Florida Senate - 2026 COMMITTEE AMENDMENT
Bill No. CS for SB 1668
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LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/04/2026 .
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The Committee on Rules (Burton) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (a) of subsection (7) of section
6 409.910, Florida Statutes, is amended to read:
7 409.910 Responsibility for payments on behalf of Medicaid
8 eligible persons when other parties are liable.—
9 (7) The agency shall recover the full amount of all medical
10 assistance provided by Medicaid on behalf of the recipient to
11 the full extent of third-party benefits.
12 (a) Recovery of such benefits shall be collected directly
13 from:
14 1. Any third party;
15 2. The recipient or legal representative, if he or she has
16 received third-party benefits;
17 3. The provider of a recipient’s medical services if third
18 party benefits have been recovered by the provider;
19 notwithstanding any provision of this section, to the contrary,
20 however, no provider shall be required to refund or pay to the
21 agency any amount in excess of the actual third-party benefits
22 received by the provider from a third-party payor for medical
23 services provided to the recipient; or
24 4. Any person who has received the third-party benefits; or
25 5. The Florida Birth-Related Neurological Injury
26 Compensation Association for plan participant costs incurred
27 under s. 766.31.
28
29 The provisions of this subsection do not apply to any proceeds
30 received by the state, or any agency thereof, pursuant to a
31 final order, judgment, or settlement agreement, in any matter in
32 which the state asserts claims brought on its own behalf, and
33 not as a subrogee of a recipient, or under other theories of
34 liability. The provisions of this subsection do not apply to any
35 proceeds received by the state, or an agency thereof, pursuant
36 to a final order, judgment, or settlement agreement, in any
37 matter in which the state asserted both claims as a subrogee and
38 additional claims, except as to those sums specifically
39 identified in the final order, judgment, or settlement agreement
40 as reimbursements to the recipient as expenditures for the named
41 recipient on the subrogation claim.
42 Section 2. Section 766.302, Florida Statutes, is reordered
43 and amended to read:
44 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
45 766.301-766.316, the term:
46 (1) “Actuarially sound” means that the total plan assets
47 available to fund future liabilities are equal to or greater
48 than 90 percent of the present value of total estimated
49 liabilities excluding any risk margin.
50 (2)(4) “Administrative law judge” means an administrative
51 law judge appointed by the division.
52 (3)(1) “Association” means the Florida Birth-Related
53 Neurological Injury Compensation Association established in s.
54 766.315 to administer the Florida Birth-Related Neurological
55 Injury Compensation Plan and the plan of operation established
56 in s. 766.314.
57 (4)(2) “Birth-related neurological injury” means injury to
58 the brain or spinal cord of a live infant weighing at least
59 2,500 grams for a single gestation or, in the case of a multiple
60 gestation, a live infant weighing at least 2,000 grams at birth
61 caused by oxygen deprivation or mechanical injury occurring in
62 the course of labor, delivery, or resuscitation in the immediate
63 postdelivery period in a hospital, which renders the infant
64 permanently and substantially mentally and physically impaired.
65 This definition shall apply to live births only and does shall
66 not include disability or death caused by genetic or congenital
67 abnormality.
68 (5)(3) “Claimant” means any person who files a claim
69 pursuant to s. 766.305 for compensation for a birth-related
70 neurological injury to an infant. Such a claim may be filed by
71 any legal representative on behalf of an injured infant; and, in
72 the case of a deceased infant, the claim may be filed by an
73 administrator, personal representative, or other legal
74 representative thereof.
75 (6)(5) “Division” means the Division of Administrative
76 Hearings of the Department of Management Services.
77 (7)(9) “Family member” means a father, mother, or legal
78 guardian.
79 (8)(10) “Family residential or custodial care” means care
80 normally rendered by trained professional attendants which is
81 beyond the scope of child care duties, but which is provided by
82 family members. Family members who provide nonprofessional
83 residential or custodial care may not be compensated under this
84 act for care that falls within the scope of child care duties
85 and other services normally and gratuitously provided by family
86 members. Family residential or custodial care shall be performed
87 only at the direction and control of a physician when such care
88 is medically necessary. Reasonable charges for expenses for
89 family residential or custodial care provided by a family member
90 shall be determined as follows:
91 (a) If the family member is not employed, the per-hour
92 value equals the federal minimum hourly wage.
93 (b) If the family member is employed and elects to leave
94 that employment to provide such care, the per-hour value of that
95 care shall equal the rates established by Medicaid for private
96 duty services provided by a home health aide. A family member or
97 a combination of family members providing care in accordance
98 with this definition may not be compensated for more than a
99 total of 10 hours per day. Family care is in lieu of
100 professional residential or custodial care, and no professional
101 residential or custodial care may be awarded for the period of
102 time during the day that family care is being provided.
103 (9)(6) “Hospital” means any hospital licensed in Florida.
104 (10) “Office” means the Office of Insurance Regulation.
105 (11) “Participant” means the person who suffered a birth
106 related neurological injury as an infant and who accepted
107 compensation under the plan by final order entered by an
108 administrative law judge pursuant to s. 766.309.
109 (12)(7) “Participating physician” means a physician
110 licensed in Florida to practice medicine who practices
111 obstetrics or performs obstetrical services either full time or
112 part time and who had paid or was exempted from payment at the
113 time of the injury the assessment required for participation in
114 the birth-related neurological injury compensation plan for the
115 year in which the injury occurred. Such term does shall not
116 apply to any physician who practices medicine as an officer,
117 employee, or agent of the Federal Government.
