Florida Senate - 2026 CS for CS for SB 1668
By the Committee on Rules; the Appropriations Committee on
Agriculture, Environment, and General Government; and Senator
Burton
595-03410-26 20261668c2
1 A bill to be entitled
2 An act relating to the Florida Birth-Related
3 Neurological Injury Compensation Association; amending
4 s. 409.910, F.S.; requiring the Agency for Health Care
5 Administration to recover from the Florida Birth
6 Related Neurological Injury Compensation Association
7 specified costs incurred by Medicaid; reordering and
8 amending s. 766.302, F.S.; defining terms; revising
9 definitions; amending s. 766.303, F.S.; revising the
10 exclusiveness of rights and remedies of the Florida
11 Birth-Related Neurological Injury Compensation Plan;
12 making technical and conforming changes; amending s.
13 766.305, F.S.; making technical and conforming
14 changes; amending s. 766.309, F.S.; conforming a
15 cross-reference; amending s. 766.31, F.S.; revising
16 the expenses covered by an award for compensation
17 under the plan; revising services eligible for
18 compensation under certain annual benefits under the
19 plan; providing an additional benefit for
20 psychotherapeutic services for family members upon the
21 death of a participant; revising eligibility criteria
22 for transportation and housing assistance benefits
23 under the plan; providing coverage of certain legal
24 costs under the plan; requiring the plan to reimburse
25 certain claims and payments for plan participants also
26 enrolled in the state Medicaid program; requiring that
27 such funds be credited to the agency’s Medical Care
28 Trust Fund; requiring the plan to reimburse certain
29 participants by a specified date; prohibiting
30 compensation under the plan for family residential or
31 custodial care under certain circumstances;
32 authorizing the association to file a petition with
33 the Division of Administrative Hearings if there is a
34 dispute regarding overpayment of an expense
35 reimbursement under the plan; deleting obsolete
36 language; requiring family members of plan
37 participants to continuously maintain certain health
38 insurance coverage for the participant; requiring
39 family members of plan participants to obtain such
40 coverage or apply for Medicaid coverage within a
41 specified timeframe after entry of a final order for
42 an award for compensation under the plan; requiring
43 family members of current plan participants to obtain
44 the requisite health insurance coverage by a specified
45 date; amending s. 766.314, F.S.; requiring the
46 directors of the association to submit a plan of
47 operation, and any amendments thereto, to the Office
48 of Insurance Regulation for approval; revising
49 requirements for such plan; revising the schedule of
50 assessments participating hospitals and physicians are
51 required to pay to the association; deleting obsolete
52 language; making technical and conforming changes;
53 requiring the association to submit revised quarterly
54 claim estimates to the office within a specified
55 timeframe; extending the timeframe in which the
56 association is authorized to accept new claims
57 notwithstanding certain other provisions; requiring
58 the association to notify the Governor, the
59 Legislature, the office, the agency, and the
60 Department of Health within a specified timeframe if
61 certain plan estimates exceed specified limits;
62 postponing the future repeal of a specified provision;
63 amending s. 766.315, F.S.; revising membership of the
64 association’s board of directors; prohibiting the
65 board of directors from creating new benefits or
66 expanding existing benefits under the plan under
67 certain circumstances; providing construction;
68 revising requirements for certain reports of the
69 association; providing an effective date.
70
71 Be It Enacted by the Legislature of the State of Florida:
72
73 Section 1. Paragraph (a) of subsection (7) of section
74 409.910, Florida Statutes, is amended to read:
75 409.910 Responsibility for payments on behalf of Medicaid
76 eligible persons when other parties are liable.—
77 (7) The agency shall recover the full amount of all medical
78 assistance provided by Medicaid on behalf of the recipient to
79 the full extent of third-party benefits.
80 (a) Recovery of such benefits shall be collected directly
81 from:
82 1. Any third party;
83 2. The recipient or legal representative, if he or she has
84 received third-party benefits;
85 3. The provider of a recipient’s medical services if third
86 party benefits have been recovered by the provider;
87 notwithstanding any provision of this section, to the contrary,
88 however, no provider shall be required to refund or pay to the
89 agency any amount in excess of the actual third-party benefits
90 received by the provider from a third-party payor for medical
91 services provided to the recipient; or
92 4. Any person who has received the third-party benefits; or
93 5. The Florida Birth-Related Neurological Injury
94 Compensation Association for plan participant costs incurred
95 under s. 766.31.
96
97 The provisions of this subsection do not apply to any proceeds
98 received by the state, or any agency thereof, pursuant to a
99 final order, judgment, or settlement agreement, in any matter in
100 which the state asserts claims brought on its own behalf, and
101 not as a subrogee of a recipient, or under other theories of
102 liability. The provisions of this subsection do not apply to any
103 proceeds received by the state, or an agency thereof, pursuant
104 to a final order, judgment, or settlement agreement, in any
105 matter in which the state asserted both claims as a subrogee and
106 additional claims, except as to those sums specifically
107 identified in the final order, judgment, or settlement agreement
108 as reimbursements to the recipient as expenditures for the named
109 recipient on the subrogation claim.
110 Section 2. Section 766.302, Florida Statutes, is reordered
111 and amended to read:
112 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
113 766.301-766.316, the term:
114 (1) “Actuarially sound” means that the total plan assets
115 available to fund future liabilities are equal to or greater
116 than 90 percent of the present value of total estimated
117 liabilities excluding any risk margin.
118 (2)(4) “Administrative law judge” means an administrative
119 law judge appointed by the division.
