Florida Senate - 2015                                    SB 1200
       
       
        
       By Senator Brandes
       
       
       
       
       
       22-01131-15                                           20151200__
    1                        A bill to be entitled                      
    2         An act relating to compensation for personal injury or
    3         wrongful death arising from a medical injury; amending
    4         s. 456.013, F.S.; requiring the Department of Health
    5         or certain boards thereof to require the completion of
    6         a course relating to prevention and communication of
    7         medical errors as part of the licensure and renewal
    8         process; providing a directive to the Division of Law
    9         Revision and Information; creating s. 766.401, F.S.;
   10         providing a short title; creating s. 766.402, F.S.;
   11         defining terms; creating s. 766.403, F.S.; providing
   12         legislative findings and intent; specifying that
   13         certain provisions are an exclusive remedy for
   14         personal injury or wrongful death; providing for early
   15         offer of settlement; prohibiting use of the procedures
   16         under this act if a claim has already been settled;
   17         prohibiting compensation from being awarded if the
   18         application is filed by certain persons; creating s.
   19         766.404, F.S.; creating the Patient Compensation
   20         System; providing for a Patient Compensation Board;
   21         providing for membership, meetings, and certain
   22         compensation; providing for specific staff, offices,
   23         committees, and panels and the powers and duties
   24         thereof; prohibiting certain conflicts of interest;
   25         authorizing the board to make rules; creating s.
   26         766.405, F.S.; providing a process for filing
   27         applications for compensation under the system;
   28         providing for notice to the applicant; providing an
   29         application filing period; creating s. 766.406, F.S.;
   30         requiring individuals with relevant clinical expertise
   31         to determine whether the facts stated in the
   32         application, prima facie, rise to a claim for medical
   33         injury; requiring the Office of Medical Review to
   34         immediately notify, by registered or certified mail,
   35         specified parties under certain circumstances;
   36         requiring the notification to inform the provider that
   37         he or she may support the application to expedite the
   38         processing of the application; providing a timeframe
   39         by which a participating provider may support an
   40         application; requiring the Office of Medical Review to
   41         send a rejection letter in certain circumstances to
   42         the applicant by registered or certified mail to
   43         inform the applicant of his or her right to appeal;
   44         authorizing the applicant to appeal the office’s
   45         determination; requiring specified individuals to
   46         review an application that is supported by a
   47         participating provider within a specified timeframe;
   48         requiring the Office of Medical Review to determine
   49         whether the application is valid; requiring the Office
   50         of Medical Review to notify the applicant of a
   51         rejection of the application if it finds the
   52         application is not valid; requiring the Office of
   53         Medical Review to immediately notify relevant law
   54         enforcement authorities in the case of fraud;
   55         requiring the office to complete a thorough
   56         investigation of the application within a specified
   57         time period in certain circumstances; requiring the
   58         investigation to be conducted in a specified form;
   59         requiring the chief medical officer to allow the
   60         applicant and participating provider to access
   61         records, statements, and other information in the
   62         course of its investigation within a specified
   63         timeframe; requiring a chief medical officer to
   64         convene an independent medical review panel to make a
   65         determination within a specified timeframe; requiring
   66         that all information, including information that was
   67         previously redacted, be given to the independent
   68         medical review panel, and requiring the panel to make
   69         a written determination within a specified period;
   70         requiring the panel to dismiss an application under
   71         certain circumstances; requiring a panel to report
   72         that the application supports a claim for medical
   73         injury if it determines by the preponderance of the
   74         evidence that certain criteria are met; requiring the
   75         Office of Medical Review to immediately notify the
   76         participating provider by registered or certified mail
   77         of the right to appeal the determination of the panel;
   78         providing that a participating provider has a
   79         specified timeframe within which to appeal the
   80         determination of the panel; requiring the Office of
   81         Compensation to make a written determination of an
   82         award of compensation in certain circumstances;
   83         requiring the Office of Compensation to notify the
   84         applicant and participating provider by registered or
   85         certified mail of the amount of compensation with an
   86         explanation of the appeals process; providing that the
   87         applicant has a specified time to appeal the award;
   88         requiring compensation for an application to be offset
   89         by any past and future collateral source payments;
   90         requiring the insurer to remit the compensation award
   91         to the Patient Compensation System, which must
   92         immediately provide such compensation to the
   93         applicant; requiring the payment of specified interest
   94         on unpaid awards after a certain date; providing that
   95         the findings under this act do not constitute a
   96         finding of medical malpractice for purposes of s. 26,
   97         Art. X of the State Constitution; requiring the
   98         Patient Compensation System to provide the department
   99         with electronic access to specified applications if
  100         the Patient Compensation Trust Fund determines that
  101         the provider presents an imminent risk of harm to the
  102         public; requiring the department to review specified
  103         applications; creating s. 766.407, F.S.; providing for
  104         review of awards by an administrative law judge;
  105         providing that a determination by an administrative
  106         law judge is conclusive and binding and that a written
  107         decision must be provided to the applicant and the
  108         participating provider; authorizing an applicant to
  109         appeal the award or denial of compensation to the
  110         district court of appeal; requiring appeals to be
  111         filed under specified rules of procedure; authorizing
  112         an administrative law judge to grant an extension upon
  113         a written petition by the applicant or the
  114         participating provider; creating s. 766.408, F.S.;
  115         requiring annual contributions from specified
  116         providers to cover administrative expenses; providing
  117         maximum contribution rates; specifying payment dates;
  118         providing for disciplinary proceedings for failure to
  119         pay; providing for the deposit of funds; authorizing
  120         providers to opt out of participation; providing
  121         requirements for such an election; creating s.
