SENATE AMENDMENT
    Bill No. CS for CS for SB 250
    Amendment No. ___   Barcode 892432
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1                  WD/2R          .                    
       04/24/2003 06:15 PM         .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5  
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  Senator Smith moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         On page 6, line 10, through
15            page 7, line 12, delete those lines
16  
17  and insert:  
18         Section 5.  Subsection (1) of section 391.025, Florida
19  Statutes, is amended to read:
20         391.025  Applicability and scope.--
21         (1)  This act applies to health services provided to
22  eligible individuals who are:
23         (a)  Enrolled in the Medicaid program;
24         (b)  Enrolled in the Florida Kidcare program; and
25         (c)  Uninsured or underinsured, provided that they meet
26  the financial eligibility requirements established in this
27  act, and to the extent that resources are appropriated for
28  their care; and.
29         (d)  Infants who receive an award of compensation
30  pursuant to s. 766.31(1).
31         Section 6.  Paragraph (f) is added to subsection (2) of
                                  1
    6:59 PM   04/23/03                              s0250c2c-14e0a

SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 section 391.029, Florida Statutes, to read: 2 391.029 Program eligibility.-- 3 (2) The following individuals are financially eligible 4 for the program: 5 (f) An infant who receives an award of compensation 6 pursuant to s. 766.31(1), provided the Florida Birth-Related 7 Neurological Injury Compensation Association shall reimburse 8 the Children's Medical Services Network the state's share of 9 funding, which funding shall be used to obtain matching 10 federal funds under Title XXI of the Social Security Act. 11 12 The department may continue to serve certain children with 13 special health care needs who are 21 years of age or older and 14 who were receiving services from the program prior to April 1, 15 1998. Such children may be served by the department until 16 July 1, 2000. 17 Section 7. Section 766.304, Florida Statutes, is 18 amended to read: 19 766.304 Administrative law judge to determine 20 claims.--The administrative law judge shall hear and determine 21 all claims filed pursuant to ss. 766.301-766.316 and shall 22 exercise the full power and authority granted to her or him in 23 chapter 120, as necessary, to carry out the purposes of such 24 sections. The administrative law judge has exclusive 25 jurisdiction to determine whether a claim filed under this act 26 is compensable. No civil action may be brought until the 27 determinations under s. 766.309 have been made by the 28 administrative law judge. If the administrative law judge 29 determines that the claimant is entitled to compensation from 30 the association or if the claimant accepts an award issued 31 pursuant to s. 766.31, no civil action may be brought or 2 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 continued in violation of the exclusiveness of remedy 2 provisions of s. 766.303. If it is determined that a claim 3 filed under this act is not compensable, neither the doctrine 4 of collateral estoppel nor res judicata shall prohibit the 5 claimant from pursuing any and all civil remedies available 6 under common law and statutory law. The findings of fact and 7 conclusions of law of the administrative law judge shall not 8 be admissible in any subsequent proceeding; however, the sworn 9 testimony of any person and the exhibits introduced into 10 evidence in the administrative case are admissible as 11 impeachment in any subsequent civil action only against a 12 party to the administrative proceeding, subject to the Rules 13 of Evidence. An award action may not be awarded or paid 14 brought under ss. 766.301-766.316 if the claimant recovers 15 under a settlement or a final judgment is entered in a civil 16 action. The division may adopt rules to promote the efficient 17 administration of, and to minimize the cost associated with, 18 the prosecution of claims. 19 Section 8. Section 766.305, Florida Statutes, is 20 amended to read: 21 766.305 Filing of claims and responses; medical 22 disciplinary review.-- 23 (1) All claims filed for compensation under the plan 24 shall commence by the claimant filing with the division a 25 petition seeking compensation. Such petition shall include 26 the following information: 27 (a) The name and address of the legal representative 28 and the basis for her or his representation of the injured 29 infant. 30 (b) The name and address of the injured infant. 