Senate Bill 1242

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    Florida Senate - 2000                                  SB 1242

    By Senator Holzendorf





    2-786-00

  1                      A bill to be entitled

  2         An act relating to the Florida Birth-Related

  3         Neurological Injury Compensation Association;

  4         amending ss. 766.301, 766.31, F.S.; providing

  5         clarification of legislative intent as to the

  6         circumstances in which awards may be made,

  7         respectively, under s. 766.31(1)(a), F.S., or

  8         s. 766.31(1)(b), F.S.; providing retroactive

  9         applicability; providing an effective date.

10

11  Be It Enacted by the Legislature of the State of Florida:

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13         Section 1.  Paragraph (e) is added to subsection (1) of

14  section 766.301, Florida Statutes, to read:

15         766.301  Legislative findings and intent.--

16         (1)  The Legislature makes the following findings:

17         (e)  In order to maintain the actuarial soundness of

18  the compensation scheme for birth-related neurological

19  injuries as established in ss. 766.301-766.315, the

20  Legislature hereby restates and clarifies its original intent

21  with respect to the distinction between the payment of actual

22  expenses for medical necessities, which is authorized in s.

23  766.31(1)(a), and the award of up to $100,000 for the parents

24  or legal guardians of neurologically injured children, which

25  is authorized in s. 766.31(1)(b). It has always been the

26  intent of the Legislature that the term "actual expenses," as

27  used in s. 766.31(1)(a), means only out-of-pocket, monetary

28  expenditures for the professionally rendered care of a

29  neurologically injured child, as opposed to payments for the

30  time spent by a parent or other family member in providing

31  care to an eligible child, and that s. 766.31(1)(b) has been

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    Florida Senate - 2000                                  SB 1242
    2-786-00




  1  and remains the exclusive source of nonreimbursement funds for

  2  parents or legal guardians irrespective of the time,

  3  activities, and services they devote to the care and welfare

  4  of an eligible neurologically injured child.

  5         Section 2.  Paragraphs (a) and (b) of subsection (1) of

  6  section 766.31, Florida Statutes, are amended to read:

  7         766.31  Administrative law judge awards for

  8  birth-related neurological injuries; notice of award.--

  9         (1)  Upon determining that an infant has sustained a

10  birth-related neurological injury and that obstetrical

11  services were delivered by a participating physician at the

12  birth, the administrative law judge shall make an award

13  providing compensation for the following items relative to

14  such injury:

15         (a)  Actual expenses for medically necessary and

16  reasonable medical and hospital expenditures for, habilitative

17  and training, nonfamilial residential, and custodial care and

18  service, for medically necessary drugs, special equipment, and

19  facilities, and for related travel. However, such expenses

20  shall not include:

21         1.  Expenses for items or services that the infant has

22  received, or is entitled to receive, under the laws of any

23  state or the Federal Government, except to the extent such

24  exclusion may be prohibited by federal law.

25         2.  Expenses for items or services that the infant has

26  received, or is contractually entitled to receive, from any

27  prepaid health plan, health maintenance organization, or other

28  private insuring entity.

29         3.  Expenses for which the infant has received

30  reimbursement, or for which the infant is entitled to receive

31  reimbursement, under the laws of any state or the Federal

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    Florida Senate - 2000                                  SB 1242
    2-786-00




  1  Government, except to the extent such exclusion may be

  2  prohibited by federal law.

  3         4.  Expenses for which the infant has received

  4  reimbursement, or for which the infant is contractually

  5  entitled to receive reimbursement, pursuant to the provisions

  6  of any health or sickness insurance policy or other private

  7  insurance program.

  8

  9  Expenses included under this paragraph shall be limited to

10  reasonable charges prevailing in the same community for

11  similar treatment of injured persons when such treatment is

12  paid for by the injured person.

13         (b)  Periodic payments of an award to the parents or

14  legal guardians of the infant found to have sustained a

15  birth-related neurological injury, which award shall not

16  exceed $100,000. However, at the discretion of the

17  administrative law judge, such award may be made in a lump

18  sum. An award made under this paragraph must be the exclusive

19  source of nonreimbursement funds from the plan to the parents

20  or legal guardians of an eligible neurologically injured

21  child, and compensation may not be provided under any other

22  provision of the plan for the time, services, or activities

23  performed by parents or legal guardians.

24         Section 3.  The purpose of this act is to reaffirm

25  legislative intent with respect to the term "actual expenses"

26  as used in section 766.31(1)(a), Florida Statutes, and the

27  term "awards" as used in section 766.31(1)(b), Florida

28  Statutes, in order to remedy any misimpression as to the

29  exclusive and distinct operation of these provisions. No

30  substantive law change is intended or is effected.

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    Florida Senate - 2000                                  SB 1242
    2-786-00




  1         Section 4.  This act shall take effect upon becoming a

  2  law and shall apply to all claims under the Florida

  3  Birth-Related Neurological Injury Compensation Plan which

  4  claims date from the effective date of chapter 88-1, Laws of

  5  Florida.

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  8                          SENATE SUMMARY

  9    Provides a clarification of legislative intent relating
      to certain awards arising out of birth-related
10    neurological injuries. Provides that the legislative
      intent expressed in this act applies retroactively to the
11    effective date of ch. 88-1, Laws of Florida, which
      created the Florida Birth-Related Neurological Injury
12    Compensation Plan.

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