120 (3)(1) “Association” means the Florida Birth-Related
121 Neurological Injury Compensation Association established in s.
122 766.315 to administer the Florida Birth-Related Neurological
123 Injury Compensation Plan and the plan of operation established
124 in s. 766.314.
125 (4)(2) “Birth-related neurological injury” means injury to
126 the brain or spinal cord of a live infant weighing at least
127 2,500 grams for a single gestation or, in the case of a multiple
128 gestation, a live infant weighing at least 2,000 grams at birth
129 caused by oxygen deprivation or mechanical injury occurring in
130 the course of labor, delivery, or resuscitation in the immediate
131 postdelivery period in a hospital, which renders the infant
132 permanently and substantially mentally and physically impaired.
133 This definition shall apply to live births only and does shall
134 not include disability or death caused by genetic or congenital
135 abnormality.
136 (5)(3) “Claimant” means any person who files a claim
137 pursuant to s. 766.305 for compensation for a birth-related
138 neurological injury to an infant. Such a claim may be filed by
139 any legal representative on behalf of an injured infant; and, in
140 the case of a deceased infant, the claim may be filed by an
141 administrator, personal representative, or other legal
142 representative thereof.
143 (6)(5) “Division” means the Division of Administrative
144 Hearings of the Department of Management Services.
145 (7)(9) “Family member” means a father, mother, or legal
146 guardian.
147 (8)(10) “Family residential or custodial care” means care
148 normally rendered by trained professional attendants which is
149 beyond the scope of child care duties, but which is provided by
150 family members. Family members who provide nonprofessional
151 residential or custodial care may not be compensated under this
152 act for care that falls within the scope of child care duties
153 and other services normally and gratuitously provided by family
154 members. Family residential or custodial care shall be performed
155 only at the direction and control of a physician when such care
156 is medically necessary. Reasonable charges for expenses for
157 family residential or custodial care provided by a family member
158 shall be determined as follows:
159 (a) If the family member is not employed, the per-hour
160 value equals the federal minimum hourly wage.
161 (b) If the family member is employed and elects to leave
162 that employment to provide such care, the per-hour value of that
163 care shall equal the rates established by Medicaid for private
164 duty services provided by a home health aide. A family member or
165 a combination of family members providing care in accordance
166 with this definition may not be compensated for more than a
167 total of 10 hours per day. Family care is in lieu of
168 professional residential or custodial care, and no professional
169 residential or custodial care may be awarded for the period of
170 time during the day that family care is being provided.
171 (9)(6) “Hospital” means any hospital licensed in Florida.
172 (10) “Office” means the Office of Insurance Regulation.
173 (11) “Participant” means the person who suffered a birth
174 related neurological injury as an infant and who accepted
175 compensation under the plan by final order entered by an
176 administrative law judge pursuant to s. 766.309.
177 (12)(7) “Participating physician” means a physician
178 licensed in Florida to practice medicine who practices
179 obstetrics or performs obstetrical services either full time or
180 part time and who had paid or was exempted from payment at the
181 time of the injury the assessment required for participation in
182 the birth-related neurological injury compensation plan for the
183 year in which the injury occurred. Such term does shall not
184 apply to any physician who practices medicine as an officer,
185 employee, or agent of the Federal Government.
186 (13)(8) “Plan” means the Florida Birth-Related Neurological
187 Injury Compensation Plan established under s. 766.303.
188 (14) “Risk margin” means an additional, explicit allowance
189 above the best-estimate reserve to reflect uncertainty in future
190 claim payments, including variations in claimant life expectancy
191 and the number and cost of pending or unreported claims. The
192 risk margin is not included in the reserve amount used to
193 calculate the funding ratio.
194 Section 3. Section 766.303, Florida Statutes, is amended to
195 read:
196 766.303 Florida Birth-Related Neurological Injury
197 Compensation Plan; exclusiveness of remedy.—
198 (1) There is established the Florida Birth-Related
199 Neurological Injury Compensation Plan for the purpose of
200 providing compensation, irrespective of fault, for birth-related
201 neurological injuries injury claims. Such plan shall apply to
202 births occurring on or after January 1, 1989, and shall be
203 administered by the Florida Birth-Related Neurological Injury
204 Compensation Association.
205 (2) The rights and remedies granted by this plan on account
206 of a birth-related neurological injury shall exclude all other
207 rights and remedies of such infant, her or his personal
208 representative, family members parents, dependents, and next of
209 kin, at common law or otherwise, against any person or entity
210 directly involved with the labor, delivery, or immediate
211 postdelivery resuscitation during which such injury occurs,
212 arising out of or related to a medical negligence claim with
213 respect to such injury; except that a civil action may shall not
214 be foreclosed where there is clear and convincing evidence of
215 bad faith or malicious purpose or willful and wanton disregard
216 of human rights, safety, or property, provided that such suit is
217 filed prior to and in lieu of payment of an award under ss.
218 766.301-766.316. Such suit shall be filed before the award of
219 the division becomes conclusive and binding as provided for in
220 s. 766.311.
221 (3) Sovereign immunity is hereby waived on behalf of the
222 Florida Birth-Related Neurological Injury Compensation
223 Association solely to the extent necessary to assure payment of
224 compensation as provided in s. 766.31.
225 (4) The association shall administer the plan in a manner
226 that promotes and protects the health and best interests of
227 participants children with birth-related neurological injuries.
228 Section 4. Subsections (1) and (3) of section 766.305,
229 Florida Statutes, are amended to read:
230 766.305 Filing of claims and responses; medical
231 disciplinary review.—
232 (1) All claims filed for compensation under the plan must
233 shall commence by the claimant filing with the division a
234 petition that includes all of seeking compensation. Such
235 petition shall include the following information:
236 (a) The name and address of the legal representative and
237 the basis for her or his representation of the injured infant.