31 (c) The name and address of any physician providing 3 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 obstetrical services who was present at the birth and the name 2 and address of the hospital at which the birth occurred. 3 (d) A description of the disability for which the 4 claim is made. 5 (e) The time and place the injury occurred. 6 (f) A brief statement of the facts and circumstances 7 surrounding the injury and giving rise to the claim. 8 (g) All available relevant medical records relating to 9 the birth-related neurological injury, and an identification 10 of any unavailable records known to the claimant and the 11 reasons for their unavailability. 12 (h) Appropriate assessments, evaluations, and 13 prognoses, and such other records and documents as are 14 reasonably necessary for the determination of the amount of 15 compensation to be paid to, or on behalf of, the injured 16 infant on account of the birth-related neurological injury. 17 (i) Documentation of expenses and services incurred to 18 date, which indicates any payment made for such expenses and 19 services, and by whom. 20 (j) Documentation of any applicable private or 21 governmental source of services or reimbursement relative to 22 the impairments. 23 (2) The claimant shall furnish the division with as 24 many copies of the petition as required for service upon the 25 association, any physician and hospital named in the petition, 26 and the Division of Medical Quality Assurance, along with a 27 $15 filing fee payable to the Division of Administrative 28 Hearings. Upon receipt of the petition, the division shall 29 immediately serve the association, by service upon the agent 30 designated to accept service on behalf of the association, by 31 registered or certified mail, and shall mail copies of the 4 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 petition, by registered or certified mail, to any physician, 2 health care provider, and hospital named in the petition, and 3 furnish a copy by regular mail to the Di vision of Medical 4 Quality Assurance, and the Agency for Health Care 5 Administration. 6 (3) The claimant shall furnish to the executive 7 director of the Florida Birth-Related Neurological 8 Compensation Association one copy of the following information 9 which shall be filed with the association within 10 days after 10 the filing of the petition as set forth in s. 766.305(1): 11 (a) All available relevant medical records relating to 12 the birth-related neurological injury and an identification of 13 any unavailable records known to the claimant and the reasons 14 for their unavailability. 15 (b) Appropriate assessments, evaluations, and 16 prognoses and such other records and documents as are 17 reasonably necessary for the determination of the amount of 18 compensation to be paid to, or on behalf of, the injured 19 infant on account of the birth-related neurological injury. 20 (c) Documentation of expenses and services incurred to 21 date, which indicates any payment made for such expenses and 22 services and by whom. 23 (d) Documentation of any applicable private or 24 governmental source of services or reimbursement relative to 25 the impairments. 26 27 The information contained in paragraphs (a)-(d) is 28 confidential and exempt pursuant to the provisions of s. 29 766.315(5)(b). 30 (4)(3) The association shall have 45 days from the 31 date of service of a complete claim, filed pursuant to 5 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 subsections (1) and (2), in which to file a response to the 2 petition and to submit relevant written information relating 3 to the issue of whether the injury alleged is a birth-related 4 neurological injury. 5 (5)(4) Upon receipt of such petition, the Division of 6 Medical Quality Assurance shall review the information therein 7 and determine whether it involved conduct by a physician 8 licensed under chapter 458 or an osteopathic physician 9 licensed under chapter 459 that is subject to disciplinary 10 action, in which case the provisions of s. 456.073 shall 11 apply. 12 (6)(5) Upon receipt of such petition, the Agency for 13 Health Care Administration shall investigate the claim, and if 14 it determines that the injury resulted from, or was aggravated 15 by, a breach of duty on the part of a hospital in violation of 16 chapter 395, it shall take any such action consistent with its 17 disciplinary authority as may be appropriate. 18 (7)(6) Any claim which the association determines to 19 be compensable may be accepted for compensation, provided that 20 the acceptance is approved by the administrative law judge to 21 whom the claim for compensation is assigned. 22 Section 9. Subsection (4) is added to section 766.309, 23 Florida Statutes, to read: 24 766.309 Determination of claims; presumption; findings 25 of administrative law judge binding on participants.