CS for CS for SB 1786                           Second Engrossed
       
       
       
       
       
       
       
       
       20211786e2
       
    1                        A bill to be entitled                      
    2         An act relating to the Florida Birth-Related
    3         Neurological Injury Compensation Plan; amending s.
    4         11.45, F.S.; requiring the Auditor General to audit
    5         the Florida Birth-Related Neurological Injury
    6         Compensation Association at least once every 3 years;
    7         providing requirements for such audit; amending s.
    8         766.303, F.S.; requiring that the association
    9         administer the Florida Birth-Related Neurological
   10         Injury Compensation Plan in a manner that promotes and
   11         protects the health and best interests of children
   12         with birth-related neurological injuries; amending s.
   13         766.31, F.S.; revising requirements for the award for
   14         compensation for claims under the plan; authorizing
   15         parents or legal guardians receiving benefits under
   16         the plan to file a petition with the Division of
   17         Administrative Hearings to dispute the denial or
   18         amount of reimbursement of actual expenses; increasing
   19         the amount that may be awarded to the parents or legal
   20         guardians of an infant found to have sustained a
   21         birth-related neurological injury; requiring that such
   22         amount be increased annually; requiring the plan to
   23         provide retroactive payments to certain parents or
   24         legal guardians which are sufficient to bring the
   25         total award to a specified amount; authorizing such
   26         payments to be made in a lump sum or periodically;
   27         requiring the plan to make such payments by a
   28         specified date; increasing the death benefit for an
   29         infant found to have sustained a birth-related
   30         neurological injury; requiring the plan to provide
   31         retroactive payments to certain parents or legal
   32         guardians which are sufficient to bring the total
   33         death benefit award to a specified amount; authorizing
   34         such payments to be made in a lump sum or
   35         periodically; requiring the plan to make such payments
   36         by a specified date; creating s. 766.3145, F.S.;
   37         requiring association employees to annually sign and
   38         submit a conflict-of-interest statement as a condition
   39         of employment; requiring prospective employees to sign
   40         and submit such statement as a condition of
   41         employment; providing that the executive director,
   42         senior managers, and members of the board of directors
   43         are subject to specified provisions; prohibiting board
   44         members from voting on measures under certain
   45         circumstances; providing procedures and requirements
   46         for board members who have a conflict of interest;
   47         prohibiting employees and board members from accepting
   48         gifts or expenditures from certain individuals and
   49         entities; providing penalties; prohibiting certain
   50         senior managers and executive directors from
   51         representing persons or entities before the
   52         association for a specified timeframe; amending s.
   53         766.315, F.S.; revising the membership of the board of
   54         directors of the association; prohibiting certain
   55         appointed directors from voting on board matters
   56         relating to a claim if they were named in the petition
   57         for the claim; providing a term limit for directors;
   58         revising the process for recommending new directors;
   59         authorizing removal of a director from office for
   60         specified reasons; revising the powers of the
   61         directors; providing that meetings of the board of
   62         directors are subject to the public meetings and
   63         records law; specifying notice and agenda requirements
   64         for board meetings; requiring the association to
   65         furnish a list of compensable expenses to parents and
   66         legal guardians receiving benefits; requiring the
   67         association to publish a report on its website by a
   68         specified date annually; providing requirements for
   69         such report; requiring the association to submit a
   70         report to the Governor, Legislature, and Chief
   71         Financial Officer by a specified date annually;
   72         providing requirements for such report; providing
   73         applicability; requiring the Agency for Health Care
   74         Administration to conduct a review and provide certain
   75         recommendations regarding Medicaid third-party
   76         benefits payable by and recoverable from the plan;
   77         requiring the agency to submit a report of its
   78         findings to the Legislature and the Chief Financial
   79         Officer by a specified date; providing an effective
   80         date.