238 (b) The name and address of the injured infant.
239 (c) The name and address of any physician providing
240 obstetrical services who was present at the birth and the name
241 and address of the hospital at which the birth occurred.
242 (d) A description of the disability for which the claim is
243 made.
244 (e) The time and place the injury occurred.
245 (f) A brief statement of the facts and circumstances
246 surrounding the injury and giving rise to the claim.
247 (3) The claimant shall furnish to the Florida Birth-Related
248 Neurological Injury Compensation association the following
249 information, which must be filed with the association within 10
250 days after the filing of the petition as set forth in subsection
251 (1):
252 (a) All available relevant medical records relating to the
253 birth-related neurological injury and a list identifying any
254 unavailable records known to the claimant and the reasons for
255 the records’ unavailability.
256 (b) Appropriate assessments, evaluations, and prognoses and
257 such other records and documents as are reasonably necessary for
258 the determination of the amount of compensation to be paid to,
259 or on behalf of, the injured infant on account of the birth
260 related neurological injury.
261 (c) Documentation of expenses and services incurred to date
262 which identifies any payment made for such expenses and services
263 and the payor.
264 (d) Documentation of any applicable private or governmental
265 source of services or reimbursement relative to the impairments.
266
267 The information required by paragraphs (a)-(d) shall remain
268 confidential and exempt under the provisions of s. 766.315(6)(b)
269 s. 766.315(5)(b).
270 Section 5. Paragraph (a) of subsection (1) of section
271 766.309, Florida Statutes, is amended to read:
272 766.309 Determination of claims; presumption; findings of
273 administrative law judge binding on participants.—
274 (1) The administrative law judge shall make the following
275 determinations based upon all available evidence:
276 (a) Whether the injury claimed is a birth-related
277 neurological injury. If the claimant has demonstrated, to the
278 satisfaction of the administrative law judge, that the infant
279 has sustained a brain or spinal cord injury caused by oxygen
280 deprivation or mechanical injury and that the infant was thereby
281 rendered permanently and substantially mentally and physically
282 impaired, a rebuttable presumption shall arise that the injury
283 is a birth-related neurological injury as defined in s. 766.302
284 s. 766.302(2).
285 Section 6. Section 766.31, Florida Statutes, is amended to
286 read:
287 766.31 Administrative law judge awards for birth-related
288 neurological injuries; notice of award.—
289 (1) Upon determining that an infant has sustained a birth
290 related neurological injury and that obstetrical services were
291 delivered by a participating physician at the birth, the
292 administrative law judge shall make an award providing
293 compensation for the following items relative to such injury:
294 (a) Actual expenses incurred since the date of birth for
295 medically necessary and reasonable:
296 1. Medical and hospital care and services;,
297 2. Habilitative services; and training,
298 3. Dental services;
299 4. Family residential or custodial care;,
300 5. Professional residential care;, and
301 6. Professional custodial care; and service,
302 7. for medically necessary Drugs;,
303 8. Special equipment;, and facilities, and
304 9. for Related travel.
305 (b) At a minimum, compensation must be provided for the
306 following actual expenses:
307 1. Psychotherapeutic services for A total annual benefit of
308 up to $10,000 for immediate family members and other relatives
309 who have resided reside with the participant, which are infant
310 for psychotherapeutic services obtained from a psychiatrist
311 licensed under chapter 458 or chapter 459, a provider providers
312 licensed under chapter 490 or chapter 491, or a psychiatrist or
313 provider who has equivalent licensure by another jurisdiction.
314 This benefit for such family members and relatives shall be up
315 to a total of $10,000 annually during the participant’s lifetime
316 and up to a total of $20,000 subsequent to the participant’s
317 death.
318 2. For the life of the participant child, providing family
319 members parents or legal guardians with a reliable method of
320 transporting transportation for the care of the participant and
321 child or reimbursing the cost of upgrading an existing vehicle
322 to accommodate the participant’s wheelchair and medically
323 necessary equipment child’s needs when it becomes medically
324 necessary for wheelchair transportation. The mode of
325 transportation must take into account the special accommodations
326 required for the specific child. The plan may not limit such
327 transportation assistance based on the participant’s child’s age
328 or weight. The plan must replace any vehicle vans purchased by
329 the plan every 7 years or 150,000 miles, whichever comes first.
330 3. Housing assistance of up to $100,000 for the life of the
331 participant child, including, but not limited to, a down payment
332 on a new home, moving expenses, and home construction and
333 modification costs.
334 4. Legal costs associated with establishing and maintaining
335 guardianship for a participant.
336 (c)1. The costs of a health insurance policy or health
337 maintenance contract that provides major medical or similar
338 comprehensive health insurance coverage for the participant
339 obtained pursuant to subsection (3), including, but not limited
340 to, the premium and out-of-pocket costs. For participants
341 enrolled in the state Medicaid program, the plan must reimburse
342 fee-for-service paid claims and capitation payments, as
343 applicable, for services provided to such participants pursuant
344 to this section and for the administrative and support costs
345 associated with the provided medical assistance. Such funds
346 shall be credited to the Agency for Health Care Administration’s
347 Medical Care Trust Fund.
348 2. By December 31, 2026, the plan shall reimburse any
349 participant for reasonable, medically necessary care received by
350 the participant on or before June 30, 2026, which was reduced or
351 not paid by the plan because such participant did not have
352 comprehensive or major medical health insurance coverage through
353 an insurer or a health maintenance organization.