-- 26 (4) If it is in the interest of judicial economy or if 27 requested to by the claimant, the administrative law judge may 28 bifurcate the proceeding, addressing compensability and notice 29 pursuant to s. 766.316 first and addressing any award pursuant 30 to s. 766.31 in a separate proceeding. The administrative law 31 judge may issue a final order on compensability and notice 6 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 which is subject to appeal under s. 766.311, prior to issuance 2 of award pursuant to s. 766.31. 3 Section 10. Subsection (1) of section 766.31, Florida 4 Statutes, is amended to read: 5 766.31 Administrative law judge awards for 6 birth-related neurological injuries; notice of award.-- 7 (1) Upon determining that an infant has sustained a 8 birth-related neurological injury and that obstetrical 9 services were delivered by a participating physician at the 10 birth, the administrative law judge shall make an award 11 providing compensation for the following items relative to 12 such injury: 13 (a) Actual expenses for medically necessary and 14 reasonable medical and hospital, habilitative and training, 15 family residential or custodial care, professional 16 residential, and custodial care and service, for medically 17 necessary drugs, special equipment, and facilities, and for 18 related travel. However, such expenses shall not include: 19 1. Expenses for items or services that the infant has 20 received, or is entitled to receive, under the laws of any 21 state or the Federal Government, including Medicaid, except to 22 the extent such exclusion may be prohibited by federal law. 23 2. Expenses for items or services that the infant has 24 received, or is contractually entitled to receive, from any 25 prepaid health plan, health maintenance organization, or other 26 private insuring entity. 27 3. Expenses for which the infant has received 28 reimbursement, or for which the infant is entitled to receive 29 reimbursement, under the laws of any state or the Federal 30 Government, including Medicaid, except to the extent such 31 exclusion may be prohibited by federal law. 7 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 4. Expenses for which the infant has received 2 reimbursement, or for which the infant is contractually 3 entitled to receive reimbursement, pursuant to the provisions 4 of any health or sickness insurance policy or other private 5 insurance program. 6 7 Expenses included under this paragraph shall be limited to 8 reasonable charges prevailing in the same community for 9 similar treatment of injured persons when such treatment is 10 paid for by the injured person. 11 (b)1. Periodic payments of an award to the parents or 12 legal guardians of the infant found to have sustained a 13 birth-related neurological injury, which award shall not 14 exceed $100,000. However, at the discretion of the 15 administrative law judge, such award may be made in a lump 16 sum. 17 2. A death benefit for the infant in an amount of 18 $10,000 Payment for funeral expenses not to exceed $1,500. 19 (c) Reasonable expenses incurred in connection with 20 the filing of a claim under ss. 766.301-766.316, including 21 reasonable attorney's fees, which shall be subject to the 22 approval and award of the administrative law judge. In 23 determining an award for attorney's fees, the administrative 24 law judge shall consider the following factors: 25 1. The time and labor required, the novelty and 26 difficulty of the questions involved, and the skill requisite 27 to perform the legal services properly. 28 2. The fee customarily charged in the locality for 29 similar legal services. 30 3. The time limitations imposed by the claimant or the 31 circumstances. 8 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 4. The nature and length of the professional 2 relationship with the claimant. 3 5. The experience, reputation, and ability of the 4 lawyer or lawyers performing services. 5 6. The contingency or certainty of a fee. 6 7 The claimants shall not be liable for any attorney's fees 8 incurred in connection with the filing of a claim under ss. 9 766.301-766.316 other than those fees awarded under this 10 section. 11 Section 11. Subsection (4) of section 766.314, Florida 12 Statutes, is amended to read: 13 766.314 Assessments; plan of operation.