   81          
   82  Be It Enacted by the Legislature of the State of Florida:
   83  
   84         Section 1. Paragraph (n) is added to subsection (2) of
   85  section 11.45, Florida Statutes, to read:
   86         11.45 Definitions; duties; authorities; reports; rules.—
   87         (2) DUTIES.—The Auditor General shall:
   88         (n) At least once every 3 years, conduct an operational
   89  audit of the Florida Birth-Related Neurological Injury
   90  Compensation Association. Each operational audit shall include,
   91  at a minimum, an assessment of compliance with ss. 766.303
   92  766.315, and compliance with the public records and public
   93  meetings laws of this state. The first operational audit must be
   94  completed by August 15, 2021.
   95  
   96  The Auditor General shall perform his or her duties
   97  independently but under the general policies established by the
   98  Legislative Auditing Committee. This subsection does not limit
   99  the Auditor General’s discretionary authority to conduct other
  100  audits or engagements of governmental entities as authorized in
  101  subsection (3).
  102         Section 2. Subsection (4) is added to section 766.303,
  103  Florida Statutes, to read:
  104         766.303 Florida Birth-Related Neurological Injury
  105  Compensation Plan; exclusiveness of remedy.—
  106         (4) The association shall administer the plan in a manner
  107  that promotes and protects the health and best interests of
  108  children with birth-related neurological injuries.
  109         Section 3. Paragraphs (a) and (b) of subsection (1) of
  110  section 766.31, Florida Statutes, are amended to read:
  111         766.31 Administrative law judge awards for birth-related
  112  neurological injuries; notice of award.—
  113         (1) Upon determining that an infant has sustained a birth
  114  related neurological injury and that obstetrical services were
  115  delivered by a participating physician at the birth, the
  116  administrative law judge shall make an award providing
  117  compensation for the following items relative to such injury:
  118         (a) Actual expenses for medically necessary and reasonable
  119  medical and hospital, habilitative and training, family
  120  residential or custodial care, professional residential, and
  121  custodial care and service, for medically necessary drugs,
  122  special equipment, and facilities, and for related travel. At a
  123  minimum, compensation must be provided for the following actual
  124  expenses:
  125         1. A total annual benefit of up to $10,000 for immediate
  126  family members who reside with the infant for psychotherapeutic
  127  services obtained from providers licensed under chapter 490 or
  128  chapter 491.
  129         2. For the life of the child, providing parents or legal
  130  guardians with a reliable method of transportation for the care
  131  of the child or reimbursing the cost of upgrading an existing
  132  vehicle to accommodate the child’s needs when it becomes
  133  medically necessary for wheelchair transportation. The mode of
  134  transportation must take into account the special accommodations
  135  required for the specific child. The plan may not limit such
  136  transportation assistance based on the child’s age or weight.
  137  The plan must replace any vans purchased by the plan every 7
  138  years or 150,000 miles, whichever comes first.
  139         3. Housing assistance of up to $100,000 for the life of the
  140  child, including home construction and modification costs.
  141         (b) However, the following expenses are not subject to
  142  compensation such expenses shall not include:
  143         1. Expenses for items or services that the infant has
  144  received, or is entitled to receive, under the laws of any state
  145  or the Federal Government, except to the extent such exclusion
  146  may be prohibited by federal law.
  147         2. Expenses for items or services that the infant has
  148  received, or is contractually entitled to receive, from any
  149  prepaid health plan, health maintenance organization, or other
  150  private insuring entity.
  151         3. Expenses for which the infant has received
  152  reimbursement, or for which the infant is entitled to receive
  153  reimbursement, under the laws of any state or the Federal
  154  Government, except to the extent such exclusion may be
  155  prohibited by federal law.
  156         4. Expenses for which the infant has received
  157  reimbursement, or for which the infant is contractually entitled
  158  to receive reimbursement, pursuant to the provisions of any
  159  health or sickness insurance policy or other private insurance
  160  program.
  161         (c) Expenses included under this paragraph (a) are shall be
  162  limited to reasonable charges prevailing in the same community
  163  for similar treatment of injured persons when such treatment is
  164  paid for by the injured person. The parents or legal guardians
  165  receiving benefits under the plan may file a petition with the
  166  Division of Administrative Hearings to dispute the amount of
  167  actual expenses reimbursed or a denial of reimbursement.
