Responsibility for payments on behalf of Medicaid
85 eligible persons when other parties are liable.—
86 (7) The agency shall recover the full amount of all medical
87 assistance provided by Medicaid on behalf of the recipient to
88 the full extent of third-party benefits.
89 (a) Recovery of such benefits shall be collected directly
90 from:
91 1. Any third party;
92 2. The recipient or legal representative, if he or she has
93 received third-party benefits;
94 3. The provider of a recipient’s medical services if third
95 party benefits have been recovered by the provider;
96 notwithstanding any provision of this section, to the contrary,
97 however, no provider shall be required to refund or pay to the
98 agency any amount in excess of the actual third-party benefits
99 received by the provider from a third-party payor for medical
100 services provided to the recipient; or
101 4. Any person who has received the third-party benefits ; or
102 5. The Florida Birth-Related Neurological Injury
103 Compensation Association for plan participant costs incurred
104 under s. 766.31 .
106 The provisions of this subsection do not apply to any proceeds
107 received by the state, or any agency thereof, pursuant to a
108 final order, judgment, or settlement agreement, in any matter in
109 which the state asserts claims brought on its own behalf, and
110 not as a subrogee of a recipient, or under other theories of
111 liability. The provisions of this subsection do not apply to any
112 proceeds received by the state, or an agency thereof, pursuant
113 to a final order, judgment, or settlement agreement, in any
114 matter in which the state asserted both claims as a subrogee and
115 additional claims, except as to those sums specifically
116 identified in the final order, judgment, or settlement agreement
117 as reimbursements to the recipient as expenditures for the named
118 recipient on the subrogation claim.
119 Section 2. Section 766.302, Florida Statutes, is reordered
120 and amended to read:
121 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
122 766.301-766.316, the term:
123 (1) “Actuarially sound” means that the total plan assets
124 available to fund future liabilities are equal to or greater
125 than 90 percent of the present value of total estimated
126 liabilities excluding any risk margin.
127 (2) (4) “Administrative law judge” means an administrative
128 law judge appointed by the division.
129 (3) (1) “Association” means the Florida Birth-Related
130 Neurological Injury Compensation Association established in s.
131 766.315 to administer the Florida Birth-Related Neurological
132 Injury Compensation Plan and the plan of operation established
133 in s. 766.314.
134 (4) (2) “Birth-related neurological injury” means injury to
135 the brain or spinal cord of a live infant weighing at least
136 2,500 grams for a single gestation or, in the case of a multiple
137 gestation, a live infant weighing at least 2,000 grams at birth
138 caused by oxygen deprivation or mechanical injury occurring in
139 the course of labor, delivery, or resuscitation in the immediate
140 postdelivery period in a hospital, which renders the infant
141 permanently and substantially mentally and physically impaired.
142 This definition shall apply to live births only and does shall
143 not include disability or death caused by genetic or congenital
144 abnormality.
145 (5) (3) “Claimant” means any person who files a claim
146 pursuant to s. 766.305 for compensation for a birth-related
147 neurological injury to an infant. Such a claim may be filed by
148 any legal representative on behalf of an injured infant; and, in
149 the case of a deceased infant, the claim may be filed by an
150 administrator, personal representative, or other legal
151 representative thereof.
152 (6) (5) “Division” means the Division of Administrative
153 Hearings of the Department of Management Services.
154 (7) (9) “Family member” means a father, mother, or legal
155 guardian.
156 (8) (10) “Family residential or custodial care” means care
157 normally rendered by trained professional attendants which is
158 beyond the scope of child care duties, but which is provided by
159 family members. Family members who provide nonprofessional
160 residential or custodial care may not be compensated under this
161 act for care that falls within the scope of child care duties
162 and other services normally and gratuitously provided by family
163 members. Family residential or custodial care shall be performed
164 only at the direction and control of a physician when such care
165 is medically necessary. Reasonable charges for expenses for
166 family residential or custodial care provided by a family member
167 shall be determined as follows:
168 (a) If the family member is not employed, the per-hour
169 value equals the federal minimum hourly wage.
170 (b) If the family member is employed and elects to leave
171 that employment to provide such care, the per-hour value of that
172 care shall equal the rates established by Medicaid for private
173 duty services provided by a home health aide. A family member or
174 a combination of family members providing care in accordance
175 with this definition may not be compensated for more than a
176 total of 10 hours per day. Family care is in lieu of
177 professional residential or custodial care, and no professional
178 residential or custodial care may be awarded for the period of
179 time during the day that family care is being provided.
180 (9) (6) “Hospital” means any hospital licensed in Florida.
181 (10) “Office” means the Office of Insurance Regulation.
182 (11) “Participant” means the person who suffered a birth
183 related neurological injury as an infant and who accepted
184 compensation under the plan by final order entered by an
185 administrative law judge pursuant to s. 766.309.
186 (12) (7) “Participating physician” means a physician
187 licensed in Florida to practice medicine who practices
188 obstetrics or performs obstetrical services either full time or
189 part time and who had paid or was exempted from payment at the
190 time of the injury the assessment required for participation in
191 the birth-related neurological injury compensation plan for the
192 year in which the injury occurred. Such term does shall not
193 apply to any physician who practices medicine as an officer,
194 employee, or agent of the Federal Government.
195 (13) (8) “Plan” means the Florida Birth-Related Neurological
196 Injury Compensation Plan established under s. 766.303.
197 (14) “Risk margin” means an additional, explicit allowance
198 above the best-estimate reserve to reflect uncertainty in future
199 claim payments, including variations in claimant life expectancy
200 and the number and cost of pending or unreported claims. The
201 risk margin is not included in the reserve amount used to
202 calculate the funding ratio.