354 (d)(b) However, the following expenses are not subject to
355 compensation:
356 1. Expenses for items or services that the participant
357 infant has received, or is entitled to receive, under the laws
358 of any state or the Federal Government, except to the extent
359 such exclusion may be prohibited by federal law.
360 2. Expenses for items or services that the participant
361 infant has received, or is contractually entitled to receive,
362 from any prepaid health plan, health maintenance organization,
363 or other private insuring entity.
364 3. Expenses for which the participant infant has received
365 reimbursement, or for which the participant infant is entitled
366 to receive reimbursement, under the laws of any state or the
367 Federal Government, except to the extent such exclusion may be
368 prohibited by federal law.
369 4. Expenses for which the participant infant has received
370 reimbursement, or for which the participant infant is
371 contractually entitled to receive reimbursement, pursuant to the
372 provisions of any health or sickness insurance policy or other
373 private insurance program.
374 5. Expenses for family residential or custodial care
375 provided by a family member while:
376 a. Care and supervision of the participant is
377 simultaneously being provided by another person or entity; or
378 b. The family member receives compensation from another
379 source for work performed during the same time for which
380 compensation is sought from the association.
381 (e)(c) Expenses included under paragraphs paragraph (a) and
382 (b) are limited to reasonable charges prevailing in the same
383 community for similar treatment of injured persons when such
384 treatment is paid for by the injured person.
385 (f)1. A family member The parents or legal guardians
386 receiving benefits under the plan may file a petition with the
387 division of Administrative Hearings to dispute the amount of
388 actual expenses reimbursed or a denial of reimbursement.
389 2. In the case of an alleged overpayment of an expense
390 reimbursement by the association to a family member, if the
391 family member does not agree that an overpayment has occurred,
392 the association may file a petition for division review of the
393 overpayment for a determination of the amount, if any, to be
394 recouped by the association.
395 (g)1.(d)1.a. Periodic payments of an award to the family
396 members parents or legal guardians of the participant infant
397 found to have sustained a birth-related neurological injury,
398 which award may not exceed $100,000. However, at the discretion
399 of the administrative law judge, such award may be made in a
400 lump sum. Beginning on January 1, 2021, the award may not exceed
401 $250,000, and each January 1 thereafter, the maximum award
402 authorized under this paragraph shall increase by 3 percent.
403 b. Parents or legal guardians who received an award
404 pursuant to this section before January 1, 2021, must receive a
405 retroactive payment in an amount sufficient to bring the total
406 award paid to the parents or legal guardians pursuant to sub
407 subparagraph a. to $250,000. This additional payment may be made
408 in a lump sum or in periodic payments as designated by the
409 parents or legal guardians and must be paid by July 1, 2021.
410 2.a. Death benefit for the participant infant in an amount
411 of $50,000.
412 b. Parents or legal guardians who received an award
413 pursuant to this section, and whose child died since the
414 inception of the program, must receive a retroactive payment in
415 an amount sufficient to bring the total award paid to the
416 parents or legal guardians pursuant to sub-subparagraph a. to
417 $50,000. This additional payment may be made in a lump sum or in
418 periodic payments as designated by the parents or legal
419 guardians and must be paid by July 1, 2021.
420 (h)(e) Reasonable expenses incurred in connection with the
421 filing of a claim under ss. 766.301-766.316, including
422 reasonable attorney attorney’s fees, which shall be subject to
423 the approval and award of the administrative law judge. In
424 determining an award for attorney attorney’s fees, the
425 administrative law judge shall consider the following factors:
426 1. The time and labor required, the novelty and difficulty
427 of the questions involved, and the skill requisite to perform
428 the legal services properly.
429 2. The fee customarily charged in the locality for similar
430 legal services.
431 3. The time limitations imposed by the claimant or the
432 circumstances.
433 4. The nature and length of the professional relationship
434 with the claimant.
435 5. The experience, reputation, and ability of the lawyer or
436 lawyers performing services.
437 6. The contingency or certainty of a fee.
438
439 If there is Should there be a final determination of
440 compensability, and the claimants accept an award under this
441 section, the claimants are not liable for any expenses,
442 including attorney fees, incurred in connection with the filing
443 of a claim under ss. 766.301-766.316 other than those expenses
444 awarded under this section.
445 (2) The award shall require the immediate payment of
446 expenses previously incurred and shall require that future
447 expenses be paid as incurred.
448 (3) A family member must continuously maintain a health
449 insurance policy or health maintenance contract that provides
450 comprehensive major medical health insurance coverage for the
451 participant.
452 (a) If the participant does not have such coverage at the
453 time of entry of a final order by an administrative law judge
454 approving a claim for compensation, the family member must
455 obtain coverage within 60 days after entry of such order or
456 apply for Medicaid coverage within 30 days after entry of such
457 order.
458 (b) If the participant is determined to be ineligible for
459 Medicaid, the family member must obtain other coverage within 60
460 days after receiving the Medicaid application denial.
461 (c) A family member of an individual who is a participant
462 on June 30, 2026, must obtain the required coverage for the
463 participant by January 1, 2027.
464 (4)(3) A copy of the award shall be sent immediately by
465 registered or certified mail to each person served with a copy
466 of the petition under s. 766.305(2).