  168         (d)1.a.(b)1. Periodic payments of an award to the parents
  169  or legal guardians of the infant found to have sustained a
  170  birth-related neurological injury, which award may shall not
  171  exceed $100,000. However, at the discretion of the
  172  administrative law judge, such award may be made in a lump sum.
  173  Beginning on January 1, 2021, the award may not exceed $250,000,
  174  and each January 1 thereafter, the maximum award authorized
  175  under this paragraph shall increase by 3 percent.
  176         b. Parents or legal guardians who received an award
  177  pursuant to this section before January 1, 2021, and whose child
  178  currently receives benefits under the plan must receive a
  179  retroactive payment in an amount sufficient to bring the total
  180  award paid to the parents or legal guardians pursuant to sub
  181  subparagraph a. to $250,000. This additional payment may be made
  182  in a lump sum or in periodic payments as designated by the
  183  parents or legal guardians and must be paid by July 1, 2021.
  184         2.a. Death benefit for the infant in an amount of $50,000.
  185         b. Parents or legal guardians who received an award
  186  pursuant to this section, and whose child died since the
  187  inception of the program, must receive a retroactive payment in
  188  an amount sufficient to bring the total award paid to the
  189  parents or legal guardians pursuant to sub-subparagraph a. to
  190  $50,000. This additional payment may be made in a lump sum or in
  191  periodic payments as designated by the parents or legal
  192  guardians and must be paid by July 1, 2021 $10,000.
  193         Section 4. Section 766.3145, Florida Statutes, is created
  194  to read:
  195         766.3145 Code of ethics.—
  196         (1) On or before July 1 of each year, employees of the
  197  association must sign and submit a statement attesting that they
  198  do not have a conflict of interest as defined in part III of
  199  chapter 112. As a condition of employment, all prospective
  200  employees must sign and submit to the association a conflict-of
  201  interest statement.
  202         (2) The executive director, senior managers, and members of
  203  the board of directors are subject to the code of ethics under
  204  part III of chapter 112. For purposes of applying part III of
  205  chapter 112 to activities of the executive director, senior
  206  managers, and members of the board of directors, those persons
  207  are considered public officers or employees and the association
  208  is considered their agency. A board member may not vote on any
  209  measure that would inure to his or her special private gain or
  210  loss and, notwithstanding s. 112.3143(2), may not vote on any
  211  measure that he or she knows would inure to the special private
  212  gain or loss of any principal by whom he or she is retained or
  213  to the parent organization or subsidiary of a corporate
  214  principal by which he or she is retained, other than an agency
  215  as defined in s. 112.312; or that he or she knows would inure to
  216  the special private gain or loss of a relative or business
  217  associate of the public officer. Before the vote is taken, such
  218  member shall publicly state to the board the nature of his or
  219  her interest in the matter from which he or she is abstaining
  220  from voting and, within 15 days after the vote occurs, disclose
  221  the nature of his or her interest as a public record in a
  222  memorandum filed with the person responsible for recording the
  223  minutes of the meeting, who shall incorporate the memorandum in
  224  the minutes.
  225         (3) Notwithstanding s. 112.3148, s. 112.3149, or any other
  226  law, an employee or board member may not knowingly accept,
  227  directly or indirectly, any gift or expenditure from a person or
  228  entity, or an employee or representative of such person or
  229  entity, which has a contractual relationship with the
  230  association or which is under consideration for a contract.
  231         (4) An employee or board member who fails to comply with
  232  subsection (2) or subsection (3) is subject to penalties
  233  provided under ss. 112.317 and 112.3173.
  234         (5) Any senior manager or executive director of the
  235  association who is employed on or after January 1, 2022,
  236  regardless of the date of hire, who subsequently retires or
  237  terminates employment is prohibited from representing another
  238  person or entity before the association for 2 years after
  239  retirement or termination of employment from the association.
