Florida Senate - 2021                          SENATOR AMENDMENT
       Bill No. CS/CS/SB 1786, 1st Eng.
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
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       Senator Burgess moved the following:
       
    1         Senate Amendment to House Amendment (401309) (with title
    2  amendment)
    3  
    4         Delete lines 44 - 342
    5  and insert:
    6  At a minimum, compensation must be provided for the following
    7  actual expenses:
    8         1.A total annual benefit of up to $10,000 for immediate
    9  family members who reside with the infant for psychotherapeutic
   10  services obtained from providers licensed under chapter 490 or
   11  chapter 491.
   12         2.For the life of the child, providing parents or legal
   13  guardians with a reliable method of transportation for the care
   14  of the child or reimbursing the cost of upgrading an existing
   15  vehicle to accommodate the child’s needs when it becomes
   16  medically necessary for wheelchair transportation. The mode of
   17  transportation must take into account the special accommodations
   18  required for the specific child. The plan may not limit such
   19  transportation assistance based on the child’s age or weight.
   20  The plan must replace any vans purchased by the plan every 7
   21  years or 150,000 miles, whichever comes first.
   22         3.Housing assistance of up to $100,000 for the life of the
   23  child, including home construction and modification costs.
   24         (b) However, the following expenses are not subject to
   25  compensation such expenses shall not include:
   26         1. Expenses for items or services that the infant has
   27  received, or is entitled to receive, under the laws of any state
   28  or the Federal Government, except to the extent such exclusion
   29  may be prohibited by federal law.
   30         2. Expenses for items or services that the infant has
   31  received, or is contractually entitled to receive, from any
   32  prepaid health plan, health maintenance organization, or other
   33  private insuring entity.
   34         3. Expenses for which the infant has received
   35  reimbursement, or for which the infant is entitled to receive
   36  reimbursement, under the laws of any state or the Federal
   37  Government, except to the extent such exclusion may be
   38  prohibited by federal law.
   39         4. Expenses for which the infant has received
   40  reimbursement, or for which the infant is contractually entitled
   41  to receive reimbursement, pursuant to the provisions of any
   42  health or sickness insurance policy or other private insurance
   43  program.
   44         (c) Expenses included under this paragraph (a) are shall be
   45  limited to reasonable charges prevailing in the same community
   46  for similar treatment of injured persons when such treatment is
   47  paid for by the injured person. The parents or legal guardians
   48  receiving benefits under the plan may file a petition with the
   49  Division of Administrative Hearings to dispute the amount of
   50  actual expenses reimbursed or a denial of reimbursement.
   51         (d)1.a.(b)1. Periodic payments of an award to the parents
   52  or legal guardians of the infant found to have sustained a
   53  birth-related neurological injury, which award may shall not
   54  exceed $100,000. However, at the discretion of the
   55  administrative law judge, such award may be made in a lump sum.
   56  Beginning on January 1, 2021, the award may not exceed $250,000,
   57  and each January 1 thereafter, the maximum award authorized
   58  under this paragraph shall increase by 3 percent.
   59         b.Parents or legal guardians who received an award
   60  pursuant to this section before January 1, 2021, and whose child
   61  currently receives benefits under the plan must receive a
   62  retroactive payment in an amount sufficient to bring the total
   63  award paid to the parents or legal guardians pursuant to sub
   64  subparagraph a. to $250,000. This additional payment may be made
   65  in a lump sum or in periodic payments as designated by the
   66  parents or legal guardians.
   67         2.a. Death benefit for the infant in an amount of $50,000.
   68         b.Parents or legal guardians who received an award
   69  pursuant to this section, and whose child died since the
   70  inception of the program, must receive a retroactive payment in
   71  an amount sufficient to bring the total award paid to the
   72  parents or legal guardians pursuant to sub-subparagraph a. to
   73  $50,000. This additional payment may be made in a lump sum or in
   74  periodic payments as designated by the parents or legal
   75  guardians $10,000.
   76         Section 4. Section 766.3145, Florida Statutes, is created
   77  to read:
   78         766.3145Code of ethics.—
   79         (1)On or before July 1 of each year, employees of the
   80  association must sign and submit a statement attesting that they
   81  do not have a conflict of interest as defined in part III of
   82  chapter 112. As a condition of employment, all prospective
   83  employees must sign and submit to the association a conflict-of
   84  interest statement.