203 Section 3. Section 766.303, Florida Statutes, is amended to
204 read:
205 766.303 Florida Birth-Related Neurological Injury
206 Compensation Plan; exclusiveness of remedy.—
207 (1) There is established the Florida Birth-Related
208 Neurological Injury Compensation Plan for the purpose of
209 providing compensation, irrespective of fault, for birth-related
210 neurological injuries injury claims . Such plan shall apply to
211 births occurring on or after January 1, 1989, and shall be
212 administered by the Florida Birth-Related Neurological Injury
213 Compensation Association.
214 (2) The rights and remedies granted by this plan on account
215 of a birth-related neurological injury shall exclude all other
216 rights and remedies of such infant, her or his personal
217 representative, family members parents , dependents, and next of
218 kin, at common law or otherwise, against any person or entity
219 directly involved with the labor, delivery, or immediate
220 postdelivery resuscitation during which such injury occurs,
221 arising out of or related to a medical negligence claim with
222 respect to such injury; except that a civil action may shall not
223 be foreclosed where there is clear and convincing evidence of
224 bad faith or malicious purpose or willful and wanton disregard
225 of human rights, safety, or property, provided that such suit is
226 filed prior to and in lieu of payment of an award under ss.
227 766.301-766.316. Such suit shall be filed before the award of
228 the division becomes conclusive and binding as provided for in
229 s. 766.311.
230 (3) Sovereign immunity is hereby waived on behalf of the
231 Florida Birth-Related Neurological Injury Compensation
232 Association solely to the extent necessary to assure payment of
233 compensation as provided in s. 766.31.
234 (4) The association shall administer the plan in a manner
235 that promotes and protects the health and best interests of
236 participants children with birth-related neurological injuries.
237 Section 4. Subsections (1) and (3) of section 766.305,
238 Florida Statutes, are amended to read:
239 766.305 Filing of claims and responses; medical
240 disciplinary review.—
241 (1) All claims filed for compensation under the plan must
242 shall commence by the claimant filing with the division a
243 petition that includes all of seeking compensation. Such
244 petition shall include the following information:
245 (a) The name and address of the legal representative and
246 the basis for her or his representation of the injured infant.
247 (b) The name and address of the injured infant.
248 (c) The name and address of any physician providing
249 obstetrical services who was present at the birth and the name
250 and address of the hospital at which the birth occurred.
251 (d) A description of the disability for which the claim is
252 made.
253 (e) The time and place the injury occurred.
254 (f) A brief statement of the facts and circumstances
255 surrounding the injury and giving rise to the claim.
256 (3) The claimant shall furnish to the Florida Birth-Related
257 Neurological Injury Compensation association the following
258 information, which must be filed with the association within 10
259 days after the filing of the petition as set forth in subsection
260 (1):
261 (a) All available relevant medical records relating to the
262 birth-related neurological injury and a list identifying any
263 unavailable records known to the claimant and the reasons for
264 the records’ unavailability.
265 (b) Appropriate assessments, evaluations, and prognoses and
266 such other records and documents as are reasonably necessary for
267 the determination of the amount of compensation to be paid to,
268 or on behalf of, the injured infant on account of the birth
269 related neurological injury.
270 (c) Documentation of expenses and services incurred to date
271 which identifies any payment made for such expenses and services
272 and the payor.
273 (d) Documentation of any applicable private or governmental
274 source of services or reimbursement relative to the impairments.
276 The information required by paragraphs (a)-(d) shall remain
277 confidential and exempt under the provisions of s. 766.315(6)(b)
278 s. 766.315(5)(b) .
279 Section 5. Paragraph (a) of subsection (1) of section
280 766.309, Florida Statutes, is amended to read:
281 766.309 Determination of claims; presumption; findings of
282 administrative law judge binding on participants.—
283 (1) The administrative law judge shall make the following
284 determinations based upon all available evidence:
285 (a) Whether the injury claimed is a birth-related
286 neurological injury. If the claimant has demonstrated, to the
287 satisfaction of the administrative law judge, that the infant
288 has sustained a brain or spinal cord injury caused by oxygen
289 deprivation or mechanical injury and that the infant was thereby
290 rendered permanently and substantially mentally and physically
291 impaired, a rebuttable presumption shall arise that the injury
292 is a birth-related neurological injury as defined in s. 766.302
293 s. 766.302(2) .
294 Section 6. Section 766.31, Florida Statutes, is amended to
295 read:
296 766.31 Administrative law judge awards for birth-related
297 neurological injuries; notice of award.—
298 (1) Upon determining that an infant has sustained a birth
299 related neurological injury and that obstetrical services were
300 delivered by a participating physician at the birth, the
301 administrative law judge shall make an award providing
302 compensation for the following items relative to such injury:
303 (a) Actual expenses incurred since the date of birth for
304 medically necessary and reasonable :
305 1. Medical and hospital care and services; ,
306 2. Habilitative services; and training,
307 3. Dental services;
308 4. Family residential or custodial care ; ,
309 5. Professional residential care; , and
310 6. Professional custodial care ; and service,
311 7. for medically necessary Drugs ; ,
312 8. Special equipment ; , and facilities, and
313 9. for Related travel.
314 (b) At a minimum, compensation must be provided for the
315 following actual expenses:
316 1. Psychotherapeutic services for A total annual benefit of
317 up to $10,000 for immediate family members and other relatives
318 who have resided reside with the participant, which are infant
319 for psychotherapeutic services obtained from a psychiatrist
320 licensed under chapter 458 or chapter 459, a provider providers
321 licensed under chapter 490 or chapter 491 , or a psychiatrist or
322 provider who has equivalent licensure by another jurisdiction.