  240         Section 5. Section 766.315, Florida Statutes, is amended to
  241  read:
  242         766.315 Florida Birth-Related Neurological Injury
  243  Compensation Association; board of directors; notice of
  244  meetings; report.—
  245         (1)(a) The Florida Birth-Related Neurological Injury
  246  Compensation Plan shall be governed by a board of seven five
  247  directors which shall be known as the Florida Birth-Related
  248  Neurological Injury Compensation Association. The association is
  249  not a state agency, board, or commission. Notwithstanding the
  250  provision of s. 15.03, the association is authorized to use the
  251  state seal.
  252         (b) The directors shall be appointed for staggered terms of
  253  3 years or until their successors are appointed and have
  254  qualified; however, a director may not serve for more than 6
  255  consecutive years.
  256         (c) The directors shall be appointed by the Chief Financial
  257  Officer as follows:
  258         1. One citizen representative who is not affiliated with
  259  any of the groups identified in subparagraphs 2.-7.
  260         2. One representative of participating physicians.
  261         3. One representative of hospitals.
  262         4. One representative of casualty insurers.
  263         5. One representative of physicians other than
  264  participating physicians.
  265         6. One parent or legal guardian representative of an
  266  injured infant under the plan.
  267         7. One representative of an advocacy organization for
  268  children with disabilities.
  269         (2)(a) The Chief Financial Officer may select the
  270  representative of the participating physicians from a list of at
  271  least three names recommended by the American Congress of
  272  Obstetricians and Gynecologists, District XII; the
  273  representative of hospitals from a list of at least three names
  274  recommended by the Florida Hospital Association; the
  275  representative of casualty insurers from a list of at least
  276  three names, one of which is recommended by the American
  277  Insurance Association, one of which is recommended by the
  278  Florida Insurance Council, and one of which is recommended by
  279  the Property Casualty Insurers Association of America; and the
  280  representative of physicians, other than participating
  281  physicians, from a list of three names recommended by the
  282  Florida Medical Association and a list of three names
  283  recommended by the Florida Osteopathic Medical Association.
  284  However, the Chief Financial Officer is not required to make an
  285  appointment from among the nominees of the respective
  286  associations. A participating physician who is named in a
  287  pending petition for a claim may not be appointed to the board.
  288  An appointed director who is a participating physician may not
  289  vote on any board matter relating to a claim accepted for an
  290  award for compensation if the physician is named in the petition
  291  for the claim.
  292         (b) If applicable, the Chief Financial Officer shall
  293  promptly notify the appropriate medical association or person
  294  identified in paragraph (a) to make recommendations upon the
  295  occurrence of any vacancy, and like nominations may be made for
  296  the filling of the vacancy.
  297         (c) The Governor or the Chief Financial Officer may remove
  298  a director from office for misconduct, malfeasance, misfeasance,
  299  or neglect of duty in office. Any vacancy so created shall be
  300  filled as provided in paragraph (a).
  301         (3) The directors may shall not transact any business or
  302  exercise any power of the plan except upon the affirmative vote
  303  of four three directors. The directors shall serve without
  304  salary, but are entitled to receive reimbursement each director
  305  shall be reimbursed for actual and necessary expenses incurred
  306  in the performance of his or her official duties as a director
  307  of the plan in accordance with s. 112.061. The directors are
  308  shall not be subject to any liability with respect to the
  309  administration of the plan.
  310         (4) The board of directors has shall have the power to:
  311         (a) Administer the plan.
  312         (b) Administer the funds collected on behalf of the plan.
  313         (c) Administer the payment of claims on behalf of the plan.
  314         (d) Direct the investment and reinvestment of any surplus
  315  funds over losses and expenses, if provided that any investment
  316  income generated thereby remains credited to the plan.
  317         (e) Reinsure the risks of the plan in whole or in part.
  318         (f) Sue and be sued, and appear and defend, in all actions
  319  and proceedings in its name to the same extent as a natural
  320  person.
