Florida Senate - 2013 SB 1134 By Senator Hays 11-01059-13 20131134__ 1 A bill to be entitled 2 An act relating to compensation for personal injury or 3 wrongful death arising from a medical injury; amending 4 s. 456.013, F.S.; requiring the Department of Health 5 or certain boards thereof to require the completion of 6 a course relating to communication of medical errors; 7 providing a directive to the Division of Law Revision 8 and Information; creating s. 766.401, F.S.; providing 9 a short title; creating s. 766.402, F.S.; providing 10 definitions; creating s. 766.403, F.S.; providing 11 legislative findings and intent; specifying that 12 certain provisions are an exclusive remedy for 13 personal injury or wrongful death; providing for early 14 offer of settlement; creating s. 766.404, F.S.; 15 creating the Patient Compensation System; providing 16 for a board; providing for membership, meetings, and 17 certain compensation; providing for specific staff, 18 offices, committees, and panels and the powers and 19 duties thereof; prohibiting certain conflicts of 20 interest; authorizing rulemaking; creating s. 766.405, 21 F.S.; providing a process for filing applications; 22 providing for notice to providers and insurers; 23 providing an application filing period; creating s. 24 766.406, F.S.; providing for disposition, support, and 25 review of applications; providing for a determination 26 of compensation upon a prima facie claim of a medical 27 injury having been made; providing that compensation 28 for an application shall be offset by any past and 29 future collateral source payments; providing for 30 determinations of malpractice for purposes of a 31 specified constitutional provision; providing for 32 notice of applications determined to constitute a 33 medical injury for purposes of professional 34 discipline; providing for payment of compensation 35 awards; creating s. 766.407, F.S.; providing for 36 review of awards by an administrative law judge; 37 providing for appellate review; creating s. 766.408, 38 F.S.; requiring annual contributions from specified 39 providers to provide administrative expenses; 40 providing maximum contribution rates; specifying 41 payment dates; providing for disciplinary proceedings 42 for failure to pay; providing for deposit of funds; 43 authorizing providers to opt out of participation; 44 providing requirements for such an election; creating 45 s. 766.409, F.S.; requiring notice to patients of 46 provider participation in the Patient Compensation 47 System; creating s. 766.410, F.S.; requiring an annual 48 report to the Governor and Legislature; providing 49 retroactive application; providing severability; 50 providing an effective date. 51 52 Be It Enacted by the Legislature of the State of Florida: 53 54 Section 1. Subsection (7) of section 456.013, Florida 55 Statutes, is amended to read: 56 456.013 Department; general licensing provisions.— 57 (7) The boards, or the department when there is no board, 58 shall require the completion of a 2-hour course relating to 59 prevention and communication of medical errors as part of the 60 licensure and renewal process. The 2-hour course shall count 61 towards the total number of continuing education hours required 62 for the profession. The course shall be approved by the board or 63 department, as appropriate, and shall include a study of root 64 cause analysis, error reduction and prevention,
andpatient 65 safety, and communication of medical errors to patients and 66 their families. In addition, the course approved by the Board of 67 Medicine and the Board of Osteopathic Medicine shall include 68 information relating to the five most misdiagnosed conditions 69 during the previous biennium, as determined by the board. If the 70 course is being offered by a facility licensed pursuant to 71 chapter 395 for its employees, the board may approve up to 1 72 hour of the 2-hour course to be specifically related to error 73 reduction and prevention methods used in that facility. 74 Section 2. The Division of Law Revision and Information is 75 directed to designate sections 766.101 through 766.1185 of 76 chapter 766, Florida Statutes, as part I of that chapter, 77 entitled “Litigation Procedures”; sections 766.201 through 78 766.212 as part II of that chapter, entitled “Voluntary Binding 79 Arbitration”; sections 766.301 through 766.316 as part III of 80 that chapter, entitled “Birth-Related Neurological Injuries”; 81 and sections 766.401 through 766.410, as created by this act, as 82 part IV of that chapter, entitled “Patient Compensation System.” 83 Section 3. Section 766.401, Florida Statutes, is created to 84 read: 85 766.401 Short title.—This part may be cited as the “Patient 86 Injury Act.” 87 Section 4. Section 766.402, Florida Statutes, is created to 88 read: 89 766.402 Definitions.—As used in this part, the term: 90 (1) “Applicant” means a person who files an application 91 under this part requesting the investigation of an alleged 92 occurrence of a medical injury. 93 (2) “Application” means a request for investigation by the 94 Patient Compensation System of an alleged occurrence of a 95 medical injury. 96 (3) “Board” means the Patient Compensation Board as created 97 in s. 766.404. 98 (4) “Collateral source” means any payment made to the 99 applicant, or made on his or her behalf, by or pursuant to: 100 (a) The federal Social Security Act; any federal, state, or 101 local income disability act; or any other public program 102 providing medical expenses, disability payments, or other 103 similar benefits, except as prohibited by federal law. 104 (b) Any health, sickness, or income disability insurance; 105 any automobile accident insurance that provides health benefits 106 or income disability coverage; and any other similar insurance 107 benefits, except life insurance benefits available to the 108 applicant, whether purchased by the applicant or provided by 109 others. 