  122         766.409, F.S.; requiring each participating provider
  123         to provide notice to patients of the provider’s
  124         participation in the Patient Compensation System;
  125         creating s. 766.411, F.S.; requiring an annual report
  126         to the Governor and the Legislature; providing for
  127         retroactive applicability; providing an effective
  128         date.
  129          
  130  Be It Enacted by the Legislature of the State of Florida:
  131  
  132         Section 1. Subsection (7) of section 456.013, Florida
  133  Statutes, is amended to read:
  134         456.013 Department; general licensing provisions.—
  135         (7) The boards, or the department when there is no board,
  136  shall require the completion of a 2-hour course relating to
  137  prevention and communication of medical errors as part of the
  138  licensure and renewal process. The 2-hour course counts toward
  139  shall count towards the total number of continuing education
  140  hours required for the profession. The course must shall be
  141  approved by the board or department, as appropriate, and must
  142  shall include a study of root-cause analysis, error reduction
  143  and prevention, and patient safety, and communication of medical
  144  errors to patients and their families. In addition, the course
  145  approved by the Board of Medicine and the Board of Osteopathic
  146  Medicine must shall include information relating to the five
  147  most misdiagnosed conditions during the previous biennium, as
  148  determined by the board. If the course is being offered by a
  149  facility licensed pursuant to chapter 395 for its employees, the
  150  board may approve up to 1 hour of the 2-hour course to be
  151  specifically related to error reduction and prevention methods
  152  used in that facility.
  153         Section 2. The Division of Law Revision and Information is
  154  directed to designate ss. 766.101-766.1185, Florida Statutes, as
  155  part I of chapter 766, Florida Statutes, entitled “Medical
  156  Malpractice and Related Matters”; ss. 766.201-766.212, Florida
  157  Statutes, as part II of that chapter, entitled “Presuit
  158  Investigation and Voluntary Binding Arbitration”; ss. 766.301
  159  766.316, Florida Statutes, as part III of that chapter, entitled
  160  “Birth-Related Neurological Injuries”; and ss. 766.401-766.412,
  161  Florida Statutes, as created by this act, as part IV of that
  162  chapter, entitled “Patient Compensation System.”
  163         Section 3. Section 766.401, Florida Statutes, is created to
  164  read:
  165         766.401 Short title.—This part may be cited as the “Patient
  166  Compensation System.”
  167         Section 4. Section 766.402, Florida Statutes, is created to
  168  read:
  169         766.402 Definitions.—As used in this part, the term:
  170         (1) “Applicant” means a person who files an application
  171  under this part requesting the investigation of an alleged
  172  occurrence of a medical injury.
  173         (2) “Application” means a request for investigation by the
  174  Patient Compensation System of an alleged occurrence of a
  175  medical injury.
  176         (3) “Board” means the Patient Compensation Board as created
  177  in s. 766.404.
  178         (4) “Collateral source” means a payment made to the
  179  applicant, or made on his or her behalf, by or pursuant to:
  180         (a) The federal Social Security Act; a federal, state, or
  181  local income disability act; or any other public program
  182  providing medical expenses, disability payments, or other
  183  similar benefits, except as prohibited by federal law.
  184         (b) A health, sickness, or income disability insurance; an
  185  automobile accident insurance that provides health benefits or
  186  income disability coverage; and any other similar insurance
  187  benefits, except life insurance benefits available to the
  188  applicant, whether purchased by the applicant or provided by
  189  others.
  190         (c) A contract or agreement of any group, organization,
  191  partnership, or corporation to provide, pay for, or reimburse
  192  the costs of hospital, medical, dental, or other health care
  193  services.
  194         (d) A contractual or voluntary wage continuation plan
  195  provided by employers or by a system intended to provide wages
  196  during a period of disability.
  197         (5) “Committee” means, as the context requires, the medical
  198  review committee or the compensation committee.
  199         (6) “Compensation schedule” means a schedule of damages for
  200  medical injuries.
  201         (7) “Department” means the Department of Health.
  202         (8) “Independent medical review panel” or “panel” means a
  203  multidisciplinary panel convened by the chief medical officer
  204  appointed under s. 766.404(2)(f) to review each application.
  205         (9)(a) “Medical injury” means a personal injury or wrongful
  206  death arising out of medical treatment, including a
  207  misdiagnosis, which could have been avoided had the care been
  208  provided by:
  209         1. An individual participating provider, under the care of
  210  an experienced specialist practicing in the same field of care
  211  under the same or similar circumstances or, for a general
  212  practitioner, an experienced general practitioner practicing
  213  under the same or similar circumstances; or
  214         2. A participating provider in a system of care, if the
  215  care was rendered within an optimal system of care under the
  216  same or similar circumstances.
  217         (b) The term includes the failure to use an alternate
  218  course of treatment only if the injury or death could have been
  219  avoided through that alternate course of treatment, and that
  220  alternate course of treatment is an equally or more effective
  221  treatment for the underlying condition. In addition, a medical
  222  injury determination must be based on the information that would
  223  have been known to an experienced specialist or readily
  224  available if an optimal system of care had been available at the
  225  time of the medical treatment.
  226         (c) For purposes of this subsection, the term does not
  227  include an injury or wrongful death arising out of circumstances
  228  in which the medical treatment conformed with national practice
  229  standards for the care and treatment of patients as determined
  230  by the independent medical review panel.
  231         (d) The term shall be construed to encompass a broader
  232  range of personal injuries than are encompassed by a negligence
  233  standard, such that a greater number of applications qualify for
  234  compensation under this part than claims filed under a
  235  negligence standard.