  321         (g) Have and exercise all powers necessary or convenient to
  322  effect any or all of the purposes for which the plan is created.
  323         (h) Enter into such contracts as are necessary or proper to
  324  administer the plan.
  325         (i) Employ or retain such persons as are necessary to
  326  perform the administrative and financial transactions and
  327  responsibilities of the plan and to perform other necessary and
  328  proper functions not prohibited by law.
  329         (j) Take such legal action as may be necessary to avoid
  330  payment of improper claims.
  331         (k) Indemnify any employee, agent, member of the board of
  332  directors or alternate thereof, or person acting on behalf of
  333  the plan in an official capacity, for expenses, including
  334  attorney attorney’s fees, judgments, fines, and amounts paid in
  335  settlement actually and reasonably incurred in connection with
  336  any action, suit, or proceeding, including any appeal thereof,
  337  arising out of such person’s capacity to act acting on behalf of
  338  the plan, if; provided that such person acted in good faith and
  339  in a manner he or she reasonably believed to be in, or not
  340  opposed to, the best interests of the plan and the health and
  341  best interest of the child having birth-related neurological
  342  injuries, and if provided that, with respect to any criminal
  343  action or proceeding, such the person had reasonable cause to
  344  believe his or her conduct was lawful.
  345         (5)(a) Money may be withdrawn on account of the plan only
  346  upon a voucher as authorized by the association.
  347         (b) All meetings of the board of directors are subject to
  348  the requirements of s. 286.011, and all books, records, and
  349  audits of the plan are open to the public for reasonable
  350  inspection to the general public, except that a claim file in
  351  the possession of the association or its representative is
  352  confidential and exempt from the provisions of s. 119.07(1) and
  353  s. 24(a), Art. I of the State Constitution until termination of
  354  litigation or settlement of the claim, although medical records
  355  and other portions of the claim file may remain confidential and
  356  exempt as otherwise provided by law. Any book, record, document,
  357  audit, or asset acquired by, prepared for, or paid for by the
  358  association is subject to the authority of the board of
  359  directors, which is responsible therefor.
  360         (c) Except in the case of emergency meetings, the
  361  association shall give notice of any board meeting by
  362  publication on the association’s website not fewer than 7 days
  363  before the meeting. The association shall prepare an agenda in
  364  time to ensure that a copy of the agenda may be received at
  365  least 7 days before the meeting by any person who requests a
  366  copy and who pays the reasonable cost of the copy. The agenda,
  367  along with any meeting materials available in electronic form,
  368  excluding confidential and exempt information, shall be
  369  published on the association’s website. The agenda shall contain
  370  the items to be considered in order of presentation and a
  371  telephone number for members of the public to participate
  372  telephonically at the board meeting. After the agenda has been
  373  made available, a change shall be made only for good cause, as
  374  determined by the person designated to preside, and must be
  375  stated in the record. Notification of such change shall be at
  376  the earliest practicable time.
  377         (d) Each person authorized to receive deposits, issue
  378  vouchers, or withdraw or otherwise disburse any funds shall post
  379  a blanket fidelity bond in an amount reasonably sufficient to
  380  protect plan assets, as determined by the plan of operation. The
  381  cost of such bond will be paid from the assets of the plan.
  382         (e)(d) Annually, the association shall furnish audited
  383  financial reports to any plan participant upon request, to the
  384  Office of Insurance Regulation of the Financial Services
  385  Commission, and to the Joint Legislative Auditing Committee. The
  386  reports must be prepared in accordance with accepted accounting
  387  procedures and must include such information as may be required
  388  by the Office of Insurance Regulation or the Joint Legislative
  389  Auditing Committee. At any time determined to be necessary, the
  390  Office of Insurance Regulation or the Joint Legislative Auditing
  391  Committee may conduct an audit of the plan.
  392         (f)(e) Funds held on behalf of the plan are funds of the
  393  State of Florida. The association may only invest plan funds in
  394  the investments and securities described in s. 215.47, and shall
  395  be subject to the limitations on investments contained in that
  396  section. All income derived from such investments will be
  397  credited to the plan. The State Board of Administration may
  398  invest and reinvest funds held on behalf of the plan in
  399  accordance with the trust agreement approved by the association
  400  and the State Board of Administration and within the provisions
  401  of ss. 215.44-215.53.