   85         (2)The executive director, senior managers, and members of
   86  the board of directors are subject to the code of ethics under
   87  part III of chapter 112. For purposes of applying part III of
   88  chapter 112 to activities of the executive director, senior
   89  managers, and members of the board of directors, those persons
   90  are considered public officers or employees and the association
   91  is considered their agency. A board member may not vote on any
   92  measure that would inure to his or her special private gain or
   93  loss and, notwithstanding s. 112.3143(2), may not vote on any
   94  measure that he or she knows would inure to the special private
   95  gain or loss of any principal by whom he or she is retained or
   96  to the parent organization or subsidiary of a corporate
   97  principal by which he or she is retained, other than an agency
   98  as defined in s. 112.312; or that he or she knows would inure to
   99  the special private gain or loss of a relative or business
  100  associate of the public officer. Before the vote is taken, such
  101  member shall publicly state to the board the nature of his or
  102  her interest in the matter from which he or she is abstaining
  103  from voting and, within 15 days after the vote occurs, disclose
  104  the nature of his or her interest as a public record in a
  105  memorandum filed with the person responsible for recording the
  106  minutes of the meeting, who shall incorporate the memorandum in
  107  the minutes.
  108         (3)Notwithstanding s. 112.3148, s. 112.3149, or any other
  109  law, an employee or board member may not knowingly accept,
  110  directly or indirectly, any gift or expenditure from a person or
  111  entity, or an employee or representative of such person or
  112  entity, which has a contractual relationship with the
  113  association or which is under consideration for a contract.
  114         (4)An employee or board member who fails to comply with
  115  subsection (2) or subsection (3) is subject to penalties
  116  provided under ss. 112.317 and 112.3173.
  117         (5)Any senior manager or executive director of the
  118  association who is employed on or after January 1, 2022,
  119  regardless of the date of hire, who subsequently retires or
  120  terminates employment is prohibited from representing another
  121  person or entity before the association for 2 years after
  122  retirement or termination of employment from the association.
  123         Section 5. Section 766.315, Florida Statutes, is amended to
  124  read:
  125         766.315 Florida Birth-Related Neurological Injury
  126  Compensation Association; board of directors; notice of
  127  meetings; report.—
  128         (1)(a) The Florida Birth-Related Neurological Injury
  129  Compensation Plan shall be governed by a board of seven five
  130  directors which shall be known as the Florida Birth-Related
  131  Neurological Injury Compensation Association. The association is
  132  not a state agency, board, or commission. Notwithstanding the
  133  provision of s. 15.03, the association is authorized to use the
  134  state seal.
  135         (b) The directors shall be appointed for staggered terms of
  136  3 years or until their successors are appointed and have
  137  qualified; however, a director may not serve for more than 6
  138  consecutive years.
  139         (c) The directors shall be appointed by the Chief Financial
  140  Officer as follows:
  141         1. One citizen representative who is not affiliated with
  142  any of the groups identified in subparagraphs 2.-7.
  143         2. One representative of participating physicians.
  144         3. One representative of hospitals.
  145         4. One representative of casualty insurers.
  146         5. One representative of physicians other than
  147  participating physicians.
  148         6.One parent or legal guardian representative of an
  149  injured infant under the plan.
  150         7.One representative of an advocacy organization for
  151  children with disabilities.
  152         (2)(a) The Chief Financial Officer may select the
  153  representative of the participating physicians from a list of at
  154  least three names recommended by the American Congress of
  155  Obstetricians and Gynecologists, District XII; the
  156  representative of hospitals from a list of at least three names
  157  recommended by the Florida Hospital Association; the
  158  representative of casualty insurers from a list of at least
  159  three names, one of which is recommended by the American
  160  Insurance Association, one of which is recommended by the
  161  Florida Insurance Council, and one of which is recommended by
  162  the Property Casualty Insurers Association of America; and the
  163  representative of physicians, other than participating
  164  physicians, from a list of three names recommended by the
  165  Florida Medical Association and a list of three names
  166  recommended by the Florida Osteopathic Medical Association.
  167  However, the Chief Financial Officer is not required to make an
  168  appointment from among the nominees of the respective
  169  associations. A participating physician who is named in a
  170  pending petition for a claim may not be appointed to the board.
  171  An appointed director who is a participating physician may not
  172  vote on any board matter relating to a claim accepted for an
  173  award for compensation if the physician is named in the petition
  174  for the claim.
  175         (b) If applicable, the Chief Financial Officer shall
  176  promptly notify the appropriate medical association or person
  177  identified in paragraph (a) to make recommendations upon the
  178  occurrence of any vacancy, and like nominations may be made for
  179  the filling of the vacancy.
  180         (c)The Governor or the Chief Financial Officer may remove
  181  a director from office for misconduct, malfeasance, misfeasance,
  182  or neglect of duty in office. Any vacancy so created shall be
  183  filled as provided in paragraph (a).
