Florida Senate - 2014                                    SB 1362
       
       
        
       By Senator Grimsley
       
       
       
       
       
       21-00475A-14                                          20141362__
    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         as part of the licensure and renewal process;
    8         providing a directive to the Division of Law Revision
    9         and Information; creating s. 766.401, F.S.; providing
   10         a short title; creating s. 766.402, F.S.; providing
   11         definitions; creating s. 766.403, F.S.; providing
   12         legislative findings and intent; specifying that
   13         certain provisions are an exclusive remedy for
   14         personal injury or wrongful death; providing for early
   15         offer of settlement; prohibiting compensation for
   16         certain persons that file an application for wrongful
   17         death; creating s. 766.404, F.S.; creating the Patient
   18         Compensation System; creating a board; specifying the
   19         membership, meetings, and certain compensation of the
   20         board; specifying staff, offices, committees, and
   21         panels and the powers and duties thereof; prohibiting
   22         certain conflicts of interest; authorizing rulemaking;
   23         creating s. 766.405, F.S.; establishing an application
   24         process; providing for notice to providers and
   25         insurers; requiring applications be filed within a
   26         certain time period; creating s. 766.406, F.S.;
   27         providing for disposition, support, and review of
   28         applications; providing for a determination of
   29         compensation upon a prima facie claim of a medical
   30         injury having been made; requiring that compensation
   31         for an application be offset by any past and future
   32         collateral source payments; providing for
   33         determinations of malpractice for purposes of a
   34         specified constitutional provision; providing for
   35         notice of applications determined to constitute a
   36         medical injury for purposes of professional
   37         discipline; providing for payment of compensation
   38         awards; creating s. 766.407, F.S.; providing for
   39         review of awards by an administrative law judge;
   40         creating s. 766.408, F.S.; requiring annual
   41         contributions from specified providers to provide
   42         administrative expenses; providing maximum
   43         contribution rates; specifying payment dates;
   44         providing for disciplinary proceedings for failure to
   45         pay; providing for deposit of funds; authorizing
   46         providers to opt out of participation; providing
   47         requirements for such an election; creating s.
   48         766.409, F.S.; requiring notice to patients of
   49         provider participation in the Patient Compensation
   50         System; creating s. 766.410, F.S.; requiring an annual
   51         report to the Governor and the Legislature; providing
   52         for retroactive applicability; providing severability;
   53         providing effective dates.
   54          
   55  Be It Enacted by the Legislature of the State of Florida:
   56  
   57         Section 1. Subsection (7) of section 456.013, Florida
   58  Statutes, is amended to read:
   59         456.013 Department; general licensing provisions.—
   60         (7) The boards, or the department when there is no board,
   61  shall require the completion of a 2-hour course relating to
   62  prevention and communication of medical errors as part of the
   63  licensure and renewal process. The 2-hour course shall count
   64  towards the total number of continuing education hours required
   65  for the profession. The course shall be approved by the board or
   66  department, as appropriate, and shall include a study of root
   67  cause analysis, error reduction and prevention, and patient
   68  safety, and communication of medical errors to patients and
   69  their families. In addition, the course approved by the Board of
   70  Medicine and the Board of Osteopathic Medicine shall include
   71  information relating to the five most misdiagnosed conditions
   72  during the previous biennium, as determined by the board. If the
   73  course is being offered by a facility licensed pursuant to
   74  chapter 395 for its employees, the board may approve up to 1
   75  hour of the 2-hour course to be specifically related to error
   76  reduction and prevention methods used in that facility.
   77         Section 2. The Division of Law Revision and Information is
   78  directed to designate ss. 766.101-766.1185, Florida Statutes, as
   79  part I of chapter 766, Florida Statutes, entitled “Medical
   80  Malpractice and Related Matters”; ss. 766.201-766.212, Florida
   81  Statutes, as part II of that chapter, entitled “Voluntary
   82  Binding Arbitration”; ss. 766.301-766.316, Florida Statutes, as
   83  part III of that chapter, entitled “Birth-Related Neurological
   84  Injuries”; and ss. 766.401-766.410, Florida Statutes, as created
   85  by this act, as part IV of that chapter, entitled “Patient
   86  Compensation System.”
   87         Section 3. Section 766.401, Florida Statutes, is created to
   88  read:
   89         766.401 Short title.—This part may be cited as the “Patient
   90  Injury Act.”
   91         Section 4. Section 766.402, Florida Statutes, is created to
   92  read:
   93         766.402 Definitions.—As used in this part, the term:
   94         (1) “Applicant” means a person who files an application
   95  under this part requesting the investigation of an alleged
   96  occurrence of a medical injury.
   97         (2) “Application” means a request for investigation by the
   98  Patient Compensation System of an alleged occurrence of a
   99  medical injury.
  100         (3) “Board” means the Patient Compensation Board as created
  101  in s. 766.404.
  102         (4) “Collateral source” means any payment made to the
  103  applicant, or made on his or her behalf, by or pursuant to:
  104         (a) The federal Social Security Act; any federal, state, or
  105  local income disability act; or any other public program
  106  providing medical expenses, disability payments, or other
  107  similar benefits, except as prohibited by federal law.