  236         (10) “Office” means the Office of Compensation, the Office
  237  of Medical Review, or the Office of Quality Improvement.
  238         (11) “Panelist” means a person who meets the definition of
  239  a provider under this act.
  240         (12) “Participating provider” means a provider that, at the
  241  time of the medical injury, had paid the contribution required
  242  for participation in the Patient Compensation System for the
  243  year in which the medical injury occurred.
  244         (13) “Patient Compensation System” means the organization
  245  created in s. 766.404.
  246         (14) “Provider” means:
  247         (a) A birth center licensed under chapter 383;
  248         (b) A facility licensed under chapter 390, chapter 395, or
  249  chapter 400;
  250         (c) A home health agency or nurse registry licensed under
  251  part III of chapter 400;
  252         (d) A health care services pool registered under part IX of
  253  chapter 400;
  254         (e) A person certified under s. 401.27;
  255         (f) A person licensed under chapter 457, chapter 458,
  256  chapter 459, chapter 460, chapter 461, chapter 462, chapter 463,
  257  chapter 464, chapter 465, chapter 466, chapter 467, part I, part
  258  II, part III, part IV, part V, part X, part XIII, or part XIV of
  259  chapter 468, chapter 478, part III of chapter 483, or chapter
  260  486;
  261         (g) A clinical laboratory licensed under part I of chapter
  262  483;
  263         (h) A multiphasic health testing center licensed under part
  264  II of chapter 483;
  265         (i) A health maintenance organization authorized under part
  266  I of chapter 641;
  267         (j) A blood bank;
  268         (k) A plasma center;
  269         (l) An industrial clinic;
  270         (m) A renal dialysis facility; or
  271         (n) A professional association partnership, corporation,
  272  joint venture, or other association pertaining to the
  273  professional activity of health care providers.
  274         Section 5. Section 766.403, Florida Statutes, is created to
  275  read:
  276         766.403 Legislative findings and intent; exclusive remedy;
  277  early offers; wrongful death.—
  278         (1) LEGISLATIVE FINDINGS.—The Legislature finds that:
  279         (a) The lack of legal representation, and, thus,
  280  compensation, for the majority of patients with legitimate
  281  medical injuries is creating an access-to-courts crisis.
  282         (b) Seeking compensation through medical malpractice
  283  litigation is a costly and protracted process. Legal counsel may
  284  be able to afford to finance only a small number of legitimate
  285  claims.
  286         (c) Even for injured patients who are able to obtain legal
  287  representation, the delay in obtaining compensation averages 5
  288  years, imposing a significant hardship on injured patients, who
  289  often need access to immediate care and compensation, and their
  290  caregivers.
  291         (d) Because of continued exposure to liability, an
  292  overwhelming majority of physicians practice defensive medicine
  293  by ordering unnecessary tests and procedures, increasing the
  294  cost of health care for individuals covered by public and
  295  private health insurance and exposing patients to unnecessary
  296  clinical risks.
  297         (e) A significant number of physicians, particularly
  298  obstetricians, intend to discontinue providing services in
  299  Florida as a result of the cost and risk of medical liability in
  300  this state.
  301         (f) Recruiting physicians to practice in this state and
  302  ensuring that current physicians continue to practice in this
  303  state is a public necessity.
  304         (2) LEGISLATIVE INTENT.—The Legislature intends:
  305         (a) To avoid excessive medical malpractice litigation by
  306  creating a new remedy through which patients are fairly and
  307  expeditiously compensated for medical injuries. As provided in
  308  this part, this alternative is intended to significantly reduce
  309  the practice of defensive medicine, thereby reducing health care
  310  costs; increase patient safety; increase the number of
  311  physicians practicing in this state; and provide patients fair
  312  and timely compensation without the expense and delay of the
  313  court system. The Legislature intends that this part apply to
  314  all health care facilities and health care providers who are
  315  insured or self-insured against claims for medical malpractice.
  316         (b) That an application filed under this part not
  317  constitute a claim for medical malpractice, that any action on
  318  such an application not constitute a judgment or adjudication
  319  for medical malpractice, and, therefore, that professional
  320  liability insurance companies and self-insured facilities and
  321  providers not be obligated to report such applications, or
  322  actions on such applications, to the National Practitioner Data
  323  Bank.
  324         (c) That, because the Patient Compensation System has the
  325  primary duty to determine the validity and compensation of each
  326  application, an insurer not be subject to a statutory or common
  327  law bad faith cause of action relating to an application filed
  328  under this part.
  329         (3) EXCLUSIVE REMEDY.—Except as provided in part III, the
  330  rights and remedies granted under this part exclude all other
  331  rights and remedies of the applicant and his or her personal
  332  representative, parents, dependents, and next of kin, at common
  333  law or as provided in general law, against any participating
  334  provider directly involved in providing the medical treatment
  335  resulting in such injury or death, arising out of or related to
  336  a medical negligence claim, whether in tort or in contract, with
  337  respect to such injury. Notwithstanding any other law, this part
  338  applies exclusively to applications submitted under this part.
  339         (4) EARLY OFFER.—This part does not prohibit a self-insured
  340  provider or an insurer from providing an early offer of
  341  settlement or apology in satisfaction of a medical injury. A
  342  person who accepts a settlement or apology offer may not then
  343  file an application under this part for the same medical injury.
  344  If an application is filed before an offer of settlement is
  345  made, the acceptance of the settlement offer by the applicant
  346  results in the withdrawal of the application.