  184         (3) The directors may shall not transact any business or
  185  exercise any power of the plan except upon the affirmative vote
  186  of four three directors. The directors shall serve without
  187  salary, but are entitled to receive reimbursement each director
  188  shall be reimbursed for actual and necessary expenses incurred
  189  in the performance of his or her official duties as a director
  190  of the plan in accordance with s. 112.061. The directors are
  191  shall not be subject to any liability with respect to the
  192  administration of the plan.
  193         (4) The board of directors has shall have the power to:
  194         (a) Administer the plan.
  195         (b) Administer the funds collected on behalf of the plan.
  196         (c) Administer the payment of claims on behalf of the plan.
  197         (d) Direct the investment and reinvestment of any surplus
  198  funds over losses and expenses, if provided that any investment
  199  income generated thereby remains credited to the plan.
  200         (e) Reinsure the risks of the plan in whole or in part.
  201         (f) Sue and be sued, and appear and defend, in all actions
  202  and proceedings in its name to the same extent as a natural
  203  person.
  204         (g) Have and exercise all powers necessary or convenient to
  205  effect any or all of the purposes for which the plan is created.
  206         (h) Enter into such contracts as are necessary or proper to
  207  administer the plan.
  208         (i) Employ or retain such persons as are necessary to
  209  perform the administrative and financial transactions and
  210  responsibilities of the plan and to perform other necessary and
  211  proper functions not prohibited by law.
  212         (j) Take such legal action as may be necessary to avoid
  213  payment of improper claims.
  214         (k) Indemnify any employee, agent, member of the board of
  215  directors or alternate thereof, or person acting on behalf of
  216  the plan in an official capacity, for expenses, including
  217  attorney attorney’s fees, judgments, fines, and amounts paid in
  218  settlement actually and reasonably incurred in connection with
  219  any action, suit, or proceeding, including any appeal thereof,
  220  arising out of such person’s capacity to act acting on behalf of
  221  the plan, if; provided that such person acted in good faith and
  222  in a manner he or she reasonably believed to be in, or not
  223  opposed to, the best interests of the plan and the health and
  224  best interest of the child having birth-related neurological
  225  injuries, and if provided that, with respect to any criminal
  226  action or proceeding, such the person had reasonable cause to
  227  believe his or her conduct was lawful.
  228         (5)(a) Money may be withdrawn on account of the plan only
  229  upon a voucher as authorized by the association.
  230         (b) All meetings of the board of directors are subject to
  231  the requirements of s. 286.011, and all books, records, and
  232  audits of the plan are open to the public for reasonable
  233  inspection to the general public, except that a claim file in
  234  the possession of the association or its representative is
  235  confidential and exempt from the provisions of s. 119.07(1) and
  236  s. 24(a), Art. I of the State Constitution until termination of
  237  litigation or settlement of the claim, although medical records
  238  and other portions of the claim file may remain confidential and
  239  exempt as otherwise provided by law. Any book, record, document,
  240  audit, or asset acquired by, prepared for, or paid for by the
  241  association is subject to the authority of the board of
  242  directors, which is responsible therefor.
  243         (c) Except in the case of emergency meetings, the
  244  association shall give notice of any board meeting by
  245  publication on the association’s website not fewer than 7 days
  246  before the meeting. The association shall prepare an agenda in
  247  time to ensure that a copy of the agenda may be received at
  248  least 7 days before the meeting by any person who requests a
  249  copy and who pays the reasonable cost of the copy. The agenda,
  250  along with any meeting materials available in electronic form,
  251  excluding confidential and exempt information, shall be
  252  published on the association’s website. The agenda shall contain
  253  the items to be considered in order of presentation and a
  254  telephone number for members of the public to participate
  255  telephonically at the board meeting. After the agenda has been
  256  made available, a change shall be made only for good cause, as
  257  determined by the person designated to preside, and must be
  258  stated in the record. Notification of such change shall be at
  259  the earliest practicable time.
  260         (d) Each person authorized to receive deposits, issue
  261  vouchers, or withdraw or otherwise disburse any funds shall post
  262  a blanket fidelity bond in an amount reasonably sufficient to
  263  protect plan assets, as determined by the plan of operation. The
  264  cost of such bond will be paid from the assets of the plan.