110 (c) Any contract or agreement of any group, organization, 111 partnership, or corporation to provide, pay for, or reimburse 112 the costs of hospital, medical, dental, or other health care 113 services. 114 (d) Any contractual or voluntary wage continuation plan 115 provided by employers or by any other system intended to provide 116 wages during a period of disability. 117 (5) “Committee” means, as the context requires, the Medical 118 Review Committee or the Compensation Committee. 119 (6) “Compensation schedule” means a schedule of damages for 120 medical injuries. 121 (7) “Department” means the Department of Health. 122 (8) “Independent medical review panel” or “panel” means a 123 multidisciplinary panel convened by the chief medical officer to 124 review each application. 125 (9)(a) “Medical injury” means a personal injury or wrongful 126 death due to medical treatment, including a missed diagnosis, 127 which injury or death could have been avoided: 128 1. For care provided by an individual participating 129 provider, under the care of an experienced specialist provider 130 practicing in the same field of care under the same or similar 131 circumstances or, for a general practitioner provider, an 132 experienced general practitioner provider practicing under the 133 same or similar circumstances; or 134 2. For care provided by a participating provider in a 135 system of care, if such care is rendered within an optimal 136 system of care under the same or similar circumstances. 137 (b) A medical injury only includes consideration of an 138 alternate course of treatment if the injury or death could have 139 been avoided through a different but equally effective manner of 140 treatment for the underlying condition. In addition, a medical 141 injury only includes consideration of information that would 142 have been known to an experienced specialist or readily 143 available to an optimal system of care at the time of the 144 medical treatment. 145 (c) For purposes of this subsection, the term “medical 146 injury” does not include an injury or wrongful death caused by a 147 product defect in a drug or device as defined in s. 499.003. 148 (10) “Office” means, as the context requires, the Office of 149 Compensation, the Office of Medical Review, or the Office of 150 Quality Improvement. 151 (11) “Panelist” means a hospital administrator; a person 152 licensed under chapter 458, chapter 459, chapter 460, part I of 153 chapter 464, or chapter 466; or any other person involved in the 154 management of a health care facility deemed by the board to be 155 appropriate. 156 (12) “Participating provider” means a provider who, at the 157 time of the medical injury, had paid the contribution required 158 for participation in the Patient Compensation System for the 159 year in which the medical injury occurred. 160 (13) “Patient Compensation System” means the organization 161 created in s. 766.404. 162 (14) “Provider” means a birth center licensed under chapter 163 383; a facility licensed under chapter 390, chapter 395, or 164 chapter 400; a home health agency or nurse registry licensed 165 under part III of chapter 400; a health care services pool 166 registered under part IX of chapter 400; a person licensed under 167 s. 401.27, chapter 457, chapter 458, chapter 459, chapter 460, 168 chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, 169 chapter 466, chapter 467, part I, part II, part III, part IV, 170 part V, part X, part XIII, or part XIV of chapter 468, chapter 171 478, part III of chapter 483, or chapter 486; a clinical 172 laboratory licensed under part I of chapter 483; a multiphasic 173 health testing center licensed under part II of chapter 483; a 174 health maintenance organization certificated under part I of 175 chapter 641; a blood bank; a plasma center; an industrial 176 clinic; a renal dialysis facility; or a professional 177 association, partnership, corporation, joint venture, or other 178 association pertaining to the professional activity of health 179 care providers. 180 Section 5. Section 766.403, Florida Statutes, is created to 181 read: 182 766.403 Legislative findings and intent; exclusive remedy; 183 early offers.— 184 (1) LEGISLATIVE FINDINGS.—The Legislature finds that: 185 (a) The lack of legal representation, and, thus, 186 compensation, for the vast majority of patients with legitimate 187 injuries is creating an access to courts crisis. 188 (b) Seeking compensation through medical malpractice 189 litigation is a costly and protracted process, such that legal 190 counsel may only afford to finance a small number of legitimate 191 claims. 192 (c) Even for patients who are able to obtain legal 193 representation, the delay in obtaining compensation averages 5 194 years, creating a significant hardship for patients and their 195 caregivers who often need access to immediate care and 196 compensation. 197 (d) Because of continued exposure to liability, an 198 overwhelming majority of physicians practice defensive medicine 199 by ordering unnecessary tests and procedures, increasing the 200 cost of health care for individuals covered by public and 201 private health insurance coverage and exposing patients to 202 unnecessary clinical risks. 203 (e) A significant percentage of physicians retire from 204 practice as a result of the cost and risk of medical liability 205 in this state. 206 (f) Recruiting physicians to practice in this state and 207 ensuring that current physicians continue to practice in this 208 state is an overwhelming public necessity. 