  347         (5)WRONGFUL DEATH.—Compensation may not be provided under
  348  this part for an application requesting an investigation of an
  349  alleged wrongful death arising out of medical treatment, if such
  350  application is filed by an adult child on behalf of his or her
  351  parent or by a parent on behalf of his or her adult child.
  352         Section 6. Section 766.404, Florida Statutes, is created to
  353  read:
  354         766.404 Patient Compensation System; board; committees.—
  355         (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation
  356  System is created and administered within the department. The
  357  Patient Compensation System is a separate budget entity that is
  358  not subject to control, supervision, or direction by the
  359  department. The Patient Compensation System administers this
  360  part.
  361         (2) PATIENT COMPENSATION BOARD.—The Patient Compensation
  362  Board is a board of trustees as defined in s. 20.03(12) and is
  363  established to govern the Patient Compensation System. The board
  364  must comply with the requirements of s. 20.052, except as
  365  provided in this subsection.
  366         (a) Members.—The board consists of 11 members who represent
  367  the medical, legal, patient, and business communities from
  368  diverse geographic areas throughout the state. Members of the
  369  board serve at the pleasure of the Governor and are appointed by
  370  the Governor as follows:
  371         1. Five members, one of whom must be an allopathic or
  372  osteopathic physician, one of whom must be an executive in the
  373  business community, one of whom must be a hospital
  374  administrator, one of whom must be a certified public
  375  accountant, and one of whom must be a member of The Florida Bar,
  376  all of whom must actively practice or work in this state.
  377         2. Three members selected from a list of persons
  378  recommended by the President of the Senate who practice
  379  allopathic or osteopathic medicine or who are patient advocates.
  380  At least one member must be an allopathic or osteopathic
  381  physician, and at least one member must be a patient advocate.
  382  All three members must be in active practice or reside in this
  383  state.
  384         3. Three members selected from a list of persons
  385  recommended by the Speaker of the House of Representatives who
  386  practice allopathic or osteopathic medicine or who are patient
  387  advocates. At least one member must be an allopathic or
  388  osteopathic physician, and at least one member must be a patient
  389  advocate. All three members must be in active practice or reside
  390  in this state.
  391         (b) Terms of appointment.—Members are appointed to 4-year
  392  terms. For the purpose of providing staggered terms, of the
  393  initial appointments, the five members appointed pursuant to
  394  subparagraph 1. shall be appointed to 2-year terms, and the
  395  remaining six members pursuant to subparagraphs 2. and 3. shall
  396  be appointed to 3-year terms. If a vacancy occurs on the board
  397  before the expiration of a term, the Governor shall appoint a
  398  successor to serve the remainder of the term.
  399         (c) Chair and vice chair.—The board shall annually elect
  400  from its membership a chair of the board and a vice chair.
  401         (d) Meetings.—The first meeting of the board must be held
  402  no later than August 1, 2015. Thereafter, the board must meet at
  403  least quarterly upon the call of the chair. A majority of the
  404  board members constitutes a quorum. Meetings may be held by
  405  teleconference, web conference, or other electronic means.
  406         (e) Compensation.—Members of the board serve without
  407  compensation but may be reimbursed for per diem and travel
  408  expenses for required attendance at board meetings in accordance
  409  with s. 112.061.
  410         (f) Powers and duties of the board.—The board has the
  411  following powers and duties:
  412         1. Ensuring the operation of the Patient Compensation
  413  System in accordance with applicable federal and state laws,
  414  rules, and regulations.
  415         2. Entering into contracts as necessary to administer this
  416  part.
  417         3. Employing an executive director and other staff as
  418  necessary to perform the functions of the Patient Compensation
  419  System, except that the Governor appoints the initial executive
  420  director.
  421         4. Approving the hiring of a chief compensation officer and
  422  chief medical officer, as recommended by the executive director.
  423         5. Approving a schedule of compensation for medical
  424  injuries, as recommended by the compensation committee.
  425         6. Approving medical review panelists as recommended by the
  426  medical review committee.
  427         7. Approving an annual budget.
  428         8. Annually approving provider contribution amounts.
  429         (g) Powers and duties of staff.—The executive director
  430  shall oversee the operation of the Patient Compensation System
  431  in accordance with this part. The following staff shall report
  432  directly to and serve at the pleasure of the executive director:
  433         1. Advocacy director.—The advocacy director shall ensure
  434  that each applicant is provided high quality individual
  435  assistance throughout the process, from initial filing to
  436  disposition of the application. The advocacy director shall
  437  assist each applicant in determining whether to retain an
  438  attorney, which assistance shall include an explanation of
  439  possible fee arrangements and the advantages and disadvantages
  440  of retaining an attorney. If the applicant seeks to file an
  441  application without an attorney, the advocacy director shall
  442  assist the applicant in filing the application. In addition, the
  443  advocacy director shall regularly provide status reports to the
  444  applicant regarding his or her application.
  445         2. Chief compensation officer.—The chief compensation
  446  officer shall manage the Office of Compensation. The chief
  447  compensation officer shall recommend to the compensation
  448  committee a compensation schedule for each type of medical
  449  injury. The chief compensation officer may not be a licensed
  450  physician or an attorney.
  451         3. Chief financial officer.—The chief financial officer is
  452  responsible for overseeing the financial operations of the
  453  Patient Compensation System, including the annual development of
  454  a budget.
  455         4. Chief legal officer.—The chief legal officer shall
  456  represent the Patient Compensation System in all contested
  457  applications, oversee the operation of the Patient Compensation
  458  System to ensure compliance with established procedures, and
  459  ensure adherence to all applicable federal and state laws,
  460  rules, and regulations.