323 This benefit for such family members and relatives shall be up
324 to a total of $10,000 annually during the participant’s lifetime
325 and up to a total of $20,000 subsequent to the participant’s
326 death .
327 2. For the life of the participant child , providing family
328 members parents or legal guardians with a reliable method of
329 transporting transportation for the care of the participant and
330 child or reimbursing the cost of upgrading an existing vehicle
331 to accommodate the participant’s wheelchair and medically
332 necessary equipment child’s needs when it becomes medically
333 necessary for wheelchair transportation. The mode of
334 transportation must take into account the special accommodations
335 required for the specific child . The plan may not limit such
336 transportation assistance based on the participant’s child’s age
337 or weight. The plan must replace any vehicle vans purchased by
338 the plan every 7 years or 150,000 miles, whichever comes first.
339 3. Housing assistance of up to $100,000 for the life of the
340 participant child , including , but not limited to, a down payment
341 on a new home, moving expenses, and home construction and
342 modification costs.
343 4. Legal costs associated with establishing and maintaining
344 guardianship for a participant.
345 (c)1. The costs of a health insurance policy or health
346 maintenance contract that provides major medical or similar
347 comprehensive health insurance coverage for the participant
348 obtained pursuant to subsection (3), including, but not limited
349 to, the premium and out-of-pocket costs. For participants
350 enrolled in the state Medicaid program, the plan must reimburse
351 fee-for-service paid claims and capitation payments, as
352 applicable, for services provided to such participants pursuant
353 to this section and for the administrative and support costs
354 associated with the provided medical assistance. Such funds
355 shall be credited to the Agency for Health Care Administration’s
356 Medical Care Trust Fund.
357 2. By December 31, 2026, the plan shall reimburse any
358 participant for reasonable, medically necessary care received by
359 the participant on or before June 30, 2026, which was reduced or
360 not paid by the plan because such participant did not have
361 comprehensive or major medical health insurance coverage through
362 an insurer or a health maintenance organization.
363 (d) (b) However, the following expenses are not subject to
364 compensation:
365 1. Expenses for items or services that the participant
366 infant has received, or is entitled to receive, under the laws
367 of any state or the Federal Government, except to the extent
368 such exclusion may be prohibited by federal law.
369 2. Expenses for items or services that the participant
370 infant has received, or is contractually entitled to receive,
371 from any prepaid health plan, health maintenance organization,
372 or other private insuring entity.
373 3. Expenses for which the participant infant has received
374 reimbursement, or for which the participant infant is entitled
375 to receive reimbursement, under the laws of any state or the
376 Federal Government, except to the extent such exclusion may be
377 prohibited by federal law.
378 4. Expenses for which the participant infant has received
379 reimbursement, or for which the participant infant is
380 contractually entitled to receive reimbursement, pursuant to the
381 provisions of any health or sickness insurance policy or other
382 private insurance program.
383 5. Expenses for family residential or custodial care
384 provided by a family member while:
385 a. Care and supervision of the participant is
386 simultaneously being provided by another person or entity; or
387 b. The family member receives compensation from another
388 source for work performed during the same time for which
389 compensation is sought from the association.
390 (e) (c) Expenses included under paragraphs paragraph (a) and
391 (b) are limited to reasonable charges prevailing in the same
392 community for similar treatment of injured persons when such
393 treatment is paid for by the injured person.
394 (f)1. A family member The parents or legal guardians
395 receiving benefits under the plan may file a petition with the
396 division of Administrative Hearings to dispute the amount of
397 actual expenses reimbursed or a denial of reimbursement.
398 2. In the case of an alleged overpayment of an expense
399 reimbursement by the association to a family member, if the
400 family member does not agree that an overpayment has occurred,
401 the association may file a petition for division review of the
402 overpayment for a determination of the amount, if any, to be
403 recouped by the association.
404 (g)1. (d)1.a. Periodic payments of an award to the family
405 members parents or legal guardians of the participant infant
406 found to have sustained a birth-related neurological injury ,
407 which award may not exceed $100,000. However, at the discretion
408 of the administrative law judge, such award may be made in a
409 lump sum. Beginning on January 1, 2021, the award may not exceed
410 $250,000, and each January 1 thereafter, the maximum award
411 authorized under this paragraph shall increase by 3 percent.
412 b. Parents or legal guardians who received an award
413 pursuant to this section before January 1, 2021, must receive a
414 retroactive payment in an amount sufficient to bring the total
415 award paid to the parents or legal guardians pursuant to sub
416 subparagraph a. to $250,000. This additional payment may be made
417 in a lump sum or in periodic payments as designated by the
418 parents or legal guardians and must be paid by July 1, 2021.
419 2. a. Death benefit for the participant infant in an amount
420 of $50,000.
421 b. Parents or legal guardians who received an award
422 pursuant to this section, and whose child died since the
423 inception of the program, must receive a retroactive payment in
424 an amount sufficient to bring the total award paid to the
425 parents or legal guardians pursuant to sub-subparagraph a. to
426 $50,000. This additional payment may be made in a lump sum or in
427 periodic payments as designated by the parents or legal
428 guardians and must be paid by July 1, 2021.
429 (h) (e) Reasonable expenses incurred in connection with the
430 filing of a claim under ss. 766.301-766.316, including
431 reasonable attorney attorney’s fees, which shall be subject to
432 the approval and award of the administrative law judge. In
433 determining an award for attorney attorney’s fees, the
434 administrative law judge shall consider the following factors:
435 1. The time and labor required, the novelty and difficulty
436 of the questions involved, and the skill requisite to perform
437 the legal services properly.