-- 14 (4) The following persons and entities shall pay into 15 the association an initial assessment in accordance with the 16 plan of operation: 17 (a) On or before October 1, 1988, each hospital 18 licensed under chapter 395 shall pay an initial assessment of 19 $50 per infant delivered in the hospital during the prior 20 calendar year, as reported to the Agency for Health Care 21 Administration; provided, however, that a hospital owned or 22 operated by the state or a county, special taxing district, or 23 other political subdivision of the state shall not be required 24 to pay the initial assessment or any assessment required by 25 subsection (5). The term "infant delivered" includes live 26 births and not stillbirths, but the term does not include 27 infants delivered by employees or agents of the board of 28 trustees, Regents or those born in a teaching hospital as 29 defined in s. 408.07, or those born in a teaching hospital as 30 defined in s. 395.806 that have been deemed by the association 31 as being exempt from assessments since fiscal year 1997 to 9 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 fiscal year 2001. The initial assessment and any assessment 2 imposed pursuant to subsection (5) may not include any infant 3 born to a charity patient (as defined by rule of the Agency 4 for Health Care Administration) or born to a patient for whom 5 the hospital receives Medicaid reimbursement, if the sum of 6 the annual charges for charity patients plus the annual 7 Medicaid contractuals of the hospital exceeds 10 percent of 8 the total annual gross operating revenues of the hospital. 9 The hospital is responsible for documenting, to the 10 satisfaction of the association, the exclusion of any birth 11 from the computation of the assessment. Upon demonstration of 12 financial need by a hospital, the association may provide for 13 installment payments of assessments. 14 (b)1. On or before October 15, 1988, all physicians 15 licensed pursuant to chapter 458 or chapter 459 as of October 16 1, 1988, other than participating physicians, shall be 17 assessed an initial assessment of $250, which must be paid no 18 later than December 1, 1988. 19 2. Any such physician who becomes licensed after 20 September 30, 1988, and before January 1, 1989, shall pay into 21 the association an initial assessment of $250 upon licensure. 22 3. Any such physician who becomes licensed on or after 23 January 1, 1989, shall pay an initial assessment equal to the 24 most recent assessment made pursuant to this paragraph, 25 paragraph (5)(a), or paragraph (7)(b). 26 4. However, if the physician is a physician specified 27 in this subparagraph, the assessment is not applicable: 28 a. A resident physician, assistant resident physician, 29 or intern in an approved postgraduate training program, as 30 defined by the Board of Medicine or the Board of Osteopathic 31 Medicine by rule; 10 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 b. A retired physician who has withdrawn from the 2 practice of medicine but who maintains an active license as 3 evidenced by an affidavit filed with the Department of Health. 4 Prior to reentering the practice of medicine in this state, a 5 retired physician as herein defined must notify the Board of 6 Medicine or the Board of Osteopathic Medicine and pay the 7 appropriate assessments pursuant to this section; 8 c. A physician who holds a limited license pursuant to 9 s. 458.317 and who is not being compensated for medical 10 services; 11 d. A physician who is employed full time by the United 12 States Department of Veterans Affairs and whose practice is 13 confined to United States Department of Veterans Affairs 14 hospitals; or 15 e. A physician who is a member of the Armed Forces of 16 the United States and who meets the requirements of s. 17 456.024. 18 f. A physician who is employed full time by the State 19 of Florida and whose practice is confined to state-owned 20 correctional institutions, a county health department, or 21 state-owned mental health or developmental services 22 facilities, or who is employed full time by the Department of 23 Health. 24 (c) On or before December 1 of each year, beginning 25 January 1, 2003 1988, each physician licensed pursuant to 26 chapter 458 or chapter 459 who wishes to participate in the 27 Florida Birth-Related Neurological Injury Compensation Plan 28 and who otherwise qualifies as a participating physician under 29 ss. 766.301-766.316 shall pay an initial assessment of $5,000. 30 A physician shall be a participating physician for the entire 31 calendar year if such assessment is paid on or before January 11 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 31. However, if the physician is either a resident physician, 2 assistant resident physician, or intern in an approved 3 postgraduate training program, as defined by the Board of 4 Medicine or the Board of Osteopathic Medicine by rule, and is 5 supervised in accordance with program requirements established 6 by the Accreditation Council for Graduate Medical Education or 7 the American Osteopathic Association by a physician who is 8 participating in the plan, such resident physician, assistant 9 resident physician, or intern is deemed to be a participating 10 physician without the payment of the assessment. 