118 (13)(8) “Plan” means the Florida Birth-Related Neurological
119 Injury Compensation Plan established under s. 766.303.
120 (14) “Risk margin” means an additional, explicit allowance
121 above the best-estimate reserve to reflect uncertainty in future
122 claim payments, including variations in claimant life expectancy
123 and the number and cost of pending or unreported claims. The
124 risk margin is not included in the reserve amount used to
125 calculate the funding ratio.
126 Section 3. Section 766.303, Florida Statutes, is amended to
127 read:
128 766.303 Florida Birth-Related Neurological Injury
129 Compensation Plan; exclusiveness of remedy.—
130 (1) There is established the Florida Birth-Related
131 Neurological Injury Compensation Plan for the purpose of
132 providing compensation, irrespective of fault, for birth-related
133 neurological injuries injury claims. Such plan shall apply to
134 births occurring on or after January 1, 1989, and shall be
135 administered by the Florida Birth-Related Neurological Injury
136 Compensation Association.
137 (2) The rights and remedies granted by this plan on account
138 of a birth-related neurological injury shall exclude all other
139 rights and remedies of such infant, her or his personal
140 representative, family members parents, dependents, and next of
141 kin, at common law or otherwise, against any person or entity
142 directly involved with the labor, delivery, or immediate
143 postdelivery resuscitation during which such injury occurs,
144 arising out of or related to a medical negligence claim with
145 respect to such injury; except that a civil action may shall not
146 be foreclosed where there is clear and convincing evidence of
147 bad faith or malicious purpose or willful and wanton disregard
148 of human rights, safety, or property, provided that such suit is
149 filed prior to and in lieu of payment of an award under ss.
150 766.301-766.316. Such suit shall be filed before the award of
151 the division becomes conclusive and binding as provided for in
152 s. 766.311.
153 (3) Sovereign immunity is hereby waived on behalf of the
154 Florida Birth-Related Neurological Injury Compensation
155 Association solely to the extent necessary to assure payment of
156 compensation as provided in s. 766.31.
157 (4) The association shall administer the plan in a manner
158 that promotes and protects the health and best interests of
159 participants children with birth-related neurological injuries.
160 Section 4. Subsections (1) and (3) of section 766.305,
161 Florida Statutes, are amended to read:
162 766.305 Filing of claims and responses; medical
163 disciplinary review.—
164 (1) All claims filed for compensation under the plan must
165 shall commence by the claimant filing with the division a
166 petition that includes all of seeking compensation. Such
167 petition shall include the following information:
168 (a) The name and address of the legal representative and
169 the basis for her or his representation of the injured infant.
170 (b) The name and address of the injured infant.
171 (c) The name and address of any physician providing
172 obstetrical services who was present at the birth and the name
173 and address of the hospital at which the birth occurred.
174 (d) A description of the disability for which the claim is
175 made.
176 (e) The time and place the injury occurred.
177 (f) A brief statement of the facts and circumstances
178 surrounding the injury and giving rise to the claim.
179 (3) The claimant shall furnish to the Florida Birth-Related
180 Neurological Injury Compensation association the following
181 information, which must be filed with the association within 10
182 days after the filing of the petition as set forth in subsection
183 (1):
184 (a) All available relevant medical records relating to the
185 birth-related neurological injury and a list identifying any
186 unavailable records known to the claimant and the reasons for
187 the records’ unavailability.
188 (b) Appropriate assessments, evaluations, and prognoses and
189 such other records and documents as are reasonably necessary for
190 the determination of the amount of compensation to be paid to,
191 or on behalf of, the injured infant on account of the birth
192 related neurological injury.
193 (c) Documentation of expenses and services incurred to date
194 which identifies any payment made for such expenses and services
195 and the payor.
196 (d) Documentation of any applicable private or governmental
197 source of services or reimbursement relative to the impairments.
198
199 The information required by paragraphs (a)-(d) shall remain
200 confidential and exempt under the provisions of s. 766.315(6)(b)
201 s. 766.315(5)(b).
202 Section 5. Paragraph (a) of subsection (1) of section
203 766.309, Florida Statutes, is amended to read:
204 766.309 Determination of claims; presumption; findings of
205 administrative law judge binding on participants.—
206 (1) The administrative law judge shall make the following
207 determinations based upon all available evidence:
208 (a) Whether the injury claimed is a birth-related
209 neurological injury. If the claimant has demonstrated, to the
210 satisfaction of the administrative law judge, that the infant
211 has sustained a brain or spinal cord injury caused by oxygen
212 deprivation or mechanical injury and that the infant was thereby
213 rendered permanently and substantially mentally and physically
214 impaired, a rebuttable presumption shall arise that the injury
215 is a birth-related neurological injury as defined in s. 766.302
216 s. 766.302(2).
217 Section 6. Section 766.31, Florida Statutes, is amended to
218 read:
219 766.31 Administrative law judge awards for birth-related
220 neurological injuries; notice of award.—
221 (1) Upon determining that an infant has sustained a birth
222 related neurological injury and that obstetrical services were
223 delivered by a participating physician at the birth, the
224 administrative law judge shall make an award providing
225 compensation for the following items relative to such injury:
226 (a) Actual expenses incurred since the date of birth for
227 medically necessary and reasonable:
228 1. Medical and hospital care and services;,
229 2. Habilitative services; and training,
230 3. Dental services;
231 4. Family residential or custodial care;,
232 5. Professional residential care;, and
233 6. Professional custodial care; and service,
234 7. for medically necessary Drugs;,
235 8. Special equipment;, and facilities, and
236 9. for Related travel.