467 Section 7. Section 766.314, Florida Statutes, is amended to
468 read:
469 766.314 Assessments; plan of operation.—
470 (1) The assessments established under pursuant to this
471 section shall be used to finance the Florida Birth-Related
472 Neurological Injury Compensation Plan.
473 (2) The assessments and appropriations dedicated to the
474 plan shall be administered by the Florida Birth-Related
475 Neurological Injury Compensation Association established in s.
476 766.315, in accordance with the following requirements:
477 (a) On or before July 1, 1988, The directors of the
478 association shall submit to the office Department of Insurance
479 for review and approval a plan of operation and any amendment
480 thereto which shall provide for the efficient administration of
481 the plan and for prompt processing of claims against and awards
482 made on behalf of the plan.
483 (b) The plan of operation must shall include provision for:
484 1. Establishment of necessary facilities;
485 2. Management of the funds collected on behalf of the plan;
486 3. Processing of claims against the plan;
487 4. Assessment of the persons and entities listed in
488 subsections (4) and (5) to pay awards and expenses, which
489 assessments shall be on an actuarially sound basis subject to
490 the limits set forth in subsections (4) and (5);
491 5. A fraud and overpayment prevention and detection
492 program; and
493 6.5. Any other matters necessary for the efficient
494 operation of the Florida Birth-Related Neurological Injury
495 Compensation Plan.
496 (b) Amendments to the plan of operation may be made by the
497 directors of the plan, subject to the approval of the office of
498 Insurance Regulation of the Financial Services Commission.
499 (3) All assessments shall be deposited with the Florida
500 Birth-Related Neurological Injury Compensation association. The
501 funds collected by the association and any income therefrom
502 shall be disbursed only for the payment of awards under ss.
503 766.301-766.316 and for the payment of the reasonable expenses
504 of administering the plan.
505 (4) The following persons and entities shall pay into the
506 association assessments as follows an initial assessment in
507 accordance with the plan of operation:
508 (a)1. On or before October 1, 1988, Each hospital licensed
509 under chapter 395 shall pay an initial assessment of $50 per
510 infant delivered in that the hospital during the prior calendar
511 year, as reported to the Agency for Health Care Administration;
512 provided, however, that a hospital owned or operated by the
513 state or a county, special taxing district, or other political
514 subdivision of the state shall not be required to pay the
515 initial assessment or any assessment required by this subsection
516 or subsection (5). The term “infant delivered” includes live
517 births and not stillbirths, but the term does not include
518 infants delivered by employees or agents of the board of
519 trustees of a state university, those born in a teaching
520 hospital as defined in s. 408.07, or those born in a teaching
521 hospital as defined in s. 395.806 that have been deemed by the
522 association as being exempt from assessments since fiscal year
523 1997 to fiscal year 2001. The initial assessment and any
524 assessment imposed pursuant to subsection (5) may not include
525 any infant born to a charity patient (as defined by rule of the
526 Agency for Health Care Administration) or born to a patient for
527 whom the hospital receives Medicaid reimbursement, if the sum of
528 the annual charges for charity patients plus the annual Medicaid
529 contractuals of the hospital exceeds 10 percent of the total
530 annual gross operating revenues of the hospital. The hospital is
531 responsible for documenting, to the satisfaction of the
532 association, the exclusion of any birth from the computation of
533 the assessment. Upon demonstration of financial need by a
534 hospital, the association may provide for installment payments
535 of assessments.
536 2. Assessments are due, and hospitals shall pay all
537 assessments required under this section, by December 31 of the
538 calendar year immediately subsequent to the birth year.
539 (b)1.a. On or before October 15, 1988, All physicians
540 licensed pursuant to chapter 458 or chapter 459 as of October 1,
541 1988, other than participating physicians, shall be assessed an
542 annual initial assessment of $250.,
543 b. Payment for all assessments required under this
544 paragraph is due on or before December 31 of each year which
545 must be paid no later than December 1, 1988.
546 2. Any such physician who becomes licensed after September
547 30, 1988, and before January 1, 1989, shall pay into the
548 association an initial assessment of $250 upon licensure.
549 3. Any such physician who becomes licensed on or after
550 January 1, 1989, shall pay an initial assessment equal to the
551 most recent assessment made pursuant to this paragraph,
552 paragraph (5)(a), or paragraph (7)(b).
553 2.4. However, if the physician is a physician specified in
554 this subparagraph, the assessment is not applicable:
555 a. A resident physician, assistant resident physician, or
556 intern in an approved postgraduate training program, as defined
557 by the Board of Medicine or the Board of Osteopathic Medicine by
558 rule;
559 b. A retired physician who has withdrawn from the practice
560 of medicine but who maintains an active license as evidenced by
561 an affidavit filed with the Department of Health. Prior to
562 reentering the practice of medicine in this state, a retired
563 physician as herein defined must notify the Board of Medicine or
564 the Board of Osteopathic Medicine and pay the appropriate
565 assessments pursuant to this section;
566 c. A physician who holds a limited license pursuant to s.
567 458.317 and who is not being compensated for medical services;
568 d. A physician who is employed full time by the United
569 States Department of Veterans Affairs and whose practice is
570 confined to United States Department of Veterans Affairs
571 hospitals; or
572 e. A physician who is a member of the Armed Forces of the
573 United States and who meets the requirements of s. 456.024.
574 f. A physician who is employed full time by the State of
575 Florida and whose practice is confined to state-owned
576 correctional institutions, a county health department, or state
577 owned mental health or developmental services facilities, or who
578 is employed full time by the Department of Health.