  461         5. Chief medical officer.—The chief medical officer must be
  462  a physician licensed under chapter 458 or chapter 459 and shall
  463  manage the Office of Medical Review. The chief medical officer
  464  shall recommend to the medical review committee a qualified list
  465  of multidisciplinary panelists for independent medical review
  466  panels. In addition, the chief medical officer shall convene
  467  independent medical review panels as necessary to review
  468  applications.
  469         6. Chief quality officer.—The chief quality officer shall
  470  manage the Office of Quality Improvement.
  471         (3) OFFICES.—The following offices are established within
  472  the Patient Compensation System:
  473         (a) Office of Medical Review.—The Office of Medical Review
  474  shall evaluate and, as necessary, investigate all applications
  475  in accordance with this part. For the purpose of an
  476  investigation of an application, the office has the power to
  477  administer oaths, take depositions, issue subpoenas, compel the
  478  attendance of witnesses and the production of papers, documents,
  479  and other evidence, and obtain patient records if the patient
  480  consents.
  481         (b) Office of Compensation.—The Office of Compensation
  482  shall allocate compensation for each application in accordance
  483  with the compensation schedule adopted pursuant to subparagraph
  484  (2)(f)5.
  485         (c) Office of Quality Improvement.—The Office of Quality
  486  Improvement shall regularly review application data to conduct
  487  root cause analyses and develop and disseminate best practices
  488  based on the reviews. In addition, the office shall capture and
  489  record safety-related data obtained during an investigation
  490  conducted by the Office of Medical Review, including the cause
  491  of, the factors contributing to, and any interventions that may
  492  have prevented the medical injury.
  493         (4) COMMITTEES.—The board shall create a medical review
  494  committee and a compensation committee. The board may create
  495  additional committees as necessary to assist in the performance
  496  of its duties and responsibilities.
  497         (a) Members.—Each committee consists of three board members
  498  chosen by a majority vote of the board.
  499         1. The medical review committee is composed of two
  500  physicians and a member who is not an attorney. The board
  501  designates one of the physician members as chair of the
  502  committee.
  503         2. The compensation committee is composed of a certified
  504  public accountant and two members who are not physicians or
  505  attorneys. The certified public accountant serves as chair of
  506  the committee.
  507         (b) Terms of appointment.—Members of each committee are
  508  appointed to 2-year terms concurrent with their respective terms
  509  as board members. If a vacancy occurs on a committee, the board
  510  shall appoint a successor to serve the remainder of the term. A
  511  committee member who is removed or resigns from the board must
  512  be removed from the committee.
  513         (c) Chair and vice chair.—The board shall annually
  514  designate a chair, pursuant to paragraph (a), and a vice chair
  515  of each committee.
  516         (d) Meetings.—Each committee must meet at least quarterly
  517  and at the specific direction of the board. Meetings may be held
  518  by teleconference, web conference, or other electronic means.
  519         (e) Powers and duties.
  520         1. The medical review committee shall recommend to the
  521  board a comprehensive, multidisciplinary list of panelists who
  522  are eligible to serve on the independent medical review panels
  523  as needed.
  524         2. The compensation committee shall, in consultation with
  525  the chief compensation officer, recommend to the board:
  526         a. A compensation schedule, formulated such that the
  527  aggregate cost of medical malpractice and the aggregate of
  528  provider contributions are equal to or less than the prior
  529  fiscal year’s aggregate cost of medical malpractice. Thereafter,
  530  the committee shall annually review the compensation schedule
  531  and, if necessary, recommend a revised schedule, such that a
  532  projected increase in the upcoming fiscal year’s aggregate cost
  533  of medical malpractice, including insured and self-insured
  534  providers, does not exceed the percentage change from the prior
  535  year in the medical care component of the Consumer Price Index
  536  for All Urban Consumers published by the United States
  537  Department of Labor.
  538         b. Guidelines for the payment of compensation awards
  539  through periodic payments.
  540         c. Guidelines for the apportionment of compensation among
  541  multiple providers, which guidelines shall be based on the
  542  historical apportionment among multiple providers for similar
  543  injuries with similar severity.
  544         (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
  545  officer shall convene an independent medical review panel to
  546  evaluate each application to determine whether a medical injury
  547  occurred. Each panel shall be composed of an odd number of at
  548  least three panelists chosen from a list of panelists
  549  representing the same or similar specialty as the provider who
  550  is the subject of the application. The panel shall convene,
  551  either in person or by teleconference, upon the call of the
  552  chief medical officer. Each panelist shall be paid a stipend as
  553  determined by the board for his or her service on the panel. In
  554  order to expedite the review of applications, the chief medical
  555  officer may, whenever practicable, group related applications
  556  together for consideration by a single panel.
  557         (6) CONFLICTS OF INTEREST.—A board member, panelist, or
  558  employee of the Patient Compensation System may not engage in
  559  any conduct that constitutes a conflict of interest. For
  560  purposes of this subsection, the term “conflict of interest”
  561  means a situation in which the private interest of a board
  562  member, panelist, or employee could influence his or her
  563  judgment in the performance of his or her duties under this
  564  part. A board member, panelist, or employee must immediately
  565  disclose in writing the existence of a conflict of interest when
  566  the board member, panelist, or employee knows or should
  567  reasonably know that the factual circumstances surrounding a
  568  particular application constitutes a conflict of interest. A
  569  board member, panelist, or employee who violates this subsection
  570  is subject to disciplinary action as determined by the board. A
  571  conflict of interest includes, but is not limited to:
  572         (a) Conduct that would lead a reasonable person having
  573  knowledge of all of the circumstances to conclude that a board
  574  member, panelist, or employee is biased against or in favor of
  575  an applicant.