237 (b) At a minimum, compensation must be provided for the
238 following actual expenses:
239 1. Psychotherapeutic services for A total annual benefit of
240 up to $10,000 for immediate family members and other relatives
241 who have resided reside with the participant, which are infant
242 for psychotherapeutic services obtained from a psychiatrist
243 licensed under chapter 458 or chapter 459, a provider providers
244 licensed under chapter 490 or chapter 491, or a psychiatrist or
245 provider who has equivalent licensure by another jurisdiction.
246 This benefit for such family members and relatives shall be up
247 to a total of $10,000 annually during the participant’s lifetime
248 and up to a total of $20,000 subsequent to the participant’s
249 death.
250 2. For the life of the participant child, providing family
251 members parents or legal guardians with a reliable method of
252 transporting transportation for the care of the participant and
253 child or reimbursing the cost of upgrading an existing vehicle
254 to accommodate the participant’s wheelchair and medically
255 necessary equipment child’s needs when it becomes medically
256 necessary for wheelchair transportation. The mode of
257 transportation must take into account the special accommodations
258 required for the specific child. The plan may not limit such
259 transportation assistance based on the participant’s child’s age
260 or weight. The plan must replace any vehicle vans purchased by
261 the plan every 7 years or 150,000 miles, whichever comes first.
262 3. Housing assistance of up to $100,000 for the life of the
263 participant child, including, but not limited to, a down payment
264 on a new home, moving expenses, and home construction and
265 modification costs.
266 4. Legal costs associated with establishing and maintaining
267 guardianship for a participant.
268 (c)1. The costs of a health insurance policy or health
269 maintenance contract that provides major medical or similar
270 comprehensive health insurance coverage for the participant
271 obtained pursuant to subsection (3), including, but not limited
272 to, the premium and out-of-pocket costs. For participants
273 enrolled in the state Medicaid program, the plan must reimburse
274 fee-for-service paid claims and capitation payments, as
275 applicable, for services provided to such participants pursuant
276 to this section and for the administrative and support costs
277 associated with the provided medical assistance. Such funds
278 shall be credited to the Agency for Health Care Administration’s
279 Medical Care Trust Fund.
280 2. By December 31, 2026, the plan shall reimburse any
281 participant for reasonable, medically necessary care received by
282 the participant on or before June 30, 2026, which was reduced or
283 not paid by the plan because such participant did not have
284 comprehensive or major medical health insurance coverage through
285 an insurer or a health maintenance organization.
286 (d)(b) However, the following expenses are not subject to
287 compensation:
288 1. Expenses for items or services that the participant
289 infant has received, or is entitled to receive, under the laws
290 of any state or the Federal Government, except to the extent
291 such exclusion may be prohibited by federal law.
292 2. Expenses for items or services that the participant
293 infant has received, or is contractually entitled to receive,
294 from any prepaid health plan, health maintenance organization,
295 or other private insuring entity.
296 3. Expenses for which the participant infant has received
297 reimbursement, or for which the participant infant is entitled
298 to receive reimbursement, under the laws of any state or the
299 Federal Government, except to the extent such exclusion may be
300 prohibited by federal law.
301 4. Expenses for which the participant infant has received
302 reimbursement, or for which the participant infant is
303 contractually entitled to receive reimbursement, pursuant to the
304 provisions of any health or sickness insurance policy or other
305 private insurance program.
306 5. Expenses for family residential or custodial care
307 provided by a family member while:
308 a. Care and supervision of the participant is
309 simultaneously being provided by another person or entity; or
310 b. The family member receives compensation from another
311 source for work performed during the same time for which
312 compensation is sought from the association.
313 (e)(c) Expenses included under paragraphs paragraph (a) and
314 (b) are limited to reasonable charges prevailing in the same
315 community for similar treatment of injured persons when such
316 treatment is paid for by the injured person.
317 (f)1. A family member The parents or legal guardians
318 receiving benefits under the plan may file a petition with the
319 division of Administrative Hearings to dispute the amount of
320 actual expenses reimbursed or a denial of reimbursement.
321 2. In the case of an alleged overpayment of an expense
322 reimbursement by the association to a family member, if the
323 family member does not agree that an overpayment has occurred,
324 the association may file a petition for division review of the
325 overpayment for a determination of the amount, if any, to be
326 recouped by the association.
327 (g)1.(d)1.a. Periodic payments of an award to the family
328 members parents or legal guardians of the participant infant
329 found to have sustained a birth-related neurological injury,
330 which award may not exceed $100,000. However, at the discretion
331 of the administrative law judge, such award may be made in a
332 lump sum. Beginning on January 1, 2021, the award may not exceed
333 $250,000, and each January 1 thereafter, the maximum award
334 authorized under this paragraph shall increase by 3 percent.
335 b. Parents or legal guardians who received an award
336 pursuant to this section before January 1, 2021, must receive a
337 retroactive payment in an amount sufficient to bring the total
338 award paid to the parents or legal guardians pursuant to sub
339 subparagraph a. to $250,000. This additional payment may be made
340 in a lump sum or in periodic payments as designated by the
341 parents or legal guardians and must be paid by July 1, 2021.
342 2.a. Death benefit for the participant infant in an amount
343 of $50,000.
344 b. Parents or legal guardians who received an award
345 pursuant to this section, and whose child died since the
346 inception of the program, must receive a retroactive payment in
347 an amount sufficient to bring the total award paid to the
348 parents or legal guardians pursuant to sub-subparagraph a. to
349 $50,000. This additional payment may be made in a lump sum or in
350 periodic payments as designated by the parents or legal
351 guardians and must be paid by July 1, 2021.