  108         (b) Any health, sickness, or income disability insurance;
  109  any automobile accident insurance that provides health benefits
  110  or income disability coverage; and any other similar insurance
  111  benefits, except life insurance benefits available to the
  112  applicant, whether purchased by the applicant or provided by
  113  others.
  114         (c) Any contract or agreement of any group, organization,
  115  partnership, or corporation to provide, pay for, or reimburse
  116  the costs of hospital, medical, dental, or other health care
  117  services.
  118         (d) Any contractual or voluntary wage continuation plan
  119  provided by employers or by any other system intended to provide
  120  wages during a period of disability.
  121         (5) “Committee” means, as the context requires, the Medical
  122  Review Committee or the Compensation Committee.
  123         (6) “Compensation schedule” means a schedule of damages for
  124  medical injuries.
  125         (7) “Department” means the Department of Health.
  126         (8) “Independent medical review panel” or “panel” means a
  127  multidisciplinary panel convened by the chief medical officer to
  128  review each application.
  129         (9)(a) “Medical injury” means a personal injury or wrongful
  130  death due to medical treatment, including a missed diagnosis,
  131  which injury or death could have been avoided for care provided
  132  by:
  133         1. An individual participating provider, under the care of
  134  an experienced specialist provider practicing in the same field
  135  of care under the same or similar circumstances or, for a
  136  general practitioner provider, an experienced general
  137  practitioner provider practicing under the same or similar
  138  circumstances; or
  139         2. A participating provider in a system of care, if such
  140  care is rendered within an optimal system of care under the same
  141  or similar circumstances.
  142         (b) A medical injury only includes consideration of an
  143  alternate course of treatment if the injury or death could have
  144  been avoided through a different but equally effective manner of
  145  treatment for the underlying condition. In addition, a medical
  146  injury only includes consideration of information that would
  147  have been known to an experienced specialist or readily
  148  available to an optimal system of care at the time of the
  149  medical treatment.
  150         (c) For purposes of this subsection, the term “medical
  151  injury” does not include an injury or wrongful death if the
  152  medical treatment conformed with national practice standards for
  153  the care and treatment of patients as determined by the
  154  independent medical review panel.
  155         (10) “Office” means, as the context requires, the Office of
  156  Compensation, the Office of Medical Review, or the Office of
  157  Quality Improvement.
  158         (11) “Panelist” means an individual listed under the
  159  definition of a provider.
  160         (12) “Participating provider” means a provider who, at the
  161  time of the medical injury, had paid the contribution required
  162  for participation in the Patient Compensation System for the
  163  year in which the medical injury occurred.
  164         (13) “Patient Compensation System” means the organization
  165  created in s. 766.404.
  166         (14) “Provider” means a birth center licensed under chapter
  167  383; a facility licensed under chapter 390, chapter 395, or
  168  chapter 400; a home health agency or nurse registry licensed
  169  under part III of chapter 400; a health care services pool
  170  registered under part IX of chapter 400; a person licensed under
  171  s. 401.27, chapter 457, chapter 458, chapter 459, chapter 460,
  172  chapter 461, chapter 462, chapter 463, chapter 464, chapter 465,
  173  chapter 466, chapter 467, part I, part II, part III, part IV,
  174  part V, part X, part XIII, or part XIV of chapter 468, chapter
  175  478, part III of chapter 483, or chapter 486; a clinical
  176  laboratory licensed under part I of chapter 483; a multiphasic
  177  health testing center licensed under part II of chapter 483; a
  178  health maintenance organization certificated under part I of
  179  chapter 641; a blood bank; a plasma center; an industrial
  180  clinic; a renal dialysis facility; or a professional association
  181  partnership, corporation, joint venture, or other association
  182  pertaining to the professional activity of health care
  183  providers.
  184         Section 5. Effective July 1, 2015, section 766.403, Florida
  185  Statutes, is created to read:
  186         766.403 Legislative findings and intent; exclusive remedy;
  187  early offers; wrongful death.—
  188         (1) LEGISLATIVE FINDINGS.—The Legislature finds that:
  189         (a) The lack of legal representation, and, thus,
  190  compensation, for the majority of patients with legitimate
  191  medical injuries is creating an access-to-courts crisis.
  192         (b) Seeking compensation through medical malpractice
  193  litigation is a costly and protracted process, such that legal
  194  counsel may only afford to finance a small number of legitimate
  195  claims.
  196         (c) Even for patients who are able to obtain legal
  197  representation, the delay in obtaining compensation averages 5
  198  years, creating a significant hardship for patients and their
  199  caregivers who often need access to immediate care and
  200  compensation.
  201         (d) Because of continued exposure to liability, an
  202  overwhelming majority of physicians practice defensive medicine
  203  by ordering unnecessary tests and procedures, increasing the
  204  cost of health care for individuals covered by public and
  205  private health insurance coverage and exposing patients to
  206  unnecessary clinical risks.
  207         (e) A significant number of physicians intend to
  208  discontinue providing services in this state as a result of the
  209  cost and risk of medical liability, particularly obstetricians.
  210         (f) Recruiting physicians to practice in this state and
  211  ensuring that current physicians continue to practice in this
  212  state is an overwhelming public necessity.