  576         (b) Participation in an application in which the board
  577  member, panelist, or employee, or the parent, spouse, or child
  578  of a board member, panelist, or employee, has a financial
  579  interest.
  580         (7) RULEMAKING.—The board shall adopt rules to implement
  581  and administer this part, including rules addressing:
  582         (a) The application process, including forms necessary to
  583  collect relevant information from applicants.
  584         (b) Disciplinary procedures for a board member, panelist,
  585  or employee who violates subsection (6).
  586         (c) Stipends paid to panelists for their service on an
  587  independent medical review panel, which stipends may be scaled
  588  in accordance with the relative scarcity of the provider’s
  589  specialty, if applicable.
  590         (d) Payment of compensation awards through periodic
  591  payments and the apportionment of compensation among multiple
  592  providers, as recommended by the compensation committee.
  593         (e) An opt-out process for providers who do not want to
  594  participate in the Patient Compensation System.
  595         Section 7. Section 766.405, Florida Statutes, is created to
  596  read:
  597         766.405 Filing of applications.—
  598         (1) CONTENT.—In order to obtain compensation for a medical
  599  injury, an applicant or his or her legal representative must
  600  file an application with the Patient Compensation System. The
  601  application must include the following:
  602         (a) The name and address of the applicant or his or her
  603  legal representative, and the authority under which the
  604  representative is acting on behalf of the applicant.
  605         (b) The name and address of any participating provider who
  606  provided medical treatment that allegedly gave rise to the
  607  medical injury.
  608         (c) A brief statement of the facts and circumstances
  609  surrounding the medical injury which gave rise to the
  610  application.
  611         (d) An authorization for release to the Office of Medical
  612  Review of all protected health information that is potentially
  613  relevant to the application.
  614         (e) Any other information that the applicant believes will
  615  be beneficial to the investigatory process, including the names
  616  of potential witnesses.
  617         (f) Documentation of any applicable private or governmental
  618  source of services or reimbursement relative to the medical
  619  injury.
  620         (2) INCOMPLETE APPLICATIONS.—If an application is
  621  incomplete, the Patient Compensation System shall notify the
  622  applicant in writing, within 30 days after the receipt of the
  623  initial application, of any errors or omissions. An applicant
  624  has 30 days after receipt of the notice in which to correct the
  625  errors or omissions in the initial application.
  626         (3) TIME LIMITATION ON APPLICATIONS.—An application must be
  627  filed within the time periods specified for medical malpractice
  628  actions in s. 95.11(4)(b). The applicable time period is tolled
  629  from the date of the filing of an application until the date of
  630  the receipt by the applicant of the results of the initial
  631  medical review under s. 766.406.
  632         (4) SUPPLEMENTAL INFORMATION.—After the filing of an
  633  application, the applicant may supplement the initial
  634  application with additional information that the applicant
  635  believes may be beneficial in the resolution of the application.
  636         (5) LEGAL COUNSEL.—This part does not prohibit an applicant
  637  or participating provider from retaining an attorney to
  638  represent the applicant or participating provider in the review
  639  and resolution of an application.
  640         Section 8. Section 766.406, Florida Statutes, is created to
  641  read:
  642         766.406 Disposition of applications.—
  643         (1) INITIAL MEDICAL REVIEW.—Individuals with relevant
  644  clinical expertise in the Office of Medical Review shall, within
  645  10 days after the receipt of a completed application, determine
  646  whether the facts stated in the application give rise to a prima
  647  facie claim for medical injury.
  648         (a) If the Office of Medical Review determines that the
  649  facts stated in the application give rise to a prima facie claim
  650  for medical injury, the office shall immediately notify by
  651  registered or certified mail each participating provider named
  652  in the application and, for participating providers that are not
  653  self-insured, the insurer that provides coverage to the
  654  provider. The notification shall inform the participating
  655  provider that he or she may support the application to expedite
  656  the processing of the application. A participating provider has
  657  15 days after the receipt of notification of an application to
  658  support the application. If the participating provider supports
  659  the application, the Office of Medical Review shall review the
  660  application in accordance with subsection (2).
  661         (b) If the Office of Medical Review determines that the
  662  facts stated in the application do not give rise to a prima
  663  facie claim for medical injury, the office shall send a
  664  rejection letter to the applicant by registered or certified
  665  mail informing the applicant of his or her right to appeal. The
  666  applicant has 15 days after the receipt of the letter in which
  667  to appeal the determination of the office pursuant to s.
  668  766.407.
  669         (2) EXPEDITED MEDICAL REVIEW.—An application that is
  670  supported by a participating provider in accordance with
  671  subsection (1) shall be reviewed by individuals with relevant
  672  clinical expertise in the Office of Medical Review within 30
  673  days after notification of the participating provider’s support
  674  of the application to determine the validity of the application.
  675  If the Office of Medical Review finds that the application is
  676  valid, the Office of Compensation shall determine an award of
  677  compensation in accordance with subsection (4). If the Office of
  678  Medical Review finds that the application is not valid, the
  679  office shall immediately notify the applicant of the rejection
  680  of the application and, in the case of fraud, shall immediately
  681  notify relevant law enforcement authorities.