209 (2) LEGISLATIVE INTENT.—The Legislature intends: 210 (a) To create an alternative to medical malpractice 211 litigation whereby patients are fairly and expeditiously 212 compensated for avoidable medical injuries. As provided in this 213 part, this alternative is intended to significantly reduce the 214 practice of defensive medicine, thereby reducing health care 215 costs, increasing the number of physicians practicing in this 216 state, and providing patients fair and timely compensation 217 without the expense and delay of the court system. The 218 Legislature intends that this part apply to all health care 219 facilities and health care practitioners who are either insured 220 or self-insured against claims for medical malpractice. 221 (b) That an application filed under this part not 222 constitute a claim for medical malpractice, any action on such 223 an application not constitute a judgment or adjudication for 224 medical malpractice, and, therefore, professional liability 225 carriers not be obligated to report such applications or actions 226 on such applications to the National Practitioner Data Bank. 227 (c) That the definition of the term “medical injury” be 228 construed to encompass a broader range of personal injuries as 229 compared to a negligence standard, such that a greater number of 230 applications qualify for compensation under this part as 231 compared to claims filed under a negligence standard. 232 (d) That, because the Patient Compensation System has the 233 primary duty to determine the validity and compensation of each 234 application, an insurer not be subject to a statutory or common 235 law bad faith cause of action relating to an application filed 236 under this part. 237 (3) EXCLUSIVE REMEDY.—Except as provided in part III, the 238 rights and remedies granted by this part due to a personal 239 injury or wrongful death exclude all other rights and remedies 240 of the applicant and his or her personal representative, 241 parents, dependents, and next of kin, at common law or as 242 provided in general law, against any participating provider 243 directly involved in providing the medical treatment resulting 244 in such injury or death, arising out of or related to a medical 245 negligence claim, whether in tort or in contract, with respect 246 to such injury. Notwithstanding any other law, this part applies 247 exclusively to applications submitted under this part. An 248 applicant whose injury is excluded from coverage under this part 249 may file a claim for recovery of damages in accordance with part 250 I. 251 (4) EARLY OFFER.—This part does not prohibit a self-insured 252 provider or an insurer from providing an early offer of 253 settlement in satisfaction of a medical injury. A person who 254 accepts a settlement offer may not file an application under 255 this part for the same medical injury. In addition, if an 256 application has been filed before the offer of settlement, the 257 acceptance of the settlement offer by the applicant shall result 258 in the withdrawal of the application. 259 Section 6. Section 766.404, Florida Statutes, is created to 260 read: 261 766.404 Patient Compensation System; board; committees.— 262 (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation 263 System is created and shall be administratively housed within 264 the department. The Patient Compensation System is a separate 265 budget entity that shall be responsible for its administrative 266 functions and is not subject to control, supervision, or 267 direction by the department in any manner. The Patient 268 Compensation System shall administer this part. 269 (2) PATIENT COMPENSATION BOARD.—The Patient Compensation 270 Board is established to govern the Patient Compensation System. 271 (a) Members.—The board shall be composed of 11 members who 272 represent the medical, legal, patient, and business communities 273 from diverse geographic areas throughout the state. Members of 274 the board shall be appointed as follows: 275 1. Five members shall be appointed by, and serve at the 276 pleasure of, the Governor, one of whom shall be an allopathic or 277 osteopathic physician who actively practices in this state, one 278 of whom shall be an executive in the business community, one of 279 whom shall be a hospital administrator, one of whom shall be a 280 certified public accountant who actively practices in this 281 state, and one of whom shall be a member of The Florida Bar. 282 2. Three members shall be appointed by, and serve at the 283 pleasure of, the President of the Senate, one of whom shall be 284 an allopathic or osteopathic physician who actively practices in 285 this state and one of whom shall be a patient advocate. 286 3. Three members shall be appointed by, and serve at the 287 pleasure of, the Speaker of the House of Representatives, one of 288 whom shall be an allopathic or osteopathic physician who 289 actively practices in this state and one of whom shall be a 290 patient advocate. 291 (b) Terms of appointment.—Each member shall be appointed 292 for a 4-year term. For the purpose of providing staggered terms, 293 of the initial appointments, the five members appointed by the 294 Governor shall be appointed to 2-year terms and the remaining 295 six members shall be appointed to 3-year terms. If a vacancy 296 occurs on the board before the expiration of a term, the 297 original appointing authority shall appoint a successor to serve 298 the unexpired portion of the term. 299 (c) Chair and vice chair.—The board shall annually elect 300 from its membership one member to serve as chair of the board 301 and one member to serve as vice chair. 302 (d) Meetings.