  213         (2) LEGISLATIVE INTENT.—The Legislature intends:
  214         (a) To supersede medical malpractice litigation by creating
  215  a new remedy whereby patients are fairly and expeditiously
  216  compensated for medical injuries. As provided in this part, this
  217  alternative is intended to significantly reduce the practice of
  218  defensive medicine, thereby reducing health care costs; increase
  219  patient safety; increase the number of physicians practicing in
  220  this state, and provide patients fair and timely compensation
  221  without the expense and delay of the court system. The
  222  Legislature intends that this part apply to all health care
  223  facilities and health care providers who are either insured or
  224  self-insured against claims for medical malpractice.
  225         (b) That an application filed under this part not
  226  constitute a claim for medical malpractice, any action on such
  227  an application not constitute a judgment or adjudication for
  228  medical malpractice, and, therefore, professional liability
  229  carriers not be obligated to report such applications or actions
  230  on such applications to the National Practitioner Data Bank.
  231         (c) That the definition of the term “medical injury” be
  232  construed to encompass a broader range of personal injuries as
  233  compared to a negligence standard, such that a greater number of
  234  applications qualify for compensation under this part as
  235  compared to claims filed under a negligence standard.
  236         (d) That, because the Patient Compensation System has the
  237  primary duty to determine the validity and compensation of each
  238  application, an insurer not be subject to a statutory or common
  239  law bad faith cause of action relating to an application filed
  240  under this part.
  241         (3) EXCLUSIVE REMEDY.—Except as provided in part III, the
  242  rights and remedies granted by this part due to a personal
  243  injury or wrongful death exclude all other rights and remedies
  244  of the applicant and his or her personal representative,
  245  parents, dependents, and next of kin, at common law or as
  246  provided in general law, against any participating provider
  247  directly involved in providing the medical treatment resulting
  248  in such injury or death, arising out of or related to a medical
  249  negligence claim, whether in tort or in contract, with respect
  250  to such injury. Notwithstanding any other law, this part applies
  251  exclusively to applications submitted under this part.
  252         (4) EARLY OFFER.—This part does not prohibit a self-insured
  253  provider or an insurer from providing an early offer of
  254  settlement or apology in satisfaction of a medical injury. A
  255  person who accepts a settlement or apology offer may not file an
  256  application under this part for the same medical injury. In
  257  addition, if an application has been filed before the offer of
  258  settlement, the acceptance of the settlement offer by the
  259  applicant shall result in the withdrawal of the application.
  260         (5) WRONGFUL DEATH.—Compensation shall not be provided
  261  under this part for an application that requests an
  262  investigation of an alleged wrongful death due to medical
  263  treatment if such application is filed by an adult child on
  264  behalf of his or her parent or by a parent on behalf of his or
  265  her adult child.
  266         Section 6. Section 766.404, Florida Statutes, is created to
  267  read:
  268         766.404 Patient Compensation System; board; committees.—
  269         (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation
  270  System is created and shall be administratively housed within
  271  the department. The Patient Compensation System is a separate
  272  budget entity that shall be responsible for its administrative
  273  functions and is not subject to control, supervision, or
  274  direction by the department in any manner. The Patient
  275  Compensation System shall administer this part.
  276         (2) PATIENT COMPENSATION BOARD.—The Patient Compensation
  277  Board is a board of trustees as defined in s. 20.03 and is
  278  established to govern the Patient Compensation System. The board
  279  shall comply with the requirements of s. 20.052, except as
  280  provided in this subsection.
  281         (a) Members.—The board shall be composed of 11 members who
  282  represent the medical, legal, patient, and business communities
  283  from diverse geographic areas throughout the state. Members of
  284  the board shall serve at the pleasure of the Governor and shall
  285  be appointed by the Governor as follows:
  286         1. Five members shall be appointed by the Governor, one of
  287  whom shall be an allopathic or osteopathic physician who
  288  actively practices in this state, one of whom shall be an
  289  executive in the business community who works in this state, one
  290  of whom shall be a hospital administrator who works in this
  291  state, one of whom shall be a certified public accountant who
  292  actively practices in this state, and one of whom shall be a
  293  member of The Florida Bar who actively practices in this state.
  294         2. Three of the members shall be persons who have been
  295  selected by the Governor from a list of persons who were
  296  recommended by the President of the Senate, one of whom shall be
  297  an allopathic or osteopathic physician who actively practices in
  298  this state and one of whom shall be a patient advocate who
  299  resides in this state.
  300         3. Three of the members shall be persons who have been
  301  selected by the Governor from a list of persons who were
  302  recommended by the Speaker of the House of Representatives, one
  303  of whom shall be an allopathic or osteopathic physician who
  304  actively practices in this state and one of whom shall be a
  305  patient advocate who resides in this state.
  306         (b) Terms of appointment.—Each member shall be appointed
  307  for a 4-year term. For the purpose of providing staggered terms,
  308  of the initial appointments, the five members appointed by the
  309  Governor shall be appointed to 2-year terms and the remaining
  310  six members shall be appointed to 3-year terms. If a vacancy
  311  occurs on the board before the expiration of a term, the
  312  Governor shall appoint a successor to serve the remainder of the
  313  term.
  314         (c) Chair and vice chair.—The board shall annually elect
  315  from its membership one member to serve as chair of the board
  316  and one member to serve as vice chair.