438 2. The fee customarily charged in the locality for similar
439 legal services.
440 3. The time limitations imposed by the claimant or the
441 circumstances.
442 4. The nature and length of the professional relationship
443 with the claimant.
444 5. The experience, reputation, and ability of the lawyer or
445 lawyers performing services.
446 6. The contingency or certainty of a fee.
448 If there is Should there be a final determination of
449 compensability, and the claimants accept an award under this
450 section, the claimants are not liable for any expenses,
451 including attorney fees, incurred in connection with the filing
452 of a claim under ss. 766.301-766.316 other than those expenses
453 awarded under this section.
454 (2) The award shall require the immediate payment of
455 expenses previously incurred and shall require that future
456 expenses be paid as incurred.
457 (3) A family member must continuously maintain a health
458 insurance policy or health maintenance contract that provides
459 comprehensive major medical health insurance coverage for the
460 participant.
461 (a) If the participant does not have such coverage at the
462 time of entry of a final order by an administrative law judge
463 approving a claim for compensation, the family member must
464 obtain coverage within 60 days after entry of such order or
465 apply for Medicaid coverage within 30 days after entry of such
466 order.
467 (b) If the participant is determined to be ineligible for
468 Medicaid, the family member must obtain other coverage within 60
469 days after receiving the Medicaid application denial.
470 (c) A family member of an individual who is a participant
471 on June 30, 2026, must obtain the required coverage for the
472 participant by January 1, 2027.
473 (4) (3) A copy of the award shall be sent immediately by
474 registered or certified mail to each person served with a copy
475 of the petition under s. 766.305(2).
476 Section 7. Section 766.314, Florida Statutes, is amended to
477 read:
478 766.314 Assessments; plan of operation.—
479 (1) The assessments established under pursuant to this
480 section shall be used to finance the Florida Birth-Related
481 Neurological Injury Compensation Plan.
482 (2) The assessments and appropriations dedicated to the
483 plan shall be administered by the Florida Birth-Related
484 Neurological Injury Compensation Association established in s.
485 766.315, in accordance with the following requirements:
486 (a) On or before July 1, 1988, The directors of the
487 association shall submit to the office Department of Insurance
488 for review and approval a plan of operation and any amendment
489 thereto which shall provide for the efficient administration of
490 the plan and for prompt processing of claims against and awards
491 made on behalf of the plan.
492 (b) The plan of operation must shall include provision for:
493 1. Establishment of necessary facilities;
494 2. Management of the funds collected on behalf of the plan;
495 3. Processing of claims against the plan;
496 4. Assessment of the persons and entities listed in
497 subsections (4) and (7) (5) to pay awards and expenses , which
498 assessments shall be on an actuarially sound basis subject to
499 the limits set forth in subsections (4) and (5) ;
500 5. A fraud and overpayment prevention and detection
501 program; and
502 6. 5. Any other matters necessary for the efficient
503 operation of the Florida Birth-Related Neurological Injury
504 Compensation Plan.
505 (b) Amendments to the plan of operation may be made by the
506 directors of the plan, subject to the approval of the office of
507 Insurance Regulation of the Financial Services Commission.
508 (3) All assessments shall be deposited with the Florida
509 Birth-Related Neurological Injury Compensation association. The
510 funds collected by the association and any income therefrom
511 shall be disbursed only for the payment of awards under ss.
512 766.301-766.316 and for the payment of the reasonable expenses
513 of administering the plan.
514 (4) The following persons and entities shall pay into the
515 association assessments as follows an initial assessment in
516 accordance with the plan of operation :
517 (a) 1. On or before October 1, 1988, Each hospital licensed
518 under chapter 395 shall pay an initial assessment of $50 per
519 infant delivered in that the hospital during the prior calendar
520 year , as reported to the Agency for Health Care Administration;
521 provided, however, that a hospital owned or operated by the
522 state or a county, special taxing district, or other political
523 subdivision of the state shall not be required to pay the
524 initial assessment or any assessment required by this subsection
525 or subsection (7) (5) . The term “infant delivered” includes live
526 births and not stillbirths, but the term does not include
527 infants delivered by employees or agents of the board of
528 trustees of a state university, those born in a teaching
529 hospital as defined in s. 408.07, or those born in a teaching
530 hospital as defined in s. 395.806 that have been deemed by the
531 association as being exempt from assessments since fiscal year
532 1997 to fiscal year 2001. The initial assessment and any
533 assessment imposed pursuant to subsection (7) (5) may not
534 include any infant born to a charity patient (as defined by rule
535 of the Agency for Health Care Administration) or born to a
536 patient for whom the hospital receives Medicaid reimbursement,
537 if the sum of the annual charges for charity patients plus the
538 annual Medicaid contractuals of the hospital exceeds 10 percent
539 of the total annual gross operating revenues of the hospital.
540 The hospital is responsible for documenting, to the satisfaction
541 of the association, the exclusion of any birth from the
542 computation of the assessment. Upon demonstration of financial
543 need by a hospital, the association may provide for installment
544 payments of assessments.
545 2. Assessments are due, and hospitals shall pay all
546 assessments required under this section, by December 31 of the
547 calendar year immediately subsequent to the birth year.
548 (b)1. a. On or before October 15, 1988, All physicians
549 licensed pursuant to chapter 458 or chapter 459 as of October 1,
550 1988 , other than participating physicians, shall be assessed an
551 annual initial assessment of $250 . ,
552 b. Payment for all assessments required under this
553 paragraph is due on or before December 31 of each year which
554 must be paid no later than December 1, 1988 .