—The first meeting of the board shall be held 303 no later than August 1, 2013. Thereafter, the board shall meet 304 at least quarterly upon the call of the chair. A majority of the 305 board members constitutes a quorum. Meetings may be held by 306 teleconference, web conference, or other electronic means. 307 (e) Compensation.—Members of the board shall serve without 308 compensation but may be reimbursed for per diem and travel 309 expenses for required attendance at board meetings in accordance 310 with s. 112.061. 311 (f) Powers and duties of the board.—The board shall have 312 the following powers and duties: 313 1. Ensuring the operation of the Patient Compensation 314 System in accordance with applicable federal and state laws, 315 rules, and regulations. 316 2. Entering into contracts as necessary to administer this 317 part. 318 3. Employing an executive director and other staff as 319 necessary to perform the functions of the Patient Compensation 320 System, except that the Governor shall appoint the initial 321 executive director. 322 4. Approving the hiring of a chief compensation officer and 323 chief medical officer, as recommended by the executive director. 324 5. Approving a schedule of compensation for medical 325 injuries, as recommended by the Compensation Committee. 326 6. Approving medical review panelists as recommended by the 327 Medical Review Committee. 328 7. Approving an annual budget. 329 8. Annually approving provider contribution amounts. 330 (g) Powers and duties of staff.—The executive director 331 shall oversee the operation of the Patient Compensation System 332 in accordance with this part. The following staff shall report 333 directly to and serve at the pleasure of the executive director: 334 1. Advocacy director.—The advocacy director shall ensure 335 that each applicant is provided high-quality individual 336 assistance throughout the process, from initial filing to 337 disposition of the application. The advocacy director shall 338 assist each applicant in determining whether to retain an 339 attorney, which assistance shall include an explanation of 340 possible fee arrangements and the advantages and disadvantages 341 of retaining an attorney. If the applicant seeks to file an 342 application without an attorney, the advocacy director shall 343 assist the applicant in filing the application. In addition, the 344 advocacy director shall regularly provide status reports to the 345 applicant regarding his or her application. 346 2. Chief compensation officer.—The chief compensation 347 officer shall manage the Office of Compensation. The chief 348 compensation officer shall recommend to the Compensation 349 Committee a compensation schedule for each type of medical 350 injury. The chief compensation officer may not be a licensed 351 physician or an attorney. 352 3. Chief financial officer.—The chief financial officer 353 shall be responsible for overseeing the financial operations of 354 the Patient Compensation System, including the annual 355 development of a budget. 356 4. Chief legal officer.—The chief legal officer shall 357 represent the Patient Compensation System in all contested 358 applications, oversee the operation of the Patient Compensation 359 System to ensure compliance with established procedures, and 360 ensure adherence to all applicable federal and state laws, 361 rules, and regulations. 362 5. Chief medical officer.—The chief medical officer shall 363 be a physician licensed under chapter 458 or chapter 459 and 364 shall manage the Office of Medical Review. The chief medical 365 officer shall recommend to the Medical Review Committee a 366 qualified list of multidisciplinary panelists for independent 367 medical review panels. In addition, the chief medical officer 368 shall convene independent medical review panels as necessary to 369 review applications. 370 6. Chief quality officer.—The chief quality officer shall 371 manage the Office of Quality Improvement. 372 (3) OFFICES.—The following offices are established within 373 the Patient Compensation System: 374 (a) Office of Medical Review.—The Office of Medical Review 375 shall evaluate and, as necessary, investigate all applications 376 in accordance with this part. For the purpose of an 377 investigation of an application, the office shall have the power 378 to administer oaths, take depositions, issue subpoenas, compel 379 the attendance of witnesses and the production of papers, 380 documents, and other evidence, and obtain patient records 381 pursuant to the applicant’s release of protected health 382 information. 383 (b) Office of Compensation.—The Office of Compensation 384 shall allocate compensation for each application in accordance 385 with the compensation schedule. 386 (c) Office of Quality Improvement.—The Office of Quality 387 Improvement shall regularly review application data to conduct 388 root-cause analyses and develop and disseminate best practices 389 based on such reviews. In addition, the office shall capture and 390 record safety-related data obtained during an investigation 391 conducted by the Office of Medical Review, including the cause 392 of, the factors contributing to, and any interventions that may 393 have prevented the medical injury. 394 (4) COMMITTEES.—The board shall create a Medical Review 395 Committee and a Compensation Committee. The board may create 396 additional committees as necessary to assist in the performance 397 of its duties and responsibilities. 398 (a) Members.—Each committee shall be composed of three 399 board members chosen by a majority vote of the board. 400 1. The Medical Review Committee shall be composed of two 401 physicians and a board member who is not an attorney. The board 402 shall designate a physician committee member as chair of the 403 committee. 