  317         (d) Meetings.—The first meeting of the board shall be held
  318  no later than August 1, 2014. Thereafter, the board shall meet
  319  at least quarterly upon the call of the chair. A majority of the
  320  board members constitutes a quorum. Meetings may be held by
  321  teleconference, web conference, or other electronic means.
  322         (e) Compensation.—Members of the board shall serve without
  323  compensation but may be reimbursed for per diem and travel
  324  expenses for required attendance at board meetings in accordance
  325  with s. 112.061.
  326         (f) Powers and duties of the board.—The board shall have
  327  the following powers and duties:
  328         1. Ensuring the operation of the Patient Compensation
  329  System in accordance with applicable federal and state laws,
  330  rules, and regulations.
  331         2. Entering into contracts as necessary to administer this
  332  part.
  333         3. Employing an executive director and other staff as
  334  necessary to perform the functions of the Patient Compensation
  335  System, except that the Governor shall appoint the initial
  336  executive director.
  337         4. Approving the hiring of a chief compensation officer and
  338  chief medical officer, as recommended by the executive director.
  339         5. Approving a schedule of compensation for medical
  340  injuries, as recommended by the Compensation Committee.
  341         6. Approving medical review panelists as recommended by the
  342  Medical Review Committee.
  343         7. Approving an annual budget.
  344         8. Annually approving provider contribution amounts.
  345         (g) Powers and duties of staff.—The executive director
  346  shall oversee the operation of the Patient Compensation System
  347  in accordance with this part. The following staff shall report
  348  directly to and serve at the pleasure of the executive director:
  349         1. Advocacy director.—The advocacy director shall ensure
  350  that each applicant is provided high-quality individual
  351  assistance throughout the process, from initial filing to
  352  disposition of the application. The advocacy director shall
  353  assist each applicant in determining whether to retain an
  354  attorney, which assistance shall include an explanation of
  355  possible fee arrangements and the advantages and disadvantages
  356  of retaining an attorney. If the applicant seeks to file an
  357  application without an attorney, the advocacy director shall
  358  assist the applicant in filing the application. In addition, the
  359  advocacy director shall regularly provide status reports to the
  360  applicant regarding his or her application.
  361         2. Chief compensation officer.—The chief compensation
  362  officer shall manage the Office of Compensation. The chief
  363  compensation officer shall recommend to the Compensation
  364  Committee a compensation schedule for each type of medical
  365  injury. The chief compensation officer may not be a licensed
  366  physician or an attorney.
  367         3. Chief financial officer.—The chief financial officer
  368  shall be responsible for overseeing the financial operations of
  369  the Patient Compensation System, including the annual
  370  development of a budget.
  371         4. Chief legal officer.—The chief legal officer shall
  372  represent the Patient Compensation System in all contested
  373  applications, oversee the operation of the Patient Compensation
  374  System to ensure compliance with established procedures, and
  375  ensure adherence to all applicable federal and state laws,
  376  rules, and regulations.
  377         5. Chief medical officer.—The chief medical officer must be
  378  a physician licensed under chapter 458 or chapter 459 and shall
  379  manage the Office of Medical Review. The chief medical officer
  380  shall recommend to the Medical Review Committee a qualified list
  381  of multidisciplinary panelists for independent medical review
  382  panels. In addition, the chief medical officer shall convene
  383  independent medical review panels as necessary to review
  384  applications.
  385         6. Chief quality officer.—The chief quality officer shall
  386  manage the Office of Quality Improvement.
  387         (3) OFFICES.—The following offices are established within
  388  the Patient Compensation System:
  389         (a) Office of Medical Review.—The Office of Medical Review
  390  shall evaluate and, as necessary, investigate all applications
  391  in accordance with this part. For the purpose of an
  392  investigation of an application, the office shall have the power
  393  to administer oaths, take depositions, issue subpoenas, compel
  394  the attendance of witnesses and the production of papers,
  395  documents, and other evidence, and obtain patient records
  396  pursuant to the applicant’s release of protected health
  397  information.
  398         (b) Office of Compensation.—The Office of Compensation
  399  shall allocate compensation for each application in accordance
  400  with the compensation schedule.
  401         (c) Office of Quality Improvement.—The Office of Quality
  402  Improvement shall regularly review application data to conduct
  403  root cause analyses and develop and disseminate best practices
  404  based on such reviews. In addition, the office shall capture and
  405  record safety-related data obtained during an investigation
  406  conducted by the Office of Medical Review, including the cause
  407  of, the factors contributing to, and any interventions that may
  408  have prevented the medical injury.
  409         (4) COMMITTEES.—The board shall create a Medical Review
  410  Committee and a Compensation Committee. The board may create
  411  additional committees as necessary to assist in the performance
  412  of its duties and responsibilities.
  413         (a) Members.—Each committee shall be composed of three
  414  board members chosen by a majority vote of the board.
  415         1. The Medical Review Committee shall be composed of two
  416  physicians who are licensed in this state and a board member who
  417  is not an attorney who resides in this state. The board shall
  418  designate a physician committee member as chair of the
  419  committee.