11 Participating physicians also include any employee of the 12 board of trustees Regents who has paid the assessment required 13 by this paragraph and paragraph (5)(a), and any certified 14 nurse midwife supervised by such employee. Participating 15 physicians include any certified nurse midwife who has paid 50 16 percent of the physician assessment required by this paragraph 17 and paragraph (5)(a) and who is supervised by a participating 18 physician who has paid the assessment required by this 19 paragraph and paragraph (5)(a). Supervision for nurse midwives 20 shall require that the supervising physician will be easily 21 available and have a prearranged plan of treatment for 22 specified patient problems which the supervised certified 23 nurse midwife may carry out in the absence of any complicating 24 features. Any physician who elects to participate in such 25 plan on or after January 1, 1989, who was not a participating 26 physician at the time of such election to participate and who 27 otherwise qualifies as a participating physician under ss. 28 766.301-766.316 shall pay an additional initial assessment 29 equal to the most recent assessment made pursuant to this 30 paragraph, paragraph (5)(a), or paragraph (7)(b). 31 (d) Any hospital located in any county with a gross 12 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 population in excess of 1.1 million as of January 1, 2003, as 2 determined by the Agency for Health Care Administration, 3 pursuant to the Health Care Responsibility Act, may elect to 4 pay the fee for the participating physician and the certified 5 nurse midwife if the hospital first determines that the 6 primary motivating purpose for making such payment is to 7 ensure coverage for the hospital's patients under the 8 provisions of ss. 766.301-766.316, provided no hospital may 9 restrict any participating physician or nurse midwife, 10 directly or indirectly, from being on the staff of hospitals 11 other than the staff of the hospital making such payment. Each 12 hospital shall file with the association an affidavit setting 13 forth specifically the reasons why such hospital elected to 14 make such payment on behalf of each participating physician 15 and certified nurse midwife. The payments authorized pursuant 16 to this paragraph shall be in addition to the assessment set 17 forth in paragraph (5)(a). 18 19 (Redesignate subsequent sections.) 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 On page 1, line 21, after the semicolon, 25 26 insert: 27 amending s. 391.025, F.S.; including certain 28 infants as eligible individuals for certain 29 health services; amending s. 391.029, F.S.; 30 providing for financial eligibility under the 31 Children's Medical Services program for certain 13 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 infants; providing certain reimbursement and 2 funding requirements; amending s. 766.304, 3 F.S.; providing additional limitations on 4 certain civil actions; limiting certain awards 5 under certain circumstances; amending s. 6 766.305, F.S.; deleting certain information 7 required in a petition; revising certain 8 copying requirements; specifying information 9 required to be provided by a claimant; 10 specifying confidentiality of certain 11 information; amending s. 766.309, F.S.; 12 providing for bifurcating certain proceedings 13 under certain circumstances; providing 14 procedures; providing authority to an 15 administrative law judge for certain actions; 16 amending s. 766.31, F.S., relating to 17 administrative law judge awards for 18 birth-related neurological injuries; excluding 19 expenses for items or services received under 20 Medicaid; revising the amount of the death 21 benefit; limiting claimants' liability to 22 expenses awarded under this section; amending 23 s. 766.314, F.S.; redefining the term "infant 24 delivered" to exclude those delivered by 25 employees or agents of the board of trustees or 26 in certain hospitals; revising qualifications 27 for physician participation in the Florida 28 Birth-related Neurological Injury Compensation 29 Plan; providing for certain hospitals to pay 30 the fee for participation in the plan on behalf 31 of a participating physician or certified nurse 14 6:59 PM 04/23/03 s0250c2c-14e0a
SENATE AMENDMENT Bill No. CS for CS for SB 250 Amendment No. ___ Barcode 892432 1 midwife; providing restrictions on such a 2 hospital; requiring the hospital to file 3 certain information; 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 15 6:59 PM 04/23/03 s0250c2c-14e0a