352 (h)(e) Reasonable expenses incurred in connection with the
353 filing of a claim under ss. 766.301-766.316, including
354 reasonable attorney attorney’s fees, which shall be subject to
355 the approval and award of the administrative law judge. In
356 determining an award for attorney attorney’s fees, the
357 administrative law judge shall consider the following factors:
358 1. The time and labor required, the novelty and difficulty
359 of the questions involved, and the skill requisite to perform
360 the legal services properly.
361 2. The fee customarily charged in the locality for similar
362 legal services.
363 3. The time limitations imposed by the claimant or the
364 circumstances.
365 4. The nature and length of the professional relationship
366 with the claimant.
367 5. The experience, reputation, and ability of the lawyer or
368 lawyers performing services.
369 6. The contingency or certainty of a fee.
370
371 If there is Should there be a final determination of
372 compensability, and the claimants accept an award under this
373 section, the claimants are not liable for any expenses,
374 including attorney fees, incurred in connection with the filing
375 of a claim under ss. 766.301-766.316 other than those expenses
376 awarded under this section.
377 (2) The award shall require the immediate payment of
378 expenses previously incurred and shall require that future
379 expenses be paid as incurred.
380 (3) A family member must continuously maintain a health
381 insurance policy or health maintenance contract that provides
382 comprehensive major medical health insurance coverage for the
383 participant.
384 (a) If the participant does not have such coverage at the
385 time of entry of a final order by an administrative law judge
386 approving a claim for compensation, the family member must
387 obtain coverage within 60 days after entry of such order or
388 apply for Medicaid coverage within 30 days after entry of such
389 order.
390 (b) If the participant is determined to be ineligible for
391 Medicaid, the family member must obtain other coverage within 60
392 days after receiving the Medicaid application denial.
393 (c) A family member of an individual who is a participant
394 on June 30, 2026, must obtain the required coverage for the
395 participant by January 1, 2027.
396 (4)(3) A copy of the award shall be sent immediately by
397 registered or certified mail to each person served with a copy
398 of the petition under s. 766.305(2).
399 Section 7. Section 766.314, Florida Statutes, is amended to
400 read:
401 766.314 Assessments; plan of operation.—
402 (1) The assessments established under pursuant to this
403 section shall be used to finance the Florida Birth-Related
404 Neurological Injury Compensation Plan.
405 (2) The assessments and appropriations dedicated to the
406 plan shall be administered by the Florida Birth-Related
407 Neurological Injury Compensation Association established in s.
408 766.315, in accordance with the following requirements:
409 (a) On or before July 1, 1988, The directors of the
410 association shall submit to the office Department of Insurance
411 for review and approval a plan of operation and any amendment
412 thereto which shall provide for the efficient administration of
413 the plan and for prompt processing of claims against and awards
414 made on behalf of the plan.
415 (b) The plan of operation must shall include provision for:
416 1. Establishment of necessary facilities;
417 2. Management of the funds collected on behalf of the plan;
418 3. Processing of claims against the plan;
419 4. Assessment of the persons and entities listed in
420 subsections (4) and (5) to pay awards and expenses, which
421 assessments shall be on an actuarially sound basis subject to
422 the limits set forth in subsections (4) and (5);
423 5. A fraud and overpayment prevention and detection
424 program; and
425 6.5. Any other matters necessary for the efficient
426 operation of the Florida Birth-Related Neurological Injury
427 Compensation Plan.
428 (b) Amendments to the plan of operation may be made by the
429 directors of the plan, subject to the approval of the office of
430 Insurance Regulation of the Financial Services Commission.
431 (3) All assessments shall be deposited with the Florida
432 Birth-Related Neurological Injury Compensation association. The
433 funds collected by the association and any income therefrom
434 shall be disbursed only for the payment of awards under ss.
435 766.301-766.316 and for the payment of the reasonable expenses
436 of administering the plan.
437 (4) The following persons and entities shall pay into the
438 association assessments as follows an initial assessment in
439 accordance with the plan of operation:
440 (a)1. On or before October 1, 1988, Each hospital licensed
441 under chapter 395 shall pay an initial assessment of $50 per
442 infant delivered in that the hospital during the prior calendar
443 year, as reported to the Agency for Health Care Administration;
444 provided, however, that a hospital owned or operated by the
445 state or a county, special taxing district, or other political
446 subdivision of the state shall not be required to pay the
447 initial assessment or any assessment required by this subsection
448 or subsection (5). The term “infant delivered” includes live
449 births and not stillbirths, but the term does not include
450 infants delivered by employees or agents of the board of
451 trustees of a state university, those born in a teaching
452 hospital as defined in s. 408.07, or those born in a teaching
453 hospital as defined in s. 395.806 that have been deemed by the
454 association as being exempt from assessments since fiscal year
455 1997 to fiscal year 2001. The initial assessment and any
456 assessment imposed pursuant to subsection (5) may not include
457 any infant born to a charity patient (as defined by rule of the
458 Agency for Health Care Administration) or born to a patient for
459 whom the hospital receives Medicaid reimbursement, if the sum of
460 the annual charges for charity patients plus the annual Medicaid
461 contractuals of the hospital exceeds 10 percent of the total
462 annual gross operating revenues of the hospital. The hospital is
463 responsible for documenting, to the satisfaction of the
464 association, the exclusion of any birth from the computation of
465 the assessment. Upon demonstration of financial need by a
466 hospital, the association may provide for installment payments
467 of assessments.