  420         2. The Compensation Committee shall be composed of a
  421  certified public accountant who practices in this state and two
  422  board members who are not physicians or attorneys who reside in
  423  this state. The certified public accountant shall serve as chair
  424  of the committee.
  425         (b) Terms of appointment.—Members of each committee shall
  426  serve 2-year terms concurrent with their respective terms as
  427  board members. If a vacancy occurs on a committee, the board
  428  shall appoint a successor to serve the remainder of the term. A
  429  committee member who is removed or resigns from the board shall
  430  be removed from the committee.
  431         (c) Chair and vice chair.—The board shall annually
  432  designate a chair and vice chair of each committee.
  433         (d) Meetings.—Each committee shall meet at least quarterly
  434  or at the specific direction of the board. Meetings may be held
  435  by teleconference, web conference, or other electronic means.
  436         (e) Compensation.—Members of the committees shall serve
  437  without compensation but may be reimbursed for per diem and
  438  travel expenses for required attendance at committee meetings in
  439  accordance with s. 112.061.
  440         (f) Powers and duties.
  441         1. The Medical Review Committee shall recommend to the
  442  board a comprehensive, multidisciplinary list of panelists who
  443  shall serve on the independent medical review panels as needed.
  444         2. The Compensation Committee shall, in consultation with
  445  the chief compensation officer, recommend to the board:
  446         a. A compensation schedule, formulated such that the
  447  aggregate cost of medical malpractice and the aggregate of
  448  provider contributions are equal to or less than the prior
  449  fiscal year’s aggregate cost of medical malpractice. In
  450  addition, damage payments for each injury shall be no less than
  451  the average indemnity payment reported by the Physician Insurers
  452  Association of America or its successor organization for similar
  453  medical injuries with similar severity. Thereafter, the
  454  committee shall annually review the compensation schedule and,
  455  if necessary, recommend a revised schedule, such that a
  456  projected increase in the upcoming fiscal year’s aggregate cost
  457  of medical malpractice, including insured and self-insured
  458  providers, does not exceed the percentage change from the prior
  459  year in the medical care component of the Consumer Price Index
  460  for All Urban Consumers.
  461         b. Guidelines for the payment of compensation awards
  462  through periodic payments.
  463         c. Guidelines for the apportionment of compensation among
  464  multiple providers, which guidelines shall be based on the
  465  historical apportionment among multiple providers for similar
  466  injuries with similar severity.
  467         (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
  468  officer shall convene an independent medical review panel to
  469  evaluate each application to determine whether a medical injury
  470  occurred. Each panel shall be composed of an odd number of at
  471  least three panelists chosen from a list of panelists that
  472  represent the same or similar specialty as the provider shall
  473  convene, either in person or by teleconference, upon the call of
  474  the chief medical officer. Each panelist shall be paid a stipend
  475  as determined by the board for his or her service on the panel.
  476  In order to expedite the review of applications, the chief
  477  medical officer may, whenever practicable, group related
  478  applications together for consideration by a single panel.
  479         (6) CONFLICTS OF INTEREST.—A board member, panelist, or
  480  employee of the Patient Compensation System may not engage in
  481  any conduct that constitutes a conflict of interest. For
  482  purposes of this subsection, the term “conflict of interest”
  483  means a situation in which the private interest of a board
  484  member, panelist, or employee could influence his or her
  485  judgment in the performance of his or her duties under this
  486  part. A board member, panelist, or employee shall immediately
  487  disclose in writing the presence of a conflict of interest when
  488  the board member, panelist, or employee knows or should
  489  reasonably have known that the factual circumstances surrounding
  490  a particular application constitute or constituted a conflict of
  491  interest. A board member, panelist, or employee who violates
  492  this subsection is subject to disciplinary action as determined
  493  by the board. A conflict of interest includes, but is not
  494  limited to:
  495         (a) Conduct that would lead a reasonable person having
  496  knowledge of all of the circumstances to conclude that a board
  497  member, panelist, or employee is biased against or in favor of
  498  an applicant.
  499         (b) Participation in an application in which the board
  500  member, panelist, or employee, or the parent, spouse, or child
  501  of a board member, panelist, or employee, has a financial
  502  interest.
  503         (7) RULEMAKING.—The board shall adopt rules to implement
  504  and administer this part, including rules addressing:
  505         (a) The application process, including forms necessary to
  506  collect relevant information from applicants.
  507         (b) Disciplinary procedures for a board member, panelist,
  508  or employee who violates the conflict of interest provisions of
  509  this part.
  510         (c) Stipends paid to panelists for their service on an
  511  independent medical review panel, which stipends may be scaled
  512  in accordance with the relative scarcity of the provider’s
  513  specialty, if applicable.
  514         (d) Payment of compensation awards through periodic
  515  payments and the apportionment of compensation among multiple
  516  providers, as recommended by the Compensation Committee.
  517         (e) The opt-out process for providers who do not want to
  518  participate in the Patient Compensation System.
  519         Section 7. Effective July 1, 2015, section 766.405, Florida
  520  Statutes, is created to read:
  521         766.405 Filing of applications.—
  522         (1) CONTENT.—In order to obtain compensation for a medical
  523  injury, an applicant, or his or her legal representative, shall
  524  file an application with the Patient Compensation System. The
  525  application shall include the following:
  526         (a) The name and address of the applicant or his or her
  527  legal representative and the basis of the representation.