404 2. The Compensation Committee shall be composed of a 405 certified public accountant and two board members who are not 406 physicians or attorneys. The certified public accountant shall 407 serve as chair of the committee. 408 (b) Terms of appointment.—Members of each committee shall 409 serve 2-year terms concurrent with their respective terms as 410 board members. If a vacancy occurs on a committee, the board 411 shall appoint a successor to serve the unexpired portion of the 412 term. A committee member who is removed or resigns from the 413 board shall be removed from the committee. 414 (c) Chair and vice chair.—The board shall annually 415 designate a chair and vice chair of each committee. 416 (d) Meetings.—Each committee shall meet at least quarterly 417 or at the specific direction of the board. Meetings may be held 418 by teleconference, web conference, or other electronic means. 419 (e) Compensation.—Members of the committees shall serve 420 without compensation but may be reimbursed for per diem and 421 travel expenses for required attendance at committee meetings in 422 accordance with s. 112.061. 423 (f) Powers and duties.— 424 1. The Medical Review Committee shall recommend to the 425 board a comprehensive, multidisciplinary list of panelists who 426 shall serve on the independent medical review panels as needed. 427 2. The Compensation Committee shall, in consultation with 428 the chief compensation officer, recommend to the board: 429 a. A compensation schedule, formulated such that the 430 aggregate cost of medical malpractice and the aggregate of 431 provider contributions are equal to or less than the prior 432 fiscal year’s aggregate cost of medical malpractice. In 433 addition, damage payments for each injury shall be no less than 434 the average indemnity payment reported by the Physician Insurers 435 Association of America or its successor organization for similar 436 medical injuries with similar severity. Thereafter, the 437 committee shall annually review the compensation schedule and, 438 if necessary, recommend a revised schedule, such that a 439 projected increase in the upcoming fiscal year’s aggregate cost 440 of medical malpractice, including insured and self-insured 441 providers, does not exceed the percentage change from the prior 442 year in the medical care component of the Consumer Price Index 443 for All Urban Consumers. 444 b. Guidelines for the payment of compensation awards 445 through periodic payments. 446 c. Guidelines for the apportionment of compensation among 447 multiple providers, which guidelines shall be based on the 448 historical apportionment among multiple providers for similar 449 injuries with similar severity. 450 (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical 451 officer shall convene an independent medical review panel to 452 evaluate each application to determine whether a medical injury 453 occurred. Each panel shall be composed of an odd number of at 454 least three panelists chosen from the list of panelists 455 recommended by the Medical Review Committee and approved by the 456 board and shall convene upon the call of the chief medical 457 officer. Each panelist shall be paid a stipend as determined by 458 the board for his or her service on the panel. In order to 459 expedite the review of applications, the chief medical officer 460 may, whenever practicable, group related applications together 461 for consideration by a single panel. 462 (6) CONFLICTS OF INTEREST.—A board member, panelist, or 463 employee of the Patient Compensation System may not engage in 464 any conduct that constitutes a conflict of interest. For 465 purposes of this subsection, the term “conflict of interest” 466 means a situation in which the private interest of a board 467 member, panelist, or employee could influence his or her 468 judgment in the performance of his or her duties under this 469 part. A board member, panelist, or employee shall immediately 470 disclose in writing the presence of a conflict of interest when 471 the board member, panelist, or employee knows or should 472 reasonably have known that the factual circumstances surrounding 473 a particular application constitute or constituted a conflict of 474 interest. A board member, panelist, or employee who violates 475 this subsection is subject to disciplinary action as determined 476 by the board. A conflict of interest includes, but is not 477 limited to: 478 (a) Any conduct that would lead a reasonable person having 479 knowledge of all of the circumstances to conclude that a board 480 member, panelist, or employee is biased against or in favor of 481 an applicant. 482 (b) Participation in any application in which the board 483 member, panelist, or employee, or the parent, spouse, or child 484 of a board member, panelist, or employee, has a financial 485 interest. 486 (7) RULEMAKING.—The board shall adopt rules to implement 487 and administer this part, including rules addressing: 488 (a) The application process, including forms necessary to 489 collect relevant information from applicants. 490 (b) Disciplinary procedures for a board member, panelist, 491 or employee who violates the conflict of interest provisions of 492 this part. 493 (c) Stipends paid to panelists for their service on an 494 independent medical review panel, which stipends may be scaled 495 in accordance with the relative scarcity of the provider’s 496 specialty, if applicable. 497 (d) Payment of compensation awards through periodic 498 payments and the apportionment of compensation among multiple 499 providers, as recommended by the Compensation Committee. 