468 2. Assessments are due, and hospitals shall pay all
469 assessments required under this section, by December 31 of the
470 calendar year immediately subsequent to the birth year.
471 (b)1.a. On or before October 15, 1988, All physicians
472 licensed pursuant to chapter 458 or chapter 459 as of October 1,
473 1988, other than participating physicians, shall be assessed an
474 annual initial assessment of $250.,
475 b. Payment for all assessments required under this
476 paragraph is due on or before December 31 of each year which
477 must be paid no later than December 1, 1988.
478 2. Any such physician who becomes licensed after September
479 30, 1988, and before January 1, 1989, shall pay into the
480 association an initial assessment of $250 upon licensure.
481 3. Any such physician who becomes licensed on or after
482 January 1, 1989, shall pay an initial assessment equal to the
483 most recent assessment made pursuant to this paragraph,
484 paragraph (5)(a), or paragraph (7)(b).
485 2.4. However, if the physician is a physician specified in
486 this subparagraph, the assessment is not applicable:
487 a. A resident physician, assistant resident physician, or
488 intern in an approved postgraduate training program, as defined
489 by the Board of Medicine or the Board of Osteopathic Medicine by
490 rule;
491 b. A retired physician who has withdrawn from the practice
492 of medicine but who maintains an active license as evidenced by
493 an affidavit filed with the Department of Health. Prior to
494 reentering the practice of medicine in this state, a retired
495 physician as herein defined must notify the Board of Medicine or
496 the Board of Osteopathic Medicine and pay the appropriate
497 assessments pursuant to this section;
498 c. A physician who holds a limited license pursuant to s.
499 458.317 and who is not being compensated for medical services;
500 d. A physician who is employed full time by the United
501 States Department of Veterans Affairs and whose practice is
502 confined to United States Department of Veterans Affairs
503 hospitals; or
504 e. A physician who is a member of the Armed Forces of the
505 United States and who meets the requirements of s. 456.024.
506 f. A physician who is employed full time by the State of
507 Florida and whose practice is confined to state-owned
508 correctional institutions, a county health department, or state
509 owned mental health or developmental services facilities, or who
510 is employed full time by the Department of Health.
511 (c)1. On or before December 1, 1988, Each physician
512 licensed pursuant to chapter 458 or chapter 459 who wishes to
513 participate in the Florida Birth-Related Neurological Injury
514 Compensation Plan and who otherwise qualifies as a participating
515 physician under ss. 766.301-766.316 shall pay an annual initial
516 assessment of $5,000 and any assessment required under paragraph
517 (5)(a), if assessed. However, if the physician is either a
518 resident physician, assistant resident physician, or intern in
519 an approved postgraduate training program, as defined by the
520 Board of Medicine or the Board of Osteopathic Medicine by rule,
521 and is supervised in accordance with program requirements
522 established by the Accreditation Council for Graduate Medical
523 Education or the American Osteopathic Association by a physician
524 who is participating in the plan, such resident physician,
525 assistant resident physician, or intern is deemed to be a
526 participating physician without the payment of the assessment.
527 Participating physicians also include any employee of the board
528 of trustees of a state university who has paid the assessment
529 required by this paragraph and, if assessed, paragraph (5)(a),
530 and any certified nurse midwife supervised by such employee.
531 Participating physicians include any certified nurse midwife who
532 has paid 50 percent of the physician assessment required by this
533 paragraph and, if assessed, paragraph (5)(a) and who is
534 supervised by a participating physician who has paid the
535 assessment required by this paragraph and, if assessed,
536 paragraph (5)(a). Supervision for nurse midwives shall require
537 that the supervising physician will be easily available and have
538 a prearranged plan of treatment for specified patient problems
539 which the supervised certified nurse midwife may carry out in
540 the absence of any complicating features. Any physician who
541 elects to participate in such plan on or after January 1, 1989,
542 who was not a participating physician at the time of such
543 election to participate and who otherwise qualifies as a
544 participating physician under ss. 766.301-766.316 shall pay an
545 additional initial assessment equal to the most recent
546 assessment made pursuant to this paragraph, paragraph (5)(a), or
547 paragraph (7)(b).
548 2. Payment of assessments required by this paragraph is due
549 on or before December 31 of each year for qualification as a
550 participating physician during the next calendar year. If
551 payment of the assessments is received by the association on or
552 before January 31 of any calendar year, the physician shall
553 qualify as a participating physician for that entire calendar
554 year. If the payment is received after January 31, the physician
555 shall qualify as a participating physician for that calendar
556 year only from the date the payment was received by the
557 association.
558 (d) Any hospital located in a county with a population in
559 excess of 1.1 million as of January 1, 2003, as determined by
560 the Agency for Health Care Administration under the Health Care
561 Responsibility Act, may elect to pay the assessments required by
562 paragraph (c) fee for the participating physician and the
563 certified nurse midwife if the hospital first determines that
564 the primary motivating purpose for making such payment is to
565 ensure coverage for the hospital’s patients under the provisions
566 of ss. 766.301-766.316; however, no hospital may restrict any
567 participating physician or nurse midwife, directly or
568 indirectly, from being on the staff of hospitals other than the
569 staff of the hospital making the payment. Each hospital shall
570 file with the association an affidavit setting forth
571 specifically the reasons why the hospital elected to make the
572 payment on behalf of each participating physician and certified
573 nurse midwife. The payments authorized under this paragraph
574 shall be in addition to the assessment set forth in paragraph
575 (5)(a).