  528         (b) The name and address of any participating provider who
  529  provided medical treatment allegedly resulting in the medical
  530  injury.
  531         (c) A brief statement of the facts and circumstances
  532  surrounding the medical injury that gave rise to the
  533  application.
  534         (d) An authorization for release to the Office of Medical
  535  Review of all protected health information that is potentially
  536  relevant to the application.
  537         (e) Any other information that the applicant believes will
  538  be beneficial to the investigatory process, including the names
  539  of potential witnesses.
  540         (f) Documentation of any applicable private or governmental
  541  source of services or reimbursement relative to the medical
  542  injury.
  543         (2) INCOMPLETE APPLICATIONS.—If an application is not
  544  complete, the Patient Compensation System shall, within 30 days
  545  after the receipt of the initial application, notify the
  546  applicant in writing of any errors or omissions. An applicant
  547  shall have 30 days after receipt of the notice in which to
  548  correct the errors or omissions in the initial application.
  549         (3) TIME LIMITATION ON APPLICATIONS.—An application shall
  550  be filed within the time periods specified in s. 95.11(4) for
  551  medical malpractice actions. The applicable time period shall be
  552  tolled from the date an application is filed until the date the
  553  applicant receives the results of the initial medical review
  554  under s. 766.406.
  555         (4) SUPPLEMENTAL INFORMATION.—After the filing of an
  556  application, the applicant may supplement the initial
  557  application with additional information that the applicant
  558  believes may be beneficial in the resolution of the application.
  559         (5) LEGAL COUNSEL.—This part does not prohibit an applicant
  560  or participating provider from retaining an attorney to
  561  represent the applicant or participating provider in the review
  562  and resolution of an application.
  563         Section 8. Effective July 1, 2015, section 766.406, Florida
  564  Statutes, is created to read:
  565         766.406 Disposition of applications.—
  566         (1) INITIAL MEDICAL REVIEW.—Individuals with relevant
  567  clinical expertise in the Office of Medical Review shall, within
  568  10 days after the receipt of a completed application, determine
  569  whether the application, prima facie, constitutes a medical
  570  injury.
  571         (a) If the Office of Medical Review determines that the
  572  application, prima facie, constitutes a medical injury, the
  573  office shall immediately notify, by registered or certified
  574  mail, each participating provider named in the application and,
  575  for participating providers that are not self-insured, the
  576  insurer that provides coverage for the provider. The
  577  notification shall inform the participating provider that he or
  578  she may support the application to expedite the processing of
  579  the application. A participating provider shall have 15 days
  580  after the receipt of notification of an application to support
  581  the application. If the participating provider supports the
  582  application, the Office of Medical Review shall review the
  583  application in accordance with subsection (2).
  584         (b) If the Office of Medical Review determines that the
  585  application does not, prima facie, constitute a medical injury,
  586  the office shall send a rejection letter to the applicant by
  587  registered or certified mail informing the applicant of his or
  588  her right of appeal. The applicant shall have 15 days after the
  589  receipt of the letter in which to appeal the determination of
  590  the office pursuant to s. 766.407.
  591         (2) EXPEDITED MEDICAL REVIEW.—An application that is
  592  supported by a participating provider in accordance with
  593  subsection (1) shall be reviewed by individuals with relevant
  594  clinical expertise in the Office of Medical Review within 30
  595  days after notification of the participating provider’s support
  596  of the application to determine the validity of the application.
  597  If the Office of Medical Review finds that the application is
  598  valid, the Office of Compensation shall determine an award of
  599  compensation in accordance with subsection (4). If the Office of
  600  Medical Review finds that the application is not valid, the
  601  office shall immediately notify the applicant of the rejection
  602  of the application and, in the case of fraud, shall immediately
  603  notify relevant law enforcement authorities.
  604         (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
  605  determines that the application, prima facie, constitutes a
  606  medical injury and the participating provider does not elect to
  607  support the application, the office shall complete a thorough
  608  investigation of the application within 60 days after the
  609  determination by the office. The investigation shall be
  610  conducted by a multidisciplinary team with relevant clinical
  611  expertise and shall include a thorough investigation of all
  612  available documentation, witnesses, and other information.
  613  Within 15 days after the completion of the investigation, the
  614  chief medical officer shall allow the applicant and the
  615  participating provider to access records, statements, and other
  616  information obtained in the course of its investigation, in
  617  accordance with relevant state and federal laws.
  618         (a) Within 30 days after the completion of the
  619  investigation, the chief medical officer shall convene an
  620  independent medical review panel to determine whether the
  621  application constitutes a medical injury. The independent
  622  medical review panel shall have access to all redacted
  623  information obtained by the office in the course of its
  624  investigation of the application and shall make a written
  625  determination within 10 days after the convening of the panel,
  626  which written determination shall be immediately provided to the
  627  applicant and the participating provider.
  628         (b) If the independent medical review panel determines
  629  that:
  630         1. The medical intervention conformed to national practice
  631  standards for the care and treatment of patients, then the
  632  application shall be dismissed and the provider shall not be
  633  held responsible for the patient’s medical injury.