500 (e) The opt-out process for providers who do not want to 501 participate in the Patient Compensation System. 502 Section 7. Section 766.405, Florida Statutes, is created to 503 read: 504 766.405 Filing of applications.— 505 (1) CONTENT.—In order to obtain compensation for a medical 506 injury, an applicant, or his or her legal representative, shall 507 file an application with the Patient Compensation System. The 508 application shall include the following: 509 (a) The name and address of the applicant or his or her 510 representative and the basis of the representation. 511 (b) The name and address of any participating provider who 512 provided medical treatment allegedly resulting in the medical 513 injury. 514 (c) A brief statement of the facts and circumstances 515 surrounding the medical injury that gave rise to the 516 application. 517 (d) An authorization for release to the Office of Medical 518 Review of all protected health information that is potentially 519 relevant to the application. 520 (e) Any other information that the applicant believes will 521 be beneficial to the investigatory process, including the names 522 of potential witnesses. 523 (f) Documentation of any applicable private or governmental 524 source of services or reimbursement relative to the medical 525 injury. 526 (2) INCOMPLETE APPLICATIONS.—If an application is not 527 complete, the Patient Compensation System shall, within 30 days 528 after the receipt of the initial application, notify the 529 applicant in writing of any errors or omissions. An applicant 530 shall have 30 days after receipt of the notice in which to 531 correct the errors or omissions in the initial application. 532 (3) TIME LIMITATION ON APPLICATIONS.—An application shall 533 be filed within the time periods specified in s. 95.11(4) for 534 medical malpractice actions. 535 (4) SUPPLEMENTAL INFORMATION.—After the filing of an 536 application, the applicant may supplement the initial 537 application with additional information that the applicant 538 believes may be beneficial in the resolution of the application. 539 (5) LEGAL COUNSEL.—This part does not prohibit an applicant 540 or participating provider from retaining an attorney to 541 represent the applicant or participating provider in the review 542 and resolution of an application. 543 Section 8. Section 766.406, Florida Statutes, is created to 544 read: 545 766.406 Disposition of applications.— 546 (1) INITIAL MEDICAL REVIEW.—Individuals with relevant 547 clinical expertise in the Office of Medical Review shall, within 548 10 days after the receipt of a completed application, determine 549 whether the application, prima facie, constitutes a medical 550 injury. 551 (a) If the Office of Medical Review determines that the 552 application, prima facie, constitutes a medical injury, the 553 office shall immediately notify, by registered or certified 554 mail, each participating provider named in the application and, 555 for participating providers that are not self-insured, the 556 insurer that provides coverage for the provider. The 557 notification shall inform the participating provider that he or 558 she may support the application to expedite the processing of 559 the application. A participating provider shall have 15 days 560 after the receipt of notification of an application to support 561 the application. If the participating provider supports the 562 application, the Office of Medical Review shall review the 563 application in accordance with subsection (2). 564 (b) If the Office of Medical Review determines that the 565 application does not, prima facie, constitute a medical injury, 566 the office shall send a rejection letter to the applicant by 567 registered or certified mail informing the applicant of his or 568 her right of appeal. The applicant shall have 15 days after the 569 receipt of the letter in which to appeal the determination of 570 the office pursuant to s. 766.407. 571 (2) EXPEDITED MEDICAL REVIEW.—An application that is 572 supported by a participating provider in accordance with 573 subsection (1) shall be reviewed by individuals with relevant 574 clinical expertise in the Office of Medical Review within 30 575 days after notification of the participating provider’s support 576 of the application to determine the validity of the application. 577 If the Office of Medical Review finds that the application is 578 valid, the Office of Compensation shall determine an award of 579 compensation in accordance with subsection (4). If the Office of 580 Medical Review finds that the application is not valid, the 581 office shall immediately notify the applicant of the rejection 582 of the application and, in the case of fraud, shall immediately 583 notify relevant law enforcement authorities. 584 (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review 585 determines that the application, prima facie, constitutes a 586 medical injury and the participating provider does not elect to 587 support the application, the office shall complete a thorough 588 investigation of the application within 60 days after the 589 determination by the office. The investigation shall be 590 conducted by a multidisciplinary team with relevant clinical 591 expertise and shall include a thorough investigation of all 592 available documentation, witnesses, and other information. 593 Within 15 days after the completion of the investigation, the 594 chief medical officer shall allow the applicant and the 595 participating provider to access records, statements, and other 596 information obtained in the course of its investigation, in 597 accordance with relevant state and federal laws. Within 30 days 598 after the completion of the investigation, the chief medical 599 officer shall convene an independent medical review panel to 600 determine whether the application constitutes a medical injury. 