  402         (6) The association shall furnish annually to each parent
  403  and legal guardian receiving benefits under the plan either by
  404  mail or electronically a list of expenses compensable under the
  405  plan.
  406         (7) The association shall publish a report on its website
  407  by January 1, 2022, and every January 1 thereafter. The report
  408  shall include:
  409         (a) The names and terms of each board member and executive
  410  staff member.
  411         (b) The amount of compensation paid to each association
  412  employee.
  413         (c) A summary of reimbursement disputes and resolutions.
  414         (d) A list of expenditures for attorney fees and lobbying
  415  fees.
  416         (e) Other expenses to oppose each plan claim. Any personal
  417  identifying information of the parent, legal guardian, or child
  418  involved in the claim must be removed from this list.
  419         (8) On or before November 1, 2021, and by each November 1
  420  thereafter, the association shall submit a report to the
  421  Governor, the President of the Senate, the Speaker of the House
  422  of Representatives, and the Chief Financial Officer. The report
  423  must include:
  424         (a) The number of petitions filed for compensation with the
  425  division, the number of claimants awarded compensation, the
  426  number of claimants denied compensation, and the reasons for the
  427  denial of compensation.
  428         (b) The number and dollar amount of paid and denied
  429  compensation for expenses by category and the reasons for any
  430  denied compensation for expenses by category.
  431         (c) The average turnaround time for paying or denying
  432  compensation for expenses.
  433         (d) Legislative recommendations to improve the program.
  434         (e) A summary of any pending or resolved litigation during
  435  the year which affects the plan.
  436         (f) The amount of compensation paid to each association
  437  employee or member of the board of directors.
  438         (g) For the initial report due on or before November 1,
  439  2021, an actuarial report conducted by an independent actuary
  440  which provides an analysis of the estimated costs of
  441  implementing the following changes to the plan:
  442         1. Reducing the minimum birth weight eligibility for a
  443  participant in the plan from 2,500 grams to 2,000 grams.
  444         2. Revising the eligibility for participation in the plan
  445  by providing that an infant must be permanently and
  446  substantially mentally or physically impaired, rather than
  447  permanently and substantially mentally and physically impaired.
  448         3. Increasing the annual special benefit or quality of life
  449  benefit from $500 to $2,500 per calendar year.
  450         Section 6. The amendments made to s. 766.31, Florida
  451  Statutes, by this act, apply to petitions pending or filed under
  452  s. 766.305, Florida Statutes, on or after January 1, 2021.
  453  However, s. 766.31(1)(d)1.b. and 2.b., Florida Statutes, as
  454  created by this act, apply retroactively.
  455         Section 7. The Agency for Health Care Administration must
  456  review its Medicaid third-party liability functions and rights
  457  under s. 409.910, Florida Statutes, relative to the Florida
  458  Birth-Related Neurological Injury Compensation Plan established
  459  under s. 766.303, Florida Statutes, and must include in its
  460  review the extent and value of the liabilities owed by the plan
  461  as a third-party benefit provider. Based on its findings, the
  462  agency shall provide recommendations regarding the development
  463  of policies and procedures to ensure robust implementation of
  464  agency functions and rights relative to the primacy of the
  465  plan’s third-party benefits payable under s. 766.31(1)(a)1. and
  466  3., Florida Statutes, and recoveries due the agency under s.
  467  409.910, Florida Statutes. On or before November 1, 2021, the
  468  agency must submit to the President of the Senate, the Speaker
  469  of the House of Representatives, and the Chief Financial Officer
  470  a report of its findings regarding the extent and value of the
  471  liabilities owed by the plan.
  472         Section 8. This act shall take effect upon becoming a law.