579 (c)1. On or before December 1, 1988, Each physician
580 licensed pursuant to chapter 458 or chapter 459 who wishes to
581 participate in the Florida Birth-Related Neurological Injury
582 Compensation Plan and who otherwise qualifies as a participating
583 physician under ss. 766.301-766.316 shall pay an annual initial
584 assessment of $5,000 and any assessment required under paragraph
585 (5)(a), if assessed. However, if the physician is either a
586 resident physician, assistant resident physician, or intern in
587 an approved postgraduate training program, as defined by the
588 Board of Medicine or the Board of Osteopathic Medicine by rule,
589 and is supervised in accordance with program requirements
590 established by the Accreditation Council for Graduate Medical
591 Education or the American Osteopathic Association by a physician
592 who is participating in the plan, such resident physician,
593 assistant resident physician, or intern is deemed to be a
594 participating physician without the payment of the assessment.
595 Participating physicians also include any employee of the board
596 of trustees of a state university who has paid the assessment
597 required by this paragraph and, if assessed, paragraph (5)(a),
598 and any certified nurse midwife supervised by such employee.
599 Participating physicians include any certified nurse midwife who
600 has paid 50 percent of the physician assessment required by this
601 paragraph and, if assessed, paragraph (5)(a) and who is
602 supervised by a participating physician who has paid the
603 assessment required by this paragraph and, if assessed,
604 paragraph (5)(a). Supervision for nurse midwives shall require
605 that the supervising physician will be easily available and have
606 a prearranged plan of treatment for specified patient problems
607 which the supervised certified nurse midwife may carry out in
608 the absence of any complicating features. Any physician who
609 elects to participate in such plan on or after January 1, 1989,
610 who was not a participating physician at the time of such
611 election to participate and who otherwise qualifies as a
612 participating physician under ss. 766.301-766.316 shall pay an
613 additional initial assessment equal to the most recent
614 assessment made pursuant to this paragraph, paragraph (5)(a), or
615 paragraph (7)(b).
616 2. Payment of assessments required by this paragraph is due
617 on or before December 31 of each year for qualification as a
618 participating physician during the next calendar year. If
619 payment of the assessments is received by the association on or
620 before January 31 of any calendar year, the physician shall
621 qualify as a participating physician for that entire calendar
622 year. If the payment is received after January 31, the physician
623 shall qualify as a participating physician for that calendar
624 year only from the date the payment was received by the
625 association.
626 (d) Any hospital located in a county with a population in
627 excess of 1.1 million as of January 1, 2003, as determined by
628 the Agency for Health Care Administration under the Health Care
629 Responsibility Act, may elect to pay the assessments required by
630 paragraph (c) fee for the participating physician and the
631 certified nurse midwife if the hospital first determines that
632 the primary motivating purpose for making such payment is to
633 ensure coverage for the hospital’s patients under the provisions
634 of ss. 766.301-766.316; however, no hospital may restrict any
635 participating physician or nurse midwife, directly or
636 indirectly, from being on the staff of hospitals other than the
637 staff of the hospital making the payment. Each hospital shall
638 file with the association an affidavit setting forth
639 specifically the reasons why the hospital elected to make the
640 payment on behalf of each participating physician and certified
641 nurse midwife. The payments authorized under this paragraph
642 shall be in addition to the assessment set forth in paragraph
643 (5)(a).
644 (5)(a) Beginning January 1, 1990, The persons and entities
645 listed in paragraphs (4)(b) and (c), except those persons or
646 entities who are specifically excluded from such said
647 provisions, as of the date determined in accordance with the
648 plan of operation, taking into account persons licensed
649 subsequent to the payment of the initial assessment, shall pay
650 an annual assessment in the amount equal to the initial
651 assessments provided in paragraphs (4)(b) and (c). If payment of
652 the annual assessment by a physician is received by the
653 association by January 31 of any calendar year, the physician
654 shall qualify as a participating physician for that entire
655 calendar year. If the payment is received after January 31 of
656 any calendar year, the physician shall qualify as a
657 participating physician for that calendar year only from the
658 date the payment was received by the association. On January 1,
659 1991, and on each January 1 thereafter, the association shall
660 determine the amount of additional assessments necessary
661 pursuant to subsection (7), in the manner required by the plan
662 of operation, subject to any increase determined to be necessary
663 by the office of Insurance Regulation pursuant to paragraph
664 (7)(b). On July 1, 1991, and on each July 1 thereafter, the
665 persons and entities listed in paragraphs (4)(b) and (c), except
666 those persons or entities who are specifically excluded from
667 such said provisions, shall pay the additional assessments which
668 were determined on January 1. Beginning January 1, 1990, the
669 entities listed in paragraph (4)(a), including those licensed on
670 or after October 1, 1988, shall pay an annual assessment of $50
671 per infant delivered during the prior calendar year. The
672 additional assessments which were determined on January 1, 1991,
673 pursuant to the provisions of subsection (7) shall not be due
674 and payable by the entities listed in paragraph (4)(a) until
675 July 1.
676 (b) If the assessments collected pursuant to subsection (4)
677 and the appropriation of funds provided by s. 76, chapter 88-1,
678 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
679 Florida, to the plan from the Insurance Regulatory Trust Fund
680 are insufficient to maintain the plan on an actuarially sound
681 basis, there is hereby appropriated for transfer to the
682 association from the Insurance Regulatory Trust Fund an
683 additional amount of up to $20 million.
684 (c)1. Taking into account the assessments collected
685 pursuant to subsection (4) and appropriations from the Insurance
686 Regulatory Trust Fund, if required to maintain the plan on an
687 actuarially sound basis, the office of Insurance Regulation
688 shall require each entity licensed to issue casualty insurance
689 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
690 association an annual assessment in an amount determined by the
691 office pursuant to paragraph (7)(a), in the manner required by
692 the plan of operation.