555 2. Any such physician who becomes licensed after September
556 30, 1988, and before January 1, 1989, shall pay into the
557 association an initial assessment of $250 upon licensure.
558 3. Any such physician who becomes licensed on or after
559 January 1, 1989, shall pay an initial assessment equal to the
560 most recent assessment made pursuant to this paragraph,
561 paragraph (5)(a), or paragraph (7)(b).
562 2. 4. However, if the physician is a physician specified in
563 this subparagraph, the assessment is not applicable:
564 a. A resident physician, assistant resident physician, or
565 intern in an approved postgraduate training program, as defined
566 by the Board of Medicine or the Board of Osteopathic Medicine by
567 rule;
568 b. A retired physician who has withdrawn from the practice
569 of medicine but who maintains an active license as evidenced by
570 an affidavit filed with the Department of Health. Prior to
571 reentering the practice of medicine in this state, a retired
572 physician as herein defined must notify the Board of Medicine or
573 the Board of Osteopathic Medicine and pay the appropriate
574 assessments pursuant to this section;
575 c. A physician who holds a limited license pursuant to s.
576 458.317 and who is not being compensated for medical services;
577 d. A physician who is employed full time by the United
578 States Department of Veterans Affairs and whose practice is
579 confined to United States Department of Veterans Affairs
580 hospitals; or
581 e. A physician who is a member of the Armed Forces of the
582 United States and who meets the requirements of s. 456.024.
583 f. A physician who is employed full time by the State of
584 Florida and whose practice is confined to state-owned
585 correctional institutions, a county health department, or state
586 owned mental health or developmental services facilities, or who
587 is employed full time by the Department of Health.
588 (c) 1. On or before December 1, 1988, Each physician
589 licensed pursuant to chapter 458 or chapter 459 who wishes to
590 participate in the Florida Birth-Related Neurological Injury
591 Compensation Plan and who otherwise qualifies as a participating
592 physician under ss. 766.301-766.316 shall pay an annual initial
593 assessment of $5,000 and any assessment required under paragraph
594 (7)(c), if assessed . However, if the physician is either a
595 resident physician, assistant resident physician, or intern in
596 an approved postgraduate training program, as defined by the
597 Board of Medicine or the Board of Osteopathic Medicine by rule,
598 and is supervised in accordance with program requirements
599 established by the Accreditation Council for Graduate Medical
600 Education or the American Osteopathic Association by a physician
601 who is participating in the plan, such resident physician,
602 assistant resident physician, or intern is deemed to be a
603 participating physician without the payment of the assessment.
604 Participating physicians also include any employee of the board
605 of trustees of a state university who has paid the assessment
606 required by this paragraph and , if assessed, paragraph (7)(c)
607 (5)(a) , and any certified nurse midwife supervised by such
608 employee. Participating physicians include any certified nurse
609 midwife who has paid 50 percent of the physician assessment
610 required by this paragraph and , if assessed, paragraph (7)(c),
611 (5)(a) and who is supervised by a participating physician who
612 has paid the assessment required by this paragraph and , if
613 assessed, paragraph (7)(c) (5)(a) . Supervision for nurse
614 midwives shall require that the supervising physician will be
615 easily available and have a prearranged plan of treatment for
616 specified patient problems which the supervised certified nurse
617 midwife may carry out in the absence of any complicating
618 features. Any physician who elects to participate in such plan
619 on or after January 1, 1989, who was not a participating
620 physician at the time of such election to participate and who
621 otherwise qualifies as a participating physician under ss.
622 766.301-766.316 shall pay an additional initial assessment equal
623 to the most recent assessment made pursuant to this paragraph,
624 paragraph (5)(a), or paragraph (7)(b).
625 2. Payment of assessments required by this paragraph is due
626 on or before December 31 of each year for qualification as a
627 participating physician during the next calendar year. If
628 payment of the assessments is received by the association on or
629 before January 31 of any calendar year, the physician shall
630 qualify as a participating physician for that entire calendar
631 year. If the payment is received after January 31, the physician
632 shall qualify as a participating physician for that calendar
633 year only from the date the payment was received by the
634 association.
635 (d) Any hospital located in a county with a population in
636 excess of 1.1 million as of January 1, 2003, as determined by
637 the Agency for Health Care Administration under the Health Care
638 Responsibility Act, may elect to pay the assessments required by
639 paragraph (c) fee for the participating physician and the
640 certified nurse midwife if the hospital first determines that
641 the primary motivating purpose for making such payment is to
642 ensure coverage for the hospital’s patients under the provisions
643 of ss. 766.301-766.316; however, no hospital may restrict any
644 participating physician or nurse midwife, directly or
645 indirectly, from being on the staff of hospitals other than the
646 staff of the hospital making the payment. Each hospital shall
647 file with the association an affidavit setting forth
648 specifically the reasons why the hospital elected to make the
649 payment on behalf of each participating physician and certified
650 nurse midwife. The payments authorized under this paragraph
651 shall be in addition to the assessment set forth in paragraph
652 (5)(a).
653 (5)(a) Beginning January 1, 1990, the persons and entities
654 listed in paragraphs (4)(b) and (c), except those persons or
655 entities who are specifically excluded from said provisions, as
656 of the date determined in accordance with the plan of operation,
657 taking into account persons licensed subsequent to the payment
658 of the initial assessment, shall pay an annual assessment in the
659 amount equal to the initial assessments provided in paragraphs
660 (4)(b) and (c). If payment of the annual assessment by a
661 physician is received by the association by January 31 of any
662 calendar year, the physician shall qualify as a participating
663 physician for that entire calendar year. If the payment is
664 received after January 31 of any calendar year, the physician
665 shall qualify as a participating physician for that calendar
666 year only from the date the payment was received by the
667 association. On January 1, 1991, and on each January 1
668 thereafter, the association shall determine the amount of
669 additional assessments necessary pursuant to subsection (7), in
670 the manner required by the plan of operation, subject to any
671 increase determined to be necessary by the Office of Insurance
672 Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on
673 each July 1 thereafter, the persons and entities listed in
674 paragraphs (4)(b) and (c), except those persons or entities who
675 are specifically excluded from said provisions, shall pay the
676 additional assessments which were determined on January 1.