  265         (e)(d) Annually, the association shall furnish audited
  266  financial reports to any plan participant upon request, to the
  267  Office of Insurance Regulation of the Financial Services
  268  Commission, and to the Joint Legislative Auditing Committee. The
  269  reports must be prepared in accordance with accepted accounting
  270  procedures and must include such information as may be required
  271  by the Office of Insurance Regulation or the Joint Legislative
  272  Auditing Committee. At any time determined to be necessary, the
  273  Office of Insurance Regulation or the Joint Legislative Auditing
  274  Committee may conduct an audit of the plan.
  275         (f)(e) Funds held on behalf of the plan are funds of the
  276  State of Florida. The association may only invest plan funds in
  277  the investments and securities described in s. 215.47, and shall
  278  be subject to the limitations on investments contained in that
  279  section. All income derived from such investments will be
  280  credited to the plan. The State Board of Administration may
  281  invest and reinvest funds held on behalf of the plan in
  282  accordance with the trust agreement approved by the association
  283  and the State Board of Administration and within the provisions
  284  of ss. 215.44-215.53.
  285         (6)The association shall furnish annually to each parent
  286  and legal guardian receiving benefits under the plan either by
  287  mail or electronically a list of expenses compensable under the
  288  plan.
  289         (7)The association shall publish a report on its website
  290  by January 1, 2022, and every January 1 thereafter. The report
  291  shall include:
  292         (a)The names and terms of each board member and executive
  293  staff member.
  294         (b)The amount of compensation paid to each association
  295  employee.
  296         (c)A summary of reimbursement disputes and resolutions.
  297         (d)A list of expenditures for attorney fees and lobbying
  298  fees.
  299         (e)Other expenses to oppose each plan claim. Any personal
  300  identifying information of the parent, legal guardian, or child
  301  involved in the claim must be removed from this list.
  302         (8)On or before November 1, 2021, and by each November 1
  303  thereafter, the association shall submit a report to the
  304  Governor, the President of the Senate, the Speaker of the House
  305  of Representatives, and the Chief Financial Officer. The report
  306  must include:
  307         (a)The number of petitions filed for compensation with the
  308  division, the number of claimants awarded compensation, the
  309  number of claimants denied compensation, and the reasons for the
  310  denial of compensation.
  311         (b)The number and dollar amount of paid and denied
  312  compensation for expenses by category and the reasons for any
  313  denied compensation for expenses by category.
  314         (c)The average turnaround time for paying or denying
  315  compensation for expenses.
  316         (d)Legislative recommendations to improve the program.
  317         (e)A summary of any pending or resolved litigation during
  318  the year which affects the plan.
  319         (f)The amount of compensation paid to each association
  320  employee or member of the board of directors.
  321         (g)For the initial report due on or before November 1,
  322  2021, an actuarial report conducted by an independent actuary
  323  which provides an analysis of the estimated costs of
  324  implementing the following changes to the plan:
  325         1.Reducing the minimum birth weight eligibility for a
  326  participant in the plan from 2,500 grams to 2,000 grams.
  327         2.Revising the eligibility for participation in the plan
  328  by providing that an infant must be permanently and
  329  substantially mentally or physically impaired, rather than
  330  permanently and substantially mentally and physically impaired.
  331         3.Increasing the annual special benefit or quality of life
  332  benefit from $500 to $2,500 per calendar year.
  333         Section 6. The amendments made to s. 766.31, Florida
  334  Statutes, by this act, apply to petitions pending or filed under
  335  s. 766.305, Florida Statutes, on or after January 1, 2021.
  336  However, s. 766.31(1)(d)1.b. and 2.b., Florida Statutes, as
  337  created by this act, apply retroactively.
  338  
  339  ================= T I T L E  A M E N D M E N T ================
  340  And the title is amended as follows:
  341         Delete lines 376 - 386
  342  and insert:
  343         766.31, F.S.; revising requirements for the award for
  344         compensation for claims under the plan; authorizing
  345         parents or legal guardians receiving benefits under
  346         the plan to file a petition with the Division of
  347         Administrative Hearings to dispute the denial or
  348         amount of reimbursement of actual expenses; increasing
  349         the amount that may be awarded to the parents or legal
  350         guardians of an infant found to have sustained a
  351         birth-related neurological injury; requiring that such
  352         amount be increased annually; requiring the plan to
  353         provide retroactive payments to certain parents or
  354         legal guardians which are sufficient to bring the
  355         total award to a specified amount; authorizing such
  356         payments to be made in a lump sum or periodically;
  357         increasing the death benefit for an infant found to
  358         have sustained a birth-related neurological injury;
  359         requiring the plan to provide retroactive payments to
  360         certain parents or legal guardians which are
  361         sufficient to bring the total death benefit award to a
  362         specified amount; authorizing such payments to be made
  363         in a lump sum or periodically; creating s. 766.3145,
  364         F.S.; requiring