601 The independent medical review panel shall have access to all 602 redacted information obtained by the office in the course of its 603 investigation of the application and shall make a written 604 determination within 10 days after the convening of the panel, 605 which written determination shall be immediately provided to the 606 applicant and the participating provider. The standard of review 607 shall be a preponderance of the evidence. 608 (a) If the independent medical review panel determines that 609 the application constitutes a medical injury, the Office of 610 Medical Review shall immediately notify the participating 611 provider by registered or certified mail of the right to appeal 612 the determination of the panel. The participating provider shall 613 have 15 days after the receipt of the letter in which to appeal 614 the determination of the panel pursuant to s. 766.407. 615 (b) If the independent medical review panel determines that 616 the application does not constitute a medical injury, the Office 617 of Medical Review shall immediately notify the applicant by 618 registered or certified mail of the right to appeal the 619 determination of the panel. The applicant shall have 15 days 620 after the receipt of the letter to appeal the determination of 621 the panel pursuant to s. 766.407. 622 (4) COMPENSATION REVIEW.—If an independent medical review 623 panel finds that an application constitutes a medical injury 624 under subsection (3) and all appeals of that finding have been 625 exhausted by the participating provider pursuant to s. 766.407, 626 the Office of Compensation shall, within 30 days after either 627 the finding of the panel or the exhaustion of all appeals of 628 that finding, whichever occurs later, make a written 629 determination of an award of compensation in accordance with the 630 compensation schedule and the findings of the panel. The office 631 shall notify the applicant and the participating provider by 632 registered or certified mail of the amount of compensation and 633 shall also explain to the applicant the process to appeal the 634 determination of the office. The applicant shall have 15 days 635 after the receipt of the letter to appeal the determination of 636 the office pursuant to s. 766.407. 637 (5) LIMITATION ON COMPENSATION.—Compensation for each 638 application shall be offset by any past and future collateral 639 source payments. In addition, compensation may be paid by 640 periodic payments as determined by the Office of Compensation in 641 accordance with rules adopted by the board. 642 (6) PAYMENT OF COMPENSATION.—Within 14 days after either 643 the acceptance of compensation by the applicant or the 644 conclusion of all appeals pursuant to s. 766.407, the 645 participating provider, or for a participating provider who has 646 insurance coverage, the insurer, shall remit the compensation 647 award to the Patient Compensation System, which shall 648 immediately provide compensation to the applicant in accordance 649 with the final compensation award. Beginning 45 days after the 650 acceptance of compensation by the applicant or the conclusion of 651 all appeals pursuant to s. 766.407, whichever occurs later, an 652 unpaid award shall begin to accrue interest at the rate of 18 653 percent per year. 654 (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of 655 s. 26, Art. X of the State Constitution, a physician who is the 656 subject of an application under this part must be found to have 657 committed medical malpractice only upon a specific finding of 658 the Board of Medicine or Board of Osteopathic Medicine, as 659 applicable, in accordance with s. 456.50. 660 (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation 661 System shall provide the department with electronic access to 662 applications for which a medical injury was determined to exist, 663 related to persons licensed under chapter 458, chapter 459, 664 chapter 460, part I of chapter 464, or chapter 466, where the 665 provider represents an imminent risk of harm to the public. The 666 department shall review such applications to determine whether 667 any of the incidents that resulted in the application 668 potentially involved conduct by the licensee that is subject to 669 disciplinary action, in which case s. 456.073 applies. 670 Section 9. Section 766.407, Florida Statutes, is created to 671 read: 672 766.407 Review by administrative law judge; appellate 673 review; extensions of time.— 674 (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative 675 law judge shall hear and determine appeals filed pursuant to s. 676 766.406 and shall exercise the full power and authority granted 677 to him or her in chapter 120, as necessary, to carry out the 678 purposes of that section. The administrative law judge shall be 679 limited in his or her review to determining whether the Office 680 of Medical Review, the independent medical review panel, or the 681 Office of Compensation, as appropriate, has faithfully followed 682 the requirements of this part and rules adopted thereunder in 683 reviewing applications. If the administrative law judge 684 determines that such requirements were not followed in reviewing 685 an application, he or she shall require the chief medical 686 officer to either reconvene the original panel or convene a new 687 panel, or require the Office of Compensation to redetermine the 688 compensation amount, in accordance with the determination of the 689 judge. 690 (2) APPELLATE REVIEW.