  634         2. All of the following criteria exist by a preponderance
  635  of the evidence, then the panel shall report that the
  636  application constitutes a medical injury:
  637         a. The provider performed a medical service on the
  638  applicant.
  639         b. The applicant suffered damages.
  640         c. The medical service was the proximate cause of the
  641  damages.
  642         d. One or more of the following, as determined in
  643  accordance with subsection (9) of section 766.402:
  644         (I) An accepted method of medical services was not used for
  645  treatment.
  646         (II) An accepted method of medical services was used for
  647  treatment, but executed in a substandard fashion.
  648         (III) An accepted method was used, but evaluated by a
  649  prospective analysis, damages could have been avoided by using a
  650  less hazardous, but equally effective, treatment.
  651         (c) If the independent medical review panel determines that
  652  the application constitutes a medical injury, the Office of
  653  Medical Review shall immediately notify the participating
  654  provider by registered or certified mail of the right to appeal
  655  the determination of the panel. The participating provider shall
  656  have 15 days after the receipt of the letter in which to appeal
  657  the determination of the panel pursuant to s. 766.407.
  658         (d) If the independent medical review panel determines that
  659  the application does not constitute a medical injury, the Office
  660  of Medical Review shall immediately notify the applicant by
  661  registered or certified mail of the right to appeal the
  662  determination of the panel. The applicant shall have 15 days
  663  from the receipt of the letter to appeal the determination of
  664  the panel pursuant to s. 766.407.
  665         (4) COMPENSATION REVIEW.—If an independent medical review
  666  panel finds that an application constitutes a medical injury
  667  under subsection (3) and all appeals of that finding have been
  668  exhausted by the participating provider pursuant to s. 766.407,
  669  the Office of Compensation shall, within 30 days after either
  670  the finding of the panel or the exhaustion of all appeals of
  671  that finding, whichever occurs later, make a written
  672  determination of an award of compensation in accordance with the
  673  compensation schedule and the findings of the panel. The office
  674  shall notify the applicant and the participating provider by
  675  registered or certified mail of the amount of compensation and
  676  shall also explain to the applicant the process to appeal the
  677  determination of the office. The applicant shall have 15 days
  678  from the receipt of the letter to appeal the determination of
  679  the office pursuant to s. 766.407.
  680         (5) LIMITATION ON COMPENSATION.—Compensation for each
  681  application shall be offset by any past and future collateral
  682  source payments. In addition, compensation may be paid by
  683  periodic payments as determined by the Office of Compensation in
  684  accordance with rules adopted by the board.
  685         (6) PAYMENT OF COMPENSATION.—Within 14 days after either
  686  the acceptance of compensation by the applicant or the
  687  conclusion of all appeals pursuant to s. 766.407, the
  688  participating provider, or the insurer for a participating
  689  provider who has insurance coverage, shall remit the
  690  compensation award to the Patient Compensation System, which
  691  shall immediately provide compensation to the applicant in
  692  accordance with the final compensation award. Beginning 45 days
  693  after the acceptance of compensation by the applicant or the
  694  conclusion of all appeals pursuant to s. 766.407, whichever
  695  occurs later, an unpaid award shall begin to accrue interest at
  696  the rate of 18 percent per year.
  697         (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of
  698  s. 26, Art. X of the State Constitution, a physician who is the
  699  subject of an application under this part must be found to have
  700  committed medical malpractice only upon a specific finding of
  701  the Board of Medicine or Board of Osteopathic Medicine, as
  702  applicable, in accordance with s. 456.50.
  703         (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
  704  System shall provide the department with electronic access to
  705  applications for which a medical injury was determined to exist,
  706  related to persons licensed under chapter 458, chapter 459,
  707  chapter 460, part I of chapter 464, or chapter 466, where the
  708  provider represents an imminent risk of harm to the public. The
  709  department shall review such applications to determine whether
  710  any of the incidents that resulted in the application
  711  potentially involved conduct by the licensee that is subject to
  712  disciplinary action, in which case s. 456.073 applies.
  713         Section 9. Effective July 1, 2015, section 766.407, Florida
  714  Statutes, is created to read:
  715         766.407 Review by administrative law judge; appellate
  716  review; extensions of time.—
  717         (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative
  718  law judge shall hear and determine appeals filed pursuant to s.
  719  766.406 and shall exercise the full power and authority granted
  720  to him or her in chapter 120, as necessary, to carry out the
  721  purposes of that section. The administrative law judge shall be
  722  limited in his or her review to determining whether the Office
  723  of Medical Review, the independent medical review panel, or the
  724  Office of Compensation, as appropriate, has faithfully followed
  725  the requirements of this part and rules adopted thereunder in
  726  reviewing applications. If the administrative law judge
  727  determines that such requirements were not followed in reviewing
  728  an application, he or she shall require the chief medical
  729  officer to either reconvene the original panel or convene a new
  730  panel, or require the Office of Compensation to redetermine the
  731  compensation amount, in accordance with the determination of the
  732  judge.
  733         (2) APPELLATE REVIEW.—A determination by an administrative
  734  law judge under this section regarding the award or denial of
  735  compensation under this part shall be conclusive and binding as
  736  to all questions of fact and shall be provided to the applicant
  737  and the participating provider. An applicant may appeal the
  738  award or denial of compensation to the District Court of Appeal.