677 Beginning January 1, 1990, the entities listed in paragraph
678 (4)(a), including those licensed on or after October 1, 1988,
679 shall pay an annual assessment of $50 per infant delivered
680 during the prior calendar year. The additional assessments which
681 were determined on January 1, 1991, pursuant to the provisions
682 of subsection (7) shall not be due and payable by the entities
683 listed in paragraph (4)(a) until July 1.
684 (b) If the assessments collected pursuant to subsection (4)
685 and the appropriation of funds provided by s. 76, chapter 88-1,
686 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
687 Florida, to the plan from the Insurance Regulatory Trust Fund
688 are insufficient to maintain the plan on an actuarially sound
689 basis, there is hereby appropriated for transfer to the
690 association from the Insurance Regulatory Trust Fund an
691 additional amount of up to $20 million.
692 (c)1. Taking into account the assessments collected
693 pursuant to subsection (4) and appropriations from the Insurance
694 Regulatory Trust Fund, if required to maintain the plan on an
695 actuarially sound basis, the Office of Insurance Regulation
696 shall require each entity licensed to issue casualty insurance
697 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
698 association an annual assessment in an amount determined by the
699 office pursuant to paragraph (7)(a), in the manner required by
700 the plan of operation.
701 2. All annual assessments shall be made on the basis of net
702 direct premiums written for the business activity which forms
703 the basis for each such entity’s inclusion as a funding source
704 for the plan in the state during the prior year ending December
705 31, as reported to the Office of Insurance Regulation, and shall
706 be in the proportion that the net direct premiums written by
707 each carrier on account of the business activity forming the
708 basis for its inclusion in the plan bears to the aggregate net
709 direct premiums for all such business activity written in this
710 state by all such entities.
711 3. No entity listed in this paragraph shall be individually
712 liable for an annual assessment in excess of 0.25 percent of
713 that entity’s net direct premiums written.
714 4. Casualty insurance carriers shall be entitled to recover
715 their initial and annual assessments through a surcharge on
716 future policies, a rate increase applicable prospectively, or a
717 combination of the two.
718 (5) (6) (a) The association shall make all assessments
719 required by this section, except initial assessments of
720 physicians newly licensed by the Department of Health, which
721 assessments will be made by the Department of Health, and except
722 assessments of casualty insurers pursuant to paragraph (7)(c)
723 subparagraph (5)(c)1. , which assessments will be made by the
724 office of Insurance Regulation . The Department of Health shall
725 provide the association, in an electronic format, with a monthly
726 report of the names and license numbers of all physicians
727 licensed under chapter 458 or chapter 459.
728 (b)1. The association may enforce collection of assessments
729 required to be paid pursuant to ss. 766.301-766.316 by suit
730 filed in county court, or in circuit court if the amount due
731 could exceed the jurisdictional limits of county court. The
732 association is entitled to an award of attorney fees, costs, and
733 interest upon the entry of a judgment against a physician for
734 failure to pay such assessment, with such interest accruing
735 until paid. Notwithstanding chapters 47 and 48, the association
736 may file such suit in either Leon County or the county of the
737 residence of the defendant. The association shall notify the
738 Department of Health and the applicable board of any unpaid
739 final judgment against a physician within 7 days after the entry
740 of final judgment.
741 2. The Department of Health, upon notification by the
742 association that an assessment has not been paid and that there
743 is an unsatisfied judgment against a physician, shall refuse to
744 renew any license issued to such physician under chapter 458 or
745 chapter 459 until the association notifies the Department of
746 Health that the judgment is satisfied in full.
747 (c) The Agency for Health Care Administration shall, upon
748 notification by the association that an assessment has not been
749 timely paid, enforce collection of such assessments required to
750 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
751 a hospital to pay such assessment is grounds for disciplinary
752 action pursuant to s. 395.1065 notwithstanding any law to the
753 contrary.
754 (6) (9) (a) Within 60 days after a claim is filed, the
755 association shall estimate the present value of the total cost
756 of the claim, including the estimated amount to be paid to the
757 claimant, the claimant’s attorney, the attorney’s fees of the
758 association incident to the claim, and any other expenses that
759 are reasonably anticipated to be incurred by the association in
760 connection with the adjudication and payment of the claim. For
761 purposes of this estimate, the association should include the
762 maximum benefits for noneconomic damages.
763 (b) The association shall revise these estimates quarterly
764 based upon the actual costs incurred and any additional
765 information that becomes available to the association since the
766 last review of this estimate. The estimate shall be reduced by
767 any amounts paid by the association that were included in the
768 current estimate. The association must submit such quarterly
769 estimates to the office within 15 business days after
770 completion.
771 (c) After the revisions of estimates required under
772 paragraph (b), each quarter, the association shall calculate
773 whether the plan is actuarially sound. If the association’s
774 calculation indicates that the plan is not actuarially sound,
775 the association shall immediately notify the office as described
776 in subsection (7). The office must review the association’s
777 calculations and, within 60 days after the association’s
778 notification, determine whether to initiate an actuarial
779 valuation as described in subsection (7), and notify the
780 association of its determination. At a minimum, the office shall
781 make its determination based on the degree to which the
782 association’s calculations indicate that the plan is not
783 actuarially sound, the direction and consistency of recent
784 trends in the calculations of the plan’s actuarial soundness,
785 and the length of time since the most recent actuarial valuation
786 conducted by the office and until the next biennial valuation.