—A determination by an administrative 691 law judge under this section regarding the award or denial of 692 compensation under this part shall be conclusive and binding as 693 to all questions of fact and shall be provided to the applicant 694 and the participating provider. An applicant may appeal the 695 award or denial of compensation to the district court of appeal. 696 Appeals shall be filed in accordance with rules of procedure 697 adopted by the Supreme Court for review of such orders. 698 (3) EXTENSIONS OF TIME.—Upon a written petition by either 699 the applicant or the participating provider, an administrative 700 law judge may grant, for good cause, an extension of any of the 701 time periods specified in this part. 702 Section 10. Section 766.408, Florida Statutes, is created 703 to read: 704 766.408 Expenses of administration; opt out.— 705 (1) The board shall annually determine a contribution that 706 shall be paid by each provider, unless the provider opts out of 707 participation in the Patient Compensation System pursuant to 708 subsection (6). The contribution amount shall be determined by 709 January 1 of each year and shall be based on the anticipated 710 expenses of the administration of this part for the next state 711 fiscal year. 712 (2) The contribution rate may not exceed the following 713 amounts: 714 (a) For an individual licensed under s. 401.27, a 715 chiropractic assistant licensed under chapter 460, or an 716 individual licensed under chapter 461, chapter 462, chapter 463, 717 chapter 464 with the exception of a certified registered nurse 718 anesthetist, chapter 465, chapter 466, chapter 467, part I, part 719 II, part III, part IV, part V, part X, part XIII, or part XIV of 720 chapter 468, chapter 478, part III of chapter 483, or chapter 721 486, $100 per licensee. 722 (b) For an anesthesiology assistant or physician assistant 723 licensed under chapter 458 or chapter 459 or a certified 724 registered nurse anesthetist certified under part I of chapter 725 464, $250 per licensee. 726 (c) For a physician licensed under chapter 458, chapter 727 459, or chapter 460, $600 per licensee. The contribution for the 728 initial fiscal year shall be $500 per licensee. 729 (d) For a facility licensed under part II of chapter 400, 730 $100 per bed. 731 (e) For a facility licensed under chapter 395, $200 per 732 bed. The contribution for the initial fiscal year shall be $100 733 per bed. 734 (f) For any other provider not otherwise described in this 735 subsection, $2,500 per registrant or licensee. 736 (3) The contribution determined under this section shall be 737 payable by each participating provider upon notice delivered on 738 or after July 1 of the next state fiscal year. Each 739 participating provider shall pay the contribution amount within 740 30 days after the date the notice is delivered to the provider. 741 If a provider fails to pay the contribution determined under 742 this section within 30 days after such notice, the board shall 743 notify the provider by certified or registered mail that the 744 provider’s license shall be subject to revocation if the 745 contribution is not paid within 60 days after the date of the 746 original notice. 747 (4) A provider that has not opted out of participation 748 pursuant to subsection (6) who fails to pay the contribution 749 amount determined under this section within 60 days after 750 receipt of the original notice shall be subject to a licensure 751 revocation action by the department, the Agency for Health Care 752 Administration, or the relevant regulatory board, as applicable. 753 (5) All amounts collected under this section shall be paid 754 into the Patient Compensation Trust Fund established in s. 755 766.4105. 756 (6) A provider may elect to opt out of participation in the 757 Patient Compensation System. The election to opt out must be 758 made in writing no later than 15 days before the due date of the 759 contribution required under this section. A provider who opts 760 out may subsequently elect to participate by paying the 761 appropriate contribution amount for the current fiscal year. 762 Section 11. Section 766.409, Florida Statutes, is created 763 to read: 764 766.409 Notice to patients of participation in the Patient 765 Compensation System.— 766 (1) Each participating provider shall provide notice to 767 patients that the provider is participating in the Patient 768 Compensation System. Such notice shall be provided on a form 769 furnished by the Patient Compensation System and shall include a 770 concise explanation of a patient’s rights and benefits under the 771 system. 772 (2) Notice is not required to be given to a patient when 773 the patient has an emergency medical condition as defined in s. 774 395.002(8)(b) or when notice is not practicable. 775 Section 12. Section 766.410, Florida Statutes, is created 776 to read: 777 766.410 Annual report.—The board shall annually, by October 778 1, submit to the Governor, the President of the Senate, and the 779 Speaker of the House of Representatives a report that describes 780 the filing and disposition of applications in the preceding 781 fiscal year. The report shall include, in the aggregate, the 782 number of applications, the disposition of such applications, 783 and the compensation awarded. 784 Section 13. This act applies to medical incidents for which 785 a notice of intent to initiate litigation has not been mailed 786 before July 1, 2013. 787 Section 14. If any provision of this act or its application 788 to any person or circumstance is held invalid, the invalidity 789 does not affect other provisions or applications of the act 790 which may be given effect without the invalid provision or 791 application, and to this end the provisions of this act are 792 severable. 793 Section 15. This act shall take effect July 1, 2013.