576 (5)(a) Beginning January 1, 1990, The persons and entities
577 listed in paragraphs (4)(b) and (c), except those persons or
578 entities who are specifically excluded from such said
579 provisions, as of the date determined in accordance with the
580 plan of operation, taking into account persons licensed
581 subsequent to the payment of the initial assessment, shall pay
582 an annual assessment in the amount equal to the initial
583 assessments provided in paragraphs (4)(b) and (c). If payment of
584 the annual assessment by a physician is received by the
585 association by January 31 of any calendar year, the physician
586 shall qualify as a participating physician for that entire
587 calendar year. If the payment is received after January 31 of
588 any calendar year, the physician shall qualify as a
589 participating physician for that calendar year only from the
590 date the payment was received by the association. On January 1,
591 1991, and on each January 1 thereafter, the association shall
592 determine the amount of additional assessments necessary
593 pursuant to subsection (7), in the manner required by the plan
594 of operation, subject to any increase determined to be necessary
595 by the office of Insurance Regulation pursuant to paragraph
596 (7)(b). On July 1, 1991, and on each July 1 thereafter, the
597 persons and entities listed in paragraphs (4)(b) and (c), except
598 those persons or entities who are specifically excluded from
599 such said provisions, shall pay the additional assessments which
600 were determined on January 1. Beginning January 1, 1990, the
601 entities listed in paragraph (4)(a), including those licensed on
602 or after October 1, 1988, shall pay an annual assessment of $50
603 per infant delivered during the prior calendar year. The
604 additional assessments which were determined on January 1, 1991,
605 pursuant to the provisions of subsection (7) shall not be due
606 and payable by the entities listed in paragraph (4)(a) until
607 July 1.
608 (b) If the assessments collected pursuant to subsection (4)
609 and the appropriation of funds provided by s. 76, chapter 88-1,
610 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
611 Florida, to the plan from the Insurance Regulatory Trust Fund
612 are insufficient to maintain the plan on an actuarially sound
613 basis, there is hereby appropriated for transfer to the
614 association from the Insurance Regulatory Trust Fund an
615 additional amount of up to $20 million.
616 (c)1. Taking into account the assessments collected
617 pursuant to subsection (4) and appropriations from the Insurance
618 Regulatory Trust Fund, if required to maintain the plan on an
619 actuarially sound basis, the office of Insurance Regulation
620 shall require each entity licensed to issue casualty insurance
621 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
622 association an annual assessment in an amount determined by the
623 office pursuant to paragraph (7)(a), in the manner required by
624 the plan of operation.
625 2. All annual assessments shall be made on the basis of net
626 direct premiums written for the business activity that which
627 forms the basis for each such entity’s inclusion as a funding
628 source for the plan in the state during the prior year ending
629 December 31, as reported to the office of Insurance Regulation,
630 and shall be in the proportion that the net direct premiums
631 written by each carrier on account of the business activity
632 forming the basis for its inclusion in the plan bears to the
633 aggregate net direct premiums for all such business activity
634 written in this state by all such entities.
635 3. No entity listed in this paragraph shall be individually
636 liable for an annual assessment in excess of 0.25 percent of
637 that entity’s net direct premiums written.
638 4. Casualty insurance carriers shall be entitled to recover
639 their initial and annual assessments through a surcharge on
640 future policies, a rate increase applicable prospectively, or a
641 combination of the two.
642 (6)(a) The association shall make all assessments required
643 by this section, except initial assessments of physicians newly
644 licensed by the Department of Health, which assessments will be
645 made by the Department of Health, and except assessments of
646 casualty insurers pursuant to subparagraph (5)(c)1., which
647 assessments will be made by the office of Insurance Regulation.
648 The Department of Health shall provide the association, in an
649 electronic format, with a monthly report of the names and
650 license numbers of all physicians licensed under chapter 458 or
651 chapter 459.
652 (b)1. The association may enforce collection of assessments
653 required to be paid pursuant to ss. 766.301-766.316 by suit
654 filed in county court, or in circuit court if the amount due
655 could exceed the jurisdictional limits of county court. The
656 association is entitled to an award of attorney fees, costs, and
657 interest upon the entry of a judgment against a physician for
658 failure to pay such assessment, with such interest accruing
659 until paid. Notwithstanding chapters 47 and 48, the association
660 may file such suit in either Leon County or the county of the
661 residence of the defendant. The association shall notify the
662 Department of Health and the applicable board of any unpaid
663 final judgment against a physician within 7 days after the entry
664 of final judgment.
665 2. The Department of Health, upon notification by the
666 association that an assessment has not been paid and that there
667 is an unsatisfied judgment against a physician, shall refuse to
668 renew any license issued to such physician under chapter 458 or
669 chapter 459 until the association notifies the Department of
670 Health that the judgment is satisfied in full.
671 (c) The Agency for Health Care Administration shall, upon
672 notification by the association that an assessment has not been
673 timely paid, enforce collection of such assessments required to
674 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
675 a hospital to pay such assessment is grounds for disciplinary
676 action pursuant to s. 395.1065 notwithstanding any law to the
677 contrary.
678 (7)(a) The office of Insurance Regulation shall undertake
679 an actuarial investigation of the requirements of the plan based
680 on the plan’s experience in the first year of operation and any
681 additional relevant information, including without limitation
682 the assets and liabilities of the plan. Pursuant to such
683 investigation, the office of Insurance Regulation shall
684 establish the rate of contribution of the entities listed in
685 paragraph (5)(c) for the tax year beginning January 1, 1990.