787 The office shall initiate such actuarial valuation within 30
788 days after its determination that there is a need for a
789 valuation.
790 1. If the total of all current estimates equals or exceeds
791 100 percent of the funds on hand and the funds that will become
792 available to the association within the next 12 months from all
793 sources described in subsection (4) and paragraph (5)(a), the
794 association may not accept any new claims without express
795 authority from the Legislature. This section does not preclude
796 the association from accepting any claim if the injury occurred
797 18 months or more before the effective date of this suspension.
798 Within 30 days after the effective date of this suspension, the
799 association shall notify the Governor, the Speaker of the House
800 of Representatives, the President of the Senate, the Office of
801 Insurance Regulation, the Agency for Health Care Administration,
802 and the Department of Health of this suspension.
803 2. Notwithstanding this paragraph, the association is
804 authorized to accept new claims during the 2025-2026 fiscal year
805 if the total of all current estimates exceeds the limits
806 described in subparagraph 1. during that fiscal year. This
807 subparagraph expires July 1, 2026.
808 (d) If any person is precluded from asserting a claim
809 against the association because of paragraph (c), the plan shall
810 not constitute the exclusive remedy for such person, his or her
811 personal representative, parents, dependents, or next of kin.
812 (7)(a) The office of Insurance Regulation shall undertake
813 an actuarial investigation of the requirements of the plan based
814 on the plan’s experience in the first year of operation and any
815 additional relevant information, including without limitation
816 the assets and liabilities of the plan. Pursuant to such
817 investigation, the Office of Insurance Regulation shall
818 establish the rate of contribution of the entities listed in
819 paragraph (5)(c) for the tax year beginning January 1, 1990.
820 Following the initial valuation, the Office of Insurance
821 Regulation shall cause an actuarial valuation to be made of the
822 assets and liabilities of the plan at a minimum no less
823 frequently than biennially on or before December 31 of even
824 numbered years and as provided in subsection (6). Such valuation
825 shall be based on the assets and liabilities of the plan for the
826 calendar year before the year in which the actuarial valuation
827 is due. The office shall also determine whether the plan has
828 adequate estimated cash flow for the following fiscal year,
829 whether, based on the actuarial valuation, the plan is
830 actuarially sound, and if not, whether the plan is likely to
831 return to actuarial soundness before the next biennial review .
832 Pursuant to the results of such valuations, the Office of
833 Insurance Regulation shall prepare a statement as to the
834 contribution rate applicable to the entities listed in paragraph
835 (5)(c). However, at no time shall the rate be greater than 0.25
836 percent of net direct premiums written.
837 (b) If the office determines that the plan lacks adequate
838 cash flow for the following fiscal year pursuant to the review
839 in paragraph (a), the office shall authorize transfers from the
840 Insurance Regulatory Trust Fund to the association within 30
841 calendar days. Cumulative transfers authorized under this
842 paragraph may not exceed $20 million over the life of the plan.
843 (c) (b) If the office of Insurance Regulation finds that the
844 plan is not likely to return to actuarial soundness before the
845 next biennial review pursuant to the review in paragraph (a),
846 the office shall, within 60 calendar days after this finding,
847 order one or more of the following actions:
848 1. Require each entity licensed to issue casualty insurance
849 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
850 association an annual assessment that is calculated to generate
851 a total amount no greater than the amount required to achieve
852 actuarial soundness of the plan within 5 years after the date of
853 the order, subject to the limitations of this subparagraph.
854 a. Such assessments shall be made on the basis of net
855 direct premiums written for the business activity which forms
856 the basis for each such entity’s inclusion as a funding source
857 for the plan in the state during the prior year ending December
858 31, as reported to the office, and shall be in the proportion
859 that the net direct premiums written by each carrier on account
860 of the business activity forming the basis for its inclusion in
861 the plan bears to the aggregate net direct premiums for all such
862 business activity written in this state by all such entities.
863 b. No entity shall be individually liable for an annual
864 assessment in excess of 0.25 percent of that entity’s net direct
865 premiums written.
866 c. Casualty insurance carriers shall be entitled to recover
867 their assessments through a surcharge on future policies, a rate
868 increase applicable prospectively, or a combination of the two.
869 d. An assessment under this subparagraph must not extend 5
870 years after the date of the order.
871 2. If actuarial soundness cannot be achieved after using
872 the remedy in subparagraph 1., increase the assessments
873 specified in subsection (4) on a proportional basis that is
874 calculated to generate a total amount no greater than the amount
875 required to maintain the plan on an actuarially sound basis.
876 (d) If the office finds that the plan is not actuarially
877 sound pursuant to the review in paragraph (a), the plan shall
878 provide the office with quarterly reports projecting the plan’s
879 financial condition and, if assessments were ordered by the
880 office under this subsection, projected revenues for such
881 assessments.
882 (e) If the office finds that the plan is not actuarially
883 sound and the remedies provided under this subsection are
884 insufficient to reestablish the actuarial soundness of the plan,
885 the association shall, within 5 days after such finding, notify
886 the Governor, the President of the Senate, the Speaker of the
887 House of Representatives, and the office. If the notice is
888 issued, the association may not accept any new claims without
889 express authority from the Legislature. This paragraph does not
890 preclude the association from accepting any claim if the injury
891 occurred 18 months or more before the effective date of this
892 suspension.