  682         (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
  683  determines that the facts stated in the application give rise to
  684  a prima facie claim for medical injury and the participating
  685  provider does not elect to support the application, the office
  686  shall complete a thorough investigation of the application
  687  within 60 days after the initial determination. The
  688  investigation shall be conducted by a multidisciplinary team
  689  with relevant clinical expertise and must include a thorough
  690  investigation of all available documentation, witnesses, and
  691  other information. Within 15 days after the completion of the
  692  investigation, the chief medical officer shall allow the
  693  applicant and the participating provider to access records,
  694  statements, and other information obtained in the course of its
  695  investigation, in accordance with relevant state and federal
  696  laws.
  697         (a) Within 30 days after the completion of the
  698  investigation, the chief medical officer shall convene an
  699  independent medical review panel to determine whether the facts
  700  stated in the application give rise to a claim for medical
  701  injury. The independent medical review panel must have access to
  702  all information, including information that was previously
  703  redacted, which was obtained by the office in the course of its
  704  investigation of the application. The panel shall complete its
  705  review and make a written determination within 10 days after
  706  convening. The panel’s written determination shall be
  707  immediately provided to the applicant and the participating
  708  provider.
  709         (b)1.If the panel determines that the medical intervention
  710  conformed to national practice standards for the care and
  711  treatment of patients, the application shall be dismissed and
  712  the provider may not be held responsible for the patient’s
  713  medical injury.
  714         2. The panel shall report that the facts stated in the
  715  application support the claim for medical injury if it
  716  determines by a preponderance of the evidence that the following
  717  criteria are met:
  718         a. The provider performed a medical service on the
  719  applicant;
  720         b. The applicant suffered a personal injury or death;
  721         c. The medical service was the proximate cause of the
  722  personal injury or death; and
  723         d.One or more of the following, as determined in
  724  accordance with s. 766.402(9):
  725         (I)An accepted method of medical services was not used for
  726  treatment.
  727         (II)An accepted method of medical services was used for
  728  treatment, but was executed in a substandard fashion.
  729         (III)An accepted method was used, but, the personal injury
  730  or death could have been avoided by using a less invasive, but
  731  equally or more effective, treatment.
  732         (c) If the independent medical review panel determines that
  733  the facts stated in the application support the claim for
  734  medical injury, the Office of Medical Review shall immediately
  735  notify the participating provider by registered or certified
  736  mail of the right to appeal the determination of the panel. The
  737  participating provider has 15 days after the receipt of the
  738  letter in which to appeal the determination of the panel
  739  pursuant to s. 766.407.
  740         (d) If the independent medical review panel determines that
  741  the facts stated in the application do not support the claim for
  742  medical injury, the Office of Medical Review shall immediately
  743  notify the applicant by registered or certified mail of his or
  744  her right to appeal the determination of the panel. The
  745  applicant has 15 days after the receipt of the letter to appeal
  746  the determination of the panel pursuant to s. 766.407.
  747         (4) COMPENSATION REVIEW.—If an independent medical review
  748  panel finds that the facts stated in an application support the
  749  claim for medical injury under subsection (3) and all appeals of
  750  that finding have been exhausted by the participating provider
  751  pursuant to s. 766.407, the Office of Compensation shall, within
  752  30 days after the later of the finding of the panel or the
  753  exhaustion of all appeals make a written determination of an
  754  award of compensation in accordance with the compensation
  755  schedule and the findings of the panel. The office shall notify
  756  the applicant and the participating provider by registered or
  757  certified mail of the amount of compensation and shall explain
  758  to the applicant the process for appealing the award of
  759  compensation. The applicant has 15 days after the date of
  760  receipt of the letter to appeal the award as provided in s.
  761  766.407.
  762         (5) LIMITATION ON COMPENSATION.—Compensation for damages
  763  must be offset by any past and future collateral source
  764  payments. In addition, compensation may be paid by periodic
  765  payments as determined by the Office of Compensation in
  766  accordance with rules adopted by the board.
  767         (6) PAYMENT OF COMPENSATION.—Within 14 days after the
  768  acceptance of compensation by the applicant or the conclusion of
  769  all appeals pursuant to s. 766.407, the participating provider
  770  or, for a participating provider who has insurance coverage, the
  771  insurer must remit the compensation award to the Patient
  772  Compensation System, which must immediately provide compensation
  773  to the applicant in accordance with the final compensation
  774  award. Beginning the later of 45 days after the acceptance of
  775  compensation by the applicant or the conclusion of all appeals
  776  pursuant to s. 766.407, an unpaid award begins to accrue
  777  interest at the rate of 18 percent per year.
  778         (7) DETERMINATION OF MEDICAL MALPRACTICE.—The findings
  779  issued under this part do not constitute a finding of medical
  780  malpractice for purposes of s. 26, Art. X of the State
  781  Constitution.
  782         (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
  783  System shall provide the department with electronic access to
  784  applications that lead to a determination that a medical injury
  785  occurred when they involve health care providers licensed under
  786  chapter 458, chapter 459, chapter 460, part I of chapter 464, or
  787  chapter 466, if the Patient Compensation Trust Fund determines
  788  that the provider presents an imminent risk of harm to the
  789  public. The department shall review these applications to
  790  determine whether any of the incidents that resulted in the
  791  application potentially involve conduct by the licensee which is
  792  subject to disciplinary action, in which case s. 456.073
  793  applies.
  794         Section 9. Section 766.407, Florida Statutes, is created to
  795  read:
  796         766.407 Review by administrative law judge; appellate
  797  review; extensions of time.—
  798         (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative
  799  law judge shall hear and determine appeals filed pursuant to s.