686 Following the initial valuation, the office of Insurance
687 Regulation shall cause an actuarial valuation to be made of the
688 assets and liabilities of the plan no less frequently than
689 biennially. Pursuant to the results of such valuations, the
690 office of Insurance Regulation shall prepare a statement as to
691 the contribution rate applicable to the entities listed in
692 paragraph (5)(c). However, at no time shall the rate be greater
693 than 0.25 percent of net direct premiums written.
694 (b) If the office of Insurance Regulation finds that the
695 plan cannot be maintained on an actuarially sound basis based on
696 the assessments and appropriations listed in subsections (4) and
697 (5), the office shall increase the assessments specified in
698 subsection (4) on a proportional basis as needed.
699 (8) The association shall report to the Legislature its
700 determination as to the annual cost of maintaining the fund on
701 an actuarially sound basis. In making its determination, the
702 association shall consider the recommendations of all hospitals,
703 physicians, casualty insurers, attorneys, consumers, and any
704 associations representing any such person or entity.
705 Notwithstanding the provisions of s. 395.3025, all hospitals,
706 casualty insurers, departments, boards, commissions, and
707 legislative committees shall provide the association with all
708 relevant records and information upon request to assist the
709 association in making its determination. All hospitals shall,
710 upon request by the association, provide the association with
711 information from their records regarding any live birth. Such
712 information may shall not include the name of any physician, the
713 name of any hospital employee or agent, the name of the patient,
714 or any other information which will identify the infant involved
715 in the birth. Such information thereby obtained must shall be
716 utilized solely for the purpose of assisting the association and
717 may shall not subject the hospital to any civil or criminal
718 liability for the release thereof. Such information shall
719 otherwise be confidential and exempt from the provisions of s.
720 119.07(1) and s. 24(a), Art. I of the State Constitution.
721 (9)(a) Within 60 days after a claim is filed, the
722 association shall estimate the present value of the total cost
723 of the claim, including the estimated amount to be paid to the
724 claimant, the claimant’s attorney, the attorney attorney’s fees
725 of the association incident to the claim, and any other expenses
726 that are reasonably anticipated to be incurred by the
727 association in connection with the adjudication and payment of
728 the claim. For purposes of this estimate, the association should
729 include the maximum benefits for noneconomic damages.
730 (b) The association shall revise these estimates quarterly
731 based upon the actual costs incurred and any additional
732 information that becomes available to the association since the
733 last review of this estimate. The estimate shall be reduced by
734 any amounts paid by the association that were included in the
735 current estimate. The association shall submit revised quarterly
736 claim estimates to the office within 15 business days after the
737 end of each quarter.
738 (c)1. If the total of all current estimates equals or
739 exceeds 100 percent of the funds on hand and the funds that will
740 become available to the association within the next 12 months
741 from all sources described in subsection (4) and paragraph
742 (5)(a), the association may not accept any new claims without
743 express authority from the Legislature. This section does not
744 preclude the association from accepting any claim if the injury
745 occurred 18 months or more before the effective date of this
746 suspension. Within 30 days after the effective date of this
747 suspension, the association shall notify the Governor, the
748 President of the Senate, the Speaker of the House of
749 Representatives, the President of the Senate, the office of
750 Insurance Regulation, the Agency for Health Care Administration,
751 and the Department of Health of this suspension.
752 2. Notwithstanding this paragraph, the association is
753 authorized to accept new claims during the 2026-2027 2025-2026
754 fiscal year even if the total of all current estimates exceeds
755 the limits described in subparagraph 1. during that fiscal year;
756 however, if the total of all current estimates exceeds such
757 limits, the association must notify the Governor, the President
758 of the Senate, the Speaker of the House of Representatives, the
759 office, the Agency for Health Care Administration, and the
760 Department of Health within 5 days after it makes such
761 determination. This subparagraph expires July 1, 2027 2026.
762 (d) If any person is precluded from asserting a claim
763 against the association because of paragraph (c), the plan shall
764 not constitute the exclusive remedy for such person, his or her
765 personal representative, parents, dependents, or next of kin.
766 Section 8. Present subsections (5) through (8) of section
767 766.315, Florida Statutes, are redesignated as subsections (6)
768 through (9), respectively, a new subsection (5) is added to that
769 section, and subsection (1), paragraph (e) of present subsection
770 (5), and present subsections (7) and (8) of that section are
771 amended, to read:
772 766.315 Florida Birth-Related Neurological Injury
773 Compensation Association; board of directors; notice of
774 meetings; report.—
775 (1)(a) The Florida Birth-Related Neurological Injury
776 Compensation Plan shall be governed by a board of seven
777 directors which shall be known as the Florida Birth-Related
778 Neurological Injury Compensation Association. The association is
779 not a state agency, board, or commission. Notwithstanding the
780 provision of s. 15.03, the association is authorized to use the
781 state seal.
782 (b) The directors shall be appointed for staggered terms of
783 3 years or until their successors are appointed and have
784 qualified; however, a director may not serve for more than 6
785 consecutive years.
786 (c) The directors shall be appointed by the Chief Financial
787 Officer as follows:
788 1. One citizen representative who is not affiliated with
789 any of the groups identified in subparagraphs 2.-7.
790 2. One representative of participating physicians.
791 3. One representative of hospitals.
792 4. One representative of casualty insurers.
793 5. One representative of physicians other than
794 participating physicians.
795 6. One family member of a participant parent or legal
796 guardian representative of an injured infant under the plan.
797 7. One representative of an advocacy organization for
798 children with disabilities.
799 (5) Notwithstanding this section, the board of directors
800 may not create new benefits or expand existing benefits that
801 result in additional costs to the plan if the plan is operating
802 at an annual cash flow deficit, as documented in the plan’s
803 audited financial statements for the prior fiscal year. This
804 subsection does not prohibit the plan from providing benefits
805 set forth in s. 766.31.