693 2. All annual assessments shall be made on the basis of net
694 direct premiums written for the business activity that which
695 forms the basis for each such entity’s inclusion as a funding
696 source for the plan in the state during the prior year ending
697 December 31, as reported to the office of Insurance Regulation,
698 and shall be in the proportion that the net direct premiums
699 written by each carrier on account of the business activity
700 forming the basis for its inclusion in the plan bears to the
701 aggregate net direct premiums for all such business activity
702 written in this state by all such entities.
703 3. No entity listed in this paragraph shall be individually
704 liable for an annual assessment in excess of 0.25 percent of
705 that entity’s net direct premiums written.
706 4. Casualty insurance carriers shall be entitled to recover
707 their initial and annual assessments through a surcharge on
708 future policies, a rate increase applicable prospectively, or a
709 combination of the two.
710 (6)(a) The association shall make all assessments required
711 by this section, except initial assessments of physicians newly
712 licensed by the Department of Health, which assessments will be
713 made by the Department of Health, and except assessments of
714 casualty insurers pursuant to subparagraph (5)(c)1., which
715 assessments will be made by the office of Insurance Regulation.
716 The Department of Health shall provide the association, in an
717 electronic format, with a monthly report of the names and
718 license numbers of all physicians licensed under chapter 458 or
719 chapter 459.
720 (b)1. The association may enforce collection of assessments
721 required to be paid pursuant to ss. 766.301-766.316 by suit
722 filed in county court, or in circuit court if the amount due
723 could exceed the jurisdictional limits of county court. The
724 association is entitled to an award of attorney fees, costs, and
725 interest upon the entry of a judgment against a physician for
726 failure to pay such assessment, with such interest accruing
727 until paid. Notwithstanding chapters 47 and 48, the association
728 may file such suit in either Leon County or the county of the
729 residence of the defendant. The association shall notify the
730 Department of Health and the applicable board of any unpaid
731 final judgment against a physician within 7 days after the entry
732 of final judgment.
733 2. The Department of Health, upon notification by the
734 association that an assessment has not been paid and that there
735 is an unsatisfied judgment against a physician, shall refuse to
736 renew any license issued to such physician under chapter 458 or
737 chapter 459 until the association notifies the Department of
738 Health that the judgment is satisfied in full.
739 (c) The Agency for Health Care Administration shall, upon
740 notification by the association that an assessment has not been
741 timely paid, enforce collection of such assessments required to
742 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
743 a hospital to pay such assessment is grounds for disciplinary
744 action pursuant to s. 395.1065 notwithstanding any law to the
745 contrary.
746 (7)(a) The office of Insurance Regulation shall undertake
747 an actuarial investigation of the requirements of the plan based
748 on the plan’s experience in the first year of operation and any
749 additional relevant information, including without limitation
750 the assets and liabilities of the plan. Pursuant to such
751 investigation, the office of Insurance Regulation shall
752 establish the rate of contribution of the entities listed in
753 paragraph (5)(c) for the tax year beginning January 1, 1990.
754 Following the initial valuation, the office of Insurance
755 Regulation shall cause an actuarial valuation to be made of the
756 assets and liabilities of the plan no less frequently than
757 biennially. Pursuant to the results of such valuations, the
758 office of Insurance Regulation shall prepare a statement as to
759 the contribution rate applicable to the entities listed in
760 paragraph (5)(c). However, at no time shall the rate be greater
761 than 0.25 percent of net direct premiums written.
762 (b) If the office of Insurance Regulation finds that the
763 plan cannot be maintained on an actuarially sound basis based on
764 the assessments and appropriations listed in subsections (4) and
765 (5), the office shall increase the assessments specified in
766 subsection (4) on a proportional basis as needed.
767 (8) The association shall report to the Legislature its
768 determination as to the annual cost of maintaining the fund on
769 an actuarially sound basis. In making its determination, the
770 association shall consider the recommendations of all hospitals,
771 physicians, casualty insurers, attorneys, consumers, and any
772 associations representing any such person or entity.
773 Notwithstanding the provisions of s. 395.3025, all hospitals,
774 casualty insurers, departments, boards, commissions, and
775 legislative committees shall provide the association with all
776 relevant records and information upon request to assist the
777 association in making its determination. All hospitals shall,
778 upon request by the association, provide the association with
779 information from their records regarding any live birth. Such
780 information may shall not include the name of any physician, the
781 name of any hospital employee or agent, the name of the patient,
782 or any other information which will identify the infant involved
783 in the birth. Such information thereby obtained must shall be
784 utilized solely for the purpose of assisting the association and
785 may shall not subject the hospital to any civil or criminal
786 liability for the release thereof. Such information shall
787 otherwise be confidential and exempt from the provisions of s.
788 119.07(1) and s. 24(a), Art. I of the State Constitution.
789 (9)(a) Within 60 days after a claim is filed, the
790 association shall estimate the present value of the total cost
791 of the claim, including the estimated amount to be paid to the
792 claimant, the claimant’s attorney, the attorney attorney’s fees
793 of the association incident to the claim, and any other expenses
794 that are reasonably anticipated to be incurred by the
795 association in connection with the adjudication and payment of
796 the claim. For purposes of this estimate, the association should
797 include the maximum benefits for noneconomic damages.
798 (b) The association shall revise these estimates quarterly
799 based upon the actual costs incurred and any additional
800 information that becomes available to the association since the
801 last review of this estimate. The estimate shall be reduced by
802 any amounts paid by the association that were included in the
803 current estimate. The association shall submit revised quarterly
804 claim estimates to the office within 15 business days after the
805 end of each quarter.