893 (f) If any person is precluded from asserting a claim
894 against the association because of paragraph (e), the plan shall
895 not constitute the exclusive remedy for such person, his or her
896 personal representative, parents, dependents, or next of kin
897 cannot be maintained on an actuarially sound basis based on the
898 assessments and appropriations listed in subsections (4) and
899 (5), the office shall increase the assessments specified in
900 subsection (4) on a proportional basis as needed .
901 (8) The association shall report to the Legislature its
902 determination as to the annual cost of maintaining the fund on
903 an actuarially sound basis. In making its determination, the
904 association shall consider the recommendations of all hospitals,
905 physicians, casualty insurers, attorneys, consumers, and any
906 associations representing any such person or entity.
907 Notwithstanding the provisions of s. 395.3025, all hospitals,
908 casualty insurers, departments, boards, commissions, and
909 legislative committees shall provide the association with all
910 relevant records and information upon request to assist the
911 association in making its determination. All hospitals shall,
912 upon request by the association, provide the association with
913 information from their records regarding any live birth. Such
914 information shall not include the name of any physician, the
915 name of any hospital employee or agent, the name of the patient,
916 or any other information which will identify the infant involved
917 in the birth. Such information thereby obtained shall be
918 utilized solely for the purpose of assisting the association and
919 shall not subject the hospital to any civil or criminal
920 liability for the release thereof. Such information shall
921 otherwise be confidential and exempt from the provisions of s.
922 119.07(1) and s. 24(a), Art. I of the State Constitution.
923 Section 8. Present subsections (5) through (8) of section
924 766.315, Florida Statutes, are redesignated as subsections (6)
925 through (9), respectively, a new subsection (5) is added to that
926 section, and subsection (1), paragraph (e) of present subsection
927 (5), and present subsections (7) and (8) of that section are
928 amended, to read:
929 766.315 Florida Birth-Related Neurological Injury
930 Compensation Association; board of directors; notice of
931 meetings; report.—
932 (1)(a) The Florida Birth-Related Neurological Injury
933 Compensation Plan shall be governed by a board of seven
934 directors which shall be known as the Florida Birth-Related
935 Neurological Injury Compensation Association. The association is
936 not a state agency, board, or commission. Notwithstanding the
937 provision of s. 15.03, the association is authorized to use the
938 state seal.
939 (b) The directors shall be appointed for staggered terms of
940 3 years or until their successors are appointed and have
941 qualified; however, a director may not serve for more than 6
942 consecutive years.
943 (c) The directors shall be appointed by the Chief Financial
944 Officer as follows:
945 1. One citizen representative who is not affiliated with
946 any of the groups identified in subparagraphs 2.-7.
947 2. One representative of participating physicians.
948 3. One representative of hospitals.
949 4. One representative of casualty insurers.
950 5. One representative of physicians other than
951 participating physicians.
952 6. One family member of a participant parent or legal
953 guardian representative of an injured infant under the plan .
954 7. One representative of an advocacy organization for
955 children with disabilities.
956 (5) Notwithstanding this section, the board of directors
957 may not create new benefits or expand existing benefits that
958 result in additional costs to the plan if the plan is operating
959 at an annual cash flow deficit, as documented in the plan’s
960 audited financial statements for the prior fiscal year. This
961 subsection does not prohibit the plan from providing benefits
962 set forth in s. 766.31.
963 (6) (5)
964 (e) Annually, the association shall furnish audited
965 financial reports to any plan participant upon request, to the
966 office of Insurance Regulation of the Financial Services
967 Commission , and to the Joint Legislative Auditing Committee. The
968 reports must be prepared in accordance with generally accepted
969 auditing standards accounting procedures and must include such
970 information as may be required by the office of Insurance
971 Regulation or the Joint Legislative Auditing Committee. At any
972 time determined to be necessary, the office of Insurance
973 Regulation or the Joint Legislative Auditing Committee may
974 conduct an audit of the plan.
975 (8) (7) The association shall publish a report on its
976 website by January 1 of each year. The report must shall include
977 all of the following :
978 (a) The names and terms of each board member and executive
979 staff member.
980 (b) The amount of compensation paid to each association
981 employee or independent contractor .
982 (c) A summary of reimbursement disputes and resolutions.
983 (d) A list of expenditures for attorney fees and lobbying
984 fees.
985 (e) Other expenses to oppose each plan claim. Any personal
986 identifying information of the parent, legal guardian, or child
987 involved in the claim must be removed from this list.
988 (9) (8) By November 1 of each year, the association shall
989 submit a report to the Governor, the President of the Senate,
990 the Speaker of the House of Representatives, and the Chief
991 Financial Officer. The report must include all of the following :
992 (a) The number of petitions filed for compensation with the
993 division, the number of claimants awarded compensation, the
994 number of claimants denied compensation, and the reasons for the
995 denial of compensation.
996 (b) The number and dollar amount of paid and denied
997 compensation for expenses by category and the reasons for any
998 denied compensation for expenses by category.
999 (c) The average turnaround time for paying or denying
1000 compensation for expenses.
1001 (d) Legislative recommendations to improve the program ,
1002 including to create new benefits or expand current benefits for
1003 participants. Recommendations creating new benefits or expanding
1004 current benefits must include estimates of the costs to the plan
1005 for providing such benefits on an annual basis .
1006 (e) A summary of any pending or resolved litigation during
1007 the year which affects the plan.
1008 (f) The amount of compensation paid to each association
1009 employee , independent contractor, or member of the board of
1010 directors.
1011 Section 9. This act shall take effect upon becoming a law.