  739  Appeals shall be filed in accordance with rules of procedure
  740  adopted by the Supreme Court for review of such orders.
  741         (3) EXTENSIONS OF TIME.—Upon a written petition by either
  742  the applicant or the participating provider, an administrative
  743  law judge may grant, for good cause, an extension of any of the
  744  time periods specified in this part. The relevant time period
  745  shall be tolled from the date of the written petition until the
  746  date the administrative law judge issues a determination.
  747         Section 10. Effective July 1, 2015, section 766.408,
  748  Florida Statutes, is created to read:
  749         766.408 Expenses of administration; opt out.—
  750         (1) The board shall annually determine a contribution that
  751  shall be paid by each provider, unless the provider opts out of
  752  participation in the Patient Compensation System pursuant to
  753  subsection (6). The contribution amount shall be determined by
  754  January 1 of each year and shall be based on the anticipated
  755  expenses of the administration of this part for the next state
  756  fiscal year.
  757         (2) The contribution rate may not exceed the following
  758  amounts:
  759         (a) For an individual licensed under s. 401.27, a
  760  chiropractic assistant licensed under chapter 460, or an
  761  individual licensed under chapter 461, chapter 462, chapter 463,
  762  chapter 464 with the exception of a certified registered nurse
  763  anesthetist, chapter 465, chapter 466, chapter 467, part I, part
  764  II, part III, part IV, part V, part X, part XIII, or part XIV of
  765  chapter 468, chapter 478, part III of chapter 483, or chapter
  766  486, $100 per licensee.
  767         (b) For an anesthesiology assistant or physician assistant
  768  licensed under chapter 458 or chapter 459 or a certified
  769  registered nurse anesthetist certified under part I of chapter
  770  464, $250 per licensee.
  771         (c) For a physician licensed under chapter 458, chapter
  772  459, or chapter 460, $600 per licensee. The contribution for the
  773  initial fiscal year shall be $500 per licensee.
  774         (d) For a facility licensed under part II of chapter 400,
  775  $100 per bed.
  776         (e) For a facility licensed under chapter 395, $200 per
  777  bed, except that the contribution for the initial fiscal year
  778  shall be $100 per bed.
  779         (f) For any other provider not otherwise described in this
  780  subsection, $2,500 per registrant or licensee.
  781         (3) The contribution determined under this section shall be
  782  payable by each participating provider upon notice delivered on
  783  or after July 1 of the next state fiscal year. Each
  784  participating provider shall pay the contribution amount within
  785  30 days after the date the notice is delivered to the provider.
  786  If a provider fails to pay the contribution determined under
  787  this section within 30 days after such notice, the board shall
  788  notify the provider by certified or registered mail that the
  789  provider’s license shall be subject to revocation if the
  790  contribution is not paid within 60 days from the date of the
  791  original notice.
  792         (4) A provider that has not opted out of participation
  793  pursuant to subsection (6) who fails to pay the contribution
  794  amount determined under this section within 60 days after
  795  receipt of the original notice shall be subject to a licensure
  796  revocation action by the department, the Agency for Health Care
  797  Administration, or the relevant regulatory board, as applicable.
  798         (5) All amounts collected under this section shall be paid
  799  into the Patient Compensation Trust Fund established in s.
  800  766.4105.
  801         (6) A provider may elect to opt out of participation in the
  802  Patient Compensation System. The election to opt out must be
  803  made in writing no later than 15 days before the due date of the
  804  contribution required under this section. A provider who opts
  805  out may subsequently elect to participate by paying the
  806  appropriate contribution amount for the current fiscal year.
  807         Section 11. Section 766.409, Florida Statutes, is created
  808  to read:
  809         766.409 Notice to patients of participation in the Patient
  810  Compensation System.—
  811         (1) Each participating provider shall provide notice to
  812  patients that the provider is participating in the Patient
  813  Compensation System. Such notice shall be provided on a form
  814  furnished by the Patient Compensation System and shall include a
  815  concise explanation of a patient’s rights and benefits under the
  816  system.
  817         (2) Notice is not required to be given to a patient when
  818  the patient has an emergency medical condition as defined in s.
  819  395.002(8)(b) or when notice is not practicable.
  820         Section 12. Section 766.410, Florida Statutes, is created
  821  to read:
  822         766.410 Annual report.—The board shall annually, beginning
  823  on October 1, 2015, submit to the Governor, the President of the
  824  Senate, and the Speaker of the House of Representatives a report
  825  that describes the filing and disposition of applications in the
  826  preceding fiscal year. The report shall include, in the
  827  aggregate, the number of applications, the disposition of such
  828  applications, and the compensation awarded.
  829         Section 13. This act applies to medical incidents for which
  830  a notice of intent to initiate litigation has not been mailed
  831  before July 1, 2015.
  832         Section 14. If any provision of this act or its application
  833  to any person or circumstance is held invalid, the invalidity
  834  does not affect other provisions or applications of the act
  835  which may be given effect without the invalid provision or
  836  application, and to this end the provisions of this act are
  837  severable.
  838         Section 15. Except as otherwise expressly provided in this
  839  act, this act shall take effect July 1, 2014.