806 (6)(5)
807 (e) Annually, the association shall furnish audited
808 financial reports to any plan participant upon request, to the
809 office of Insurance Regulation of the Financial Services
810 Commission, and to the Joint Legislative Auditing Committee. The
811 reports must be prepared in accordance with generally accepted
812 auditing standards accounting procedures and must include such
813 information as may be required by the office of Insurance
814 Regulation or the Joint Legislative Auditing Committee. At any
815 time determined to be necessary, the office of Insurance
816 Regulation or the Joint Legislative Auditing Committee may
817 conduct an audit of the plan.
818 (8)(7) The association shall publish a report on its
819 website by January 1 of each year. The report must shall include
820 all of the following:
821 (a) The names and terms of each board member and executive
822 staff member.
823 (b) The amount of compensation paid to each association
824 employee or independent contractor.
825 (c) A summary of reimbursement disputes and resolutions.
826 (d) A list of expenditures for attorney fees and lobbying
827 fees.
828 (e) Other expenses to oppose each plan claim. Any personal
829 identifying information of the parent, legal guardian, or child
830 involved in the claim must be removed from this list.
831 (9)(8) By November 1 of each year, the association shall
832 submit a report to the Governor, the President of the Senate,
833 the Speaker of the House of Representatives, and the Chief
834 Financial Officer. The report must include all of the following:
835 (a) The number of petitions filed for compensation with the
836 division, the number of claimants awarded compensation, the
837 number of claimants denied compensation, and the reasons for the
838 denial of compensation.
839 (b) The number and dollar amount of paid and denied
840 compensation for expenses by category and the reasons for any
841 denied compensation for expenses by category.
842 (c) The average turnaround time for paying or denying
843 compensation for expenses.
844 (d) Legislative recommendations to improve the program,
845 including to create new benefits or expand current benefits for
846 participants. Recommendations creating new benefits or expanding
847 current benefits must include estimates of the costs to the plan
848 for providing such benefits on an annual basis.
849 (e) A summary of any pending or resolved litigation during
850 the year which affects the plan.
851 (f) The amount of compensation paid to each association
852 employee, independent contractor, or member of the board of
853 directors.
854 Section 9. This act shall take effect upon becoming a law.
855
856 ================= T I T L E A M E N D M E N T ================
857 And the title is amended as follows:
858 Delete everything before the enacting clause
859 and insert:
860 A bill to be entitled
861 An act relating to the Florida Birth-Related
862 Neurological Injury Compensation Association; amending
863 s. 409.910, F.S.; requiring the Agency for Health Care
864 Administration to recover from the Florida Birth
865 Related Neurological Injury Compensation Association
866 specified costs incurred by Medicaid; reordering and
867 amending s. 766.302, F.S.; defining terms; revising
868 definitions; amending s. 766.303, F.S.; revising the
869 exclusiveness of rights and remedies of the Florida
870 Birth-Related Neurological Injury Compensation Plan;
871 making technical and conforming changes; amending s.
872 766.305, F.S.; making technical and conforming
873 changes; amending s. 766.309, F.S.; conforming a
874 cross-reference; amending s. 766.31, F.S.; revising
875 the expenses covered by an award for compensation
876 under the plan; revising services eligible for
877 compensation under certain annual benefits under the
878 plan; providing an additional benefit for
879 psychotherapeutic services for family members upon the
880 death of a participant; revising eligibility criteria
881 for transportation and housing assistance benefits
882 under the plan; providing coverage of certain legal
883 costs under the plan; requiring the plan to reimburse
884 certain claims and payments for plan participants also
885 enrolled in the state Medicaid program; requiring that
886 such funds be credited to the agency’s Medical Care
887 Trust Fund; requiring the plan to reimburse certain
888 participants by a specified date; prohibiting
889 compensation under the plan for family residential or
890 custodial care under certain circumstances;
891 authorizing the association to file a petition with
892 the Division of Administrative Hearings if there is a
893 dispute regarding overpayment of an expense
894 reimbursement under the plan; deleting obsolete
895 language; requiring family members of plan
896 participants to continuously maintain certain health
897 insurance coverage for the participant; requiring
898 family members of plan participants to obtain such
899 coverage or apply for Medicaid coverage within a
900 specified timeframe after entry of a final order for
901 an award for compensation under the plan; requiring
902 family members of current plan participants to obtain
903 the requisite health insurance coverage by a specified
904 date; amending s. 766.314, F.S.; requiring the
905 directors of the association to submit a plan of
906 operation, and any amendments thereto, to the Office
907 of Insurance Regulation for approval; revising
908 requirements for such plan; revising the schedule of
909 assessments participating hospitals and physicians are
910 required to pay to the association; deleting obsolete
911 language; making technical and conforming changes;
912 requiring the association to submit revised quarterly
913 claim estimates to the office within a specified
914 timeframe; extending the timeframe in which the
915 association is authorized to accept new claims
916 notwithstanding certain other provisions; requiring
917 the association to notify the Governor, the
918 Legislature, the office, the agency, and the
919 Department of Health within a specified timeframe if
920 certain plan estimates exceed specified limits;
921 postponing the future repeal of a specified provision;
922 amending s. 766.315, F.S.; revising membership of the
923 association’s board of directors; prohibiting the
924 board of directors from creating new benefits or
925 expanding existing benefits under the plan under
926 certain circumstances; providing construction;
927 revising requirements for certain reports of the
928 association; providing an effective date.