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 towardsthe total number of continuing education 140 hours required for the profession. The course must shallbe 141 approved by the board or department, as appropriate, and must 142 shallinclude a study of root-cause analysis, error reduction 143 and prevention, andpatient 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 shallinclude 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.