806 (c)1. If the total of all current estimates equals or
807 exceeds 100 percent of the funds on hand and the funds that will
808 become available to the association within the next 12 months
809 from all sources described in subsection (4) and paragraph
810 (5)(a), the association may not accept any new claims without
811 express authority from the Legislature. This section does not
812 preclude the association from accepting any claim if the injury
813 occurred 18 months or more before the effective date of this
814 suspension. Within 30 days after the effective date of this
815 suspension, the association shall notify the Governor, the
816 President of the Senate, the Speaker of the House of
817 Representatives, the President of the Senate, the office of
818 Insurance Regulation, the Agency for Health Care Administration,
819 and the Department of Health of this suspension.
820 2. Notwithstanding this paragraph, the association is
821 authorized to accept new claims during the 2026-2027 2025-2026
822 fiscal year even if the total of all current estimates exceeds
823 the limits described in subparagraph 1. during that fiscal year;
824 however, if the total of all current estimates exceeds such
825 limits, the association must notify the Governor, the President
826 of the Senate, the Speaker of the House of Representatives, the
827 office, the Agency for Health Care Administration, and the
828 Department of Health within 5 days after it makes such
829 determination. This subparagraph expires July 1, 2027 2026.
830 (d) If any person is precluded from asserting a claim
831 against the association because of paragraph (c), the plan shall
832 not constitute the exclusive remedy for such person, his or her
833 personal representative, parents, dependents, or next of kin.
834 Section 8. Present subsections (5) through (8) of section
835 766.315, Florida Statutes, are redesignated as subsections (6)
836 through (9), respectively, a new subsection (5) is added to that
837 section, and subsection (1), paragraph (e) of present subsection
838 (5), and present subsections (7) and (8) of that section are
839 amended, to read:
840 766.315 Florida Birth-Related Neurological Injury
841 Compensation Association; board of directors; notice of
842 meetings; report.—
843 (1)(a) The Florida Birth-Related Neurological Injury
844 Compensation Plan shall be governed by a board of seven
845 directors which shall be known as the Florida Birth-Related
846 Neurological Injury Compensation Association. The association is
847 not a state agency, board, or commission. Notwithstanding the
848 provision of s. 15.03, the association is authorized to use the
849 state seal.
850 (b) The directors shall be appointed for staggered terms of
851 3 years or until their successors are appointed and have
852 qualified; however, a director may not serve for more than 6
853 consecutive years.
854 (c) The directors shall be appointed by the Chief Financial
855 Officer as follows:
856 1. One citizen representative who is not affiliated with
857 any of the groups identified in subparagraphs 2.-7.
858 2. One representative of participating physicians.
859 3. One representative of hospitals.
860 4. One representative of casualty insurers.
861 5. One representative of physicians other than
862 participating physicians.
863 6. One family member of a participant parent or legal
864 guardian representative of an injured infant under the plan.
865 7. One representative of an advocacy organization for
866 children with disabilities.
867 (5) Notwithstanding this section, the board of directors
868 may not create new benefits or expand existing benefits that
869 result in additional costs to the plan if the plan is operating
870 at an annual cash flow deficit, as documented in the plan’s
871 audited financial statements for the prior fiscal year. This
872 subsection does not prohibit the plan from providing benefits
873 set forth in s. 766.31.
874 (6)(5)
875 (e) Annually, the association shall furnish audited
876 financial reports to any plan participant upon request, to the
877 office of Insurance Regulation of the Financial Services
878 Commission, and to the Joint Legislative Auditing Committee. The
879 reports must be prepared in accordance with generally accepted
880 auditing standards accounting procedures and must include such
881 information as may be required by the office of Insurance
882 Regulation or the Joint Legislative Auditing Committee. At any
883 time determined to be necessary, the office of Insurance
884 Regulation or the Joint Legislative Auditing Committee may
885 conduct an audit of the plan.
886 (8)(7) The association shall publish a report on its
887 website by January 1 of each year. The report must shall include
888 all of the following:
889 (a) The names and terms of each board member and executive
890 staff member.
891 (b) The amount of compensation paid to each association
892 employee or independent contractor.
893 (c) A summary of reimbursement disputes and resolutions.
894 (d) A list of expenditures for attorney fees and lobbying
895 fees.
896 (e) Other expenses to oppose each plan claim. Any personal
897 identifying information of the parent, legal guardian, or child
898 involved in the claim must be removed from this list.
899 (9)(8) By November 1 of each year, the association shall
900 submit a report to the Governor, the President of the Senate,
901 the Speaker of the House of Representatives, and the Chief
902 Financial Officer. The report must include all of the following:
903 (a) The number of petitions filed for compensation with the
904 division, the number of claimants awarded compensation, the
905 number of claimants denied compensation, and the reasons for the
906 denial of compensation.
907 (b) The number and dollar amount of paid and denied
908 compensation for expenses by category and the reasons for any
909 denied compensation for expenses by category.
910 (c) The average turnaround time for paying or denying
911 compensation for expenses.
912 (d) Legislative recommendations to improve the program,
913 including to create new benefits or expand current benefits for
914 participants. Recommendations creating new benefits or expanding
915 current benefits must include estimates of the costs to the plan
916 for providing such benefits on an annual basis.
917 (e) A summary of any pending or resolved litigation during
918 the year which affects the plan.
919 (f) The amount of compensation paid to each association
920 employee, independent contractor, or member of the board of
921 directors.
922 Section 9. This act shall take effect upon becoming a law.