  800  766.406 and shall exercise the full power and authority granted
  801  to him or her in chapter 120, as necessary, to carry out the
  802  purposes of that section. The administrative law judge shall be
  803  limited in his or her review to determining whether the Office
  804  of Medical Review, the independent medical review panel, or the
  805  Office of Compensation, as appropriate, has faithfully followed
  806  the requirements of this part, and rules adopted thereunder, in
  807  reviewing applications. If the administrative law judge
  808  determines that the requirements were not followed in reviewing
  809  an application, he or she shall require the chief medical
  810  officer to reconvene the original panel or convene a new panel,
  811  or require the Office of Compensation to redetermine the
  812  compensation amount in accordance with the determination of the
  813  judge.
  814         (2) APPELLATE REVIEW.—A determination by an administrative
  815  law judge under this section regarding the award or denial of
  816  compensation under this part shall be conclusive and binding as
  817  to all questions of fact and shall be provided to the applicant
  818  and the participating provider. An applicant may appeal the
  819  award or denial of compensation to the district court of appeal.
  820  Appeals shall be filed in accordance with rules of procedure
  821  adopted by the Supreme Court for review of such orders.
  822         (3) EXTENSIONS OF TIME.—Upon a written petition by either
  823  the applicant or the participating provider, an administrative
  824  law judge may grant, for good cause, an extension of any of the
  825  time periods specified in this part. The relevant time period is
  826  tolled from the date of the written petition until the date of
  827  the determination by the administrative law judge.
  828         Section 10. Section 766.408, Florida Statutes, is created
  829  to read:
  830         766.408 Expenses of administration; opt out.—
  831         (1) The board shall annually determine the required
  832  contribution of each participating provider in the Patient
  833  Compensation System. The required contribution amount shall be
  834  determined by January 1 of each year based on the anticipated
  835  expenses of the administration of this part for the next state
  836  fiscal year.
  837         (2) The required contribution rate may not exceed the
  838  following amounts:
  839         (a) For an individual with certification or recertification
  840  under section 401.27, a chiropractic assistant licensed under
  841  chapter 460, or, with the exception of health care providers
  842  specified in paragraph (b), an individual licensed under chapter
  843  461, chapter 462, chapter 463, chapter 464, chapter 465, chapter
  844  466, chapter 467, part I, part II, part III, part IV, part V,
  845  part X, part XIII, or part XIV of chapter 468, chapter 478, part
  846  III of chapter 483, or chapter 486, $100 per licensee.
  847         (b) For an anesthesiology assistant or physician assistant
  848  licensed under chapter 458 or chapter 459 or a certified
  849  registered nurse anesthetist certified under part I of chapter
  850  464, $250 per licensee.
  851         (c) For a physician licensed under chapter 458, chapter
  852  459, or chapter 460, $600 per licensee. The contribution for the
  853  initial fiscal year shall be $500 per licensee.
  854         (d) For a facility licensed under part II of chapter 400,
  855  $100 per bed.
  856         (e) For a facility licensed under chapter 395, $200 per
  857  bed, except that the required contribution for the initial
  858  fiscal year is $100 per bed.
  859         (f) For any provider not otherwise described in this
  860  subsection, $2,500 per registrant or licensee.
  861         (3) The required contribution determined under this section
  862  is payable by each participating provider within 30 days after
  863  the date the notice of the required contribution is delivered to
  864  the provider. If a participating provider fails to pay the
  865  required contribution within 30 days after delivery of the
  866  initial notice, the board shall notify the provider by certified
  867  or registered mail that the provider’s license is subject to
  868  revocation if the required contribution is not paid within 60
  869  days after the date of the original notice.
  870         (4) A provider who does not opt out of participation
  871  pursuant to subsection (6) and who fails to pay the required
  872  contribution amount determined under this section within 60 days
  873  after receipt of the original notice shall be subject to a
  874  licensure revocation action or discipline by the department, the
  875  Agency for Health Care Administration, or the relevant
  876  regulatory board, as applicable.
  877         (5) All amounts collected under this section shall be paid
  878  into the Patient Compensation Trust Fund established in s.
  879  766.412.
  880         (6) A provider may elect to opt out of participation in the
  881  Patient Compensation System. The election to opt out must be
  882  made in writing no later than 15 days before the due date of the
  883  contribution required under this section. A provider who opts
  884  out may subsequently elect to participate by paying the
  885  appropriate contribution amount for the current fiscal year.
  886         Section 11. Section 766.409, Florida Statutes, is created
  887  to read:
  888         766.409 Notice to patients of participation in the Patient
  889  Compensation System.—
  890         (1) Each participating provider must provide notice to
  891  patients that the provider is participating in the Patient
  892  Compensation System. The notice shall be provided on a form
  893  furnished by the Patient Compensation System and shall include a
  894  concise explanation of a patient’s rights and benefits under the
  895  system.
  896         (2) Notice is not required to be given to a patient when
  897  the patient has an emergency medical condition, with respect to
  898  a pregnant woman, as defined in s. 395.002(8)(b) or when notice
  899  is not practicable.
  900         Section 12. Section 766.411, Florida Statutes, is created
  901  to read:
  902         766.411 Annual report.—Beginning on October 1, 2017, the
  903  board shall annually submit to the Governor, the President of
  904  the Senate, and the Speaker of the House of Representatives a
  905  report that describes the filing and disposition of applications
  906  in the preceding fiscal year. The report shall include, in the
  907  aggregate, the number of applications, the disposition of such
  908  applications, and the compensation awarded.
  909         Section 13. This act applies to medical incidents for which
  910  a notice of intent to initiate litigation has not been mailed
  911  before July 1, 2016.
  912         Section 14. This act shall take effect July 1, 2016.