SENATE AMENDMENT
    Bill No. CS for SB 2750
    Amendment No. ___   Barcode 231652
                            CHAMBER ACTION
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11  Senator Peaden moved the following amendment:
12  
13         Senate Amendment (with title amendment) 
14         On page 86, line 31,
15  
16  insert:  
17         Section 62.  Subsection (1) of section 391.025, Florida
18  Statutes, is amended to read:
19         391.025  Applicability and scope.--
20         (1)  This act applies to health services provided to
21  eligible individuals who are:
22         (a)  Enrolled in the Medicaid program;
23         (b)  Enrolled in the Florida Kidcare program; and
24         (c)  Uninsured or underinsured, provided that they meet
25  the financial eligibility requirements established in this
26  act, and to the extent that resources are appropriated for
27  their care; and.
28         (d)  Infants who receive an award of compensation
29  pursuant to s. 766.31(1).
30         Section 63.  Paragraph (f) is added to subsection (2)
31  of section 391.029, Florida Statutes, to read:
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    6:53 PM   04/28/03                               s2750.hc02.0z

SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 391.029 Program eligibility.-- 2 (2) The following individuals are financially eligible 3 for the program: 4 (f) An infant who receives an award of compensation 5 pursuant to s. 766.31(1), provided the Florida Birth-Related 6 Neurological Injury Compensation Association shall reimburse 7 the Children's Medical Services Network the state's share of 8 funding, which funding shall be used to obtain matching 9 federal funds under Title XXI of the Social Security Act. 10 11 The department may continue to serve certain children with 12 special health care needs who are 21 years of age or older and 13 who were receiving services from the program prior to April 1, 14 1998. Such children may be served by the department until 15 July 1, 2000. 16 Section 64. Section 766.304, Florida Statutes, is 17 amended to read: 18 766.304 Administrative law judge to determine 19 claims.--The administrative law judge shall hear and determine 20 all claims filed pursuant to ss. 766.301-766.316 and shall 21 exercise the full power and authority granted to her or him in 22 chapter 120, as necessary, to carry out the purposes of such 23 sections. The administrative law judge has exclusive 24 jurisdiction to determine whether a claim filed under this act 25 is compensable. No civil action may be brought until the 26 determinations under s. 766.309 have been made by the 27 administrative law judge. If the administrative law judge 28 determines that the claimant is entitled to compensation from 29 the association, no civil action may be brought or continued 30 in violation of the exclusiveness of remedy provisions of s. 31 766.303. If it is determined that a claim filed under this act 2 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 is not compensable, neither the doctrine of collateral 2 estoppel nor res judicata shall prohibit the claimant from 3 pursuing any and all civil remedies available under common law 4 and statutory law. The findings of fact and conclusions of law 5 of the administrative law judge shall not be admissible in any 6 subsequent proceeding; however, the sworn testimony of any 7 person and the exhibits introduced into evidence in the 8 administrative case are admissible as impeachment in any 9 subsequent civil action only against a party to the 10 administrative proceeding, subject to the Rules of Evidence. 11 An award action may not be awarded or paid brought under ss. 12 766.301-766.316 if the claimant recovers under a settlement or 13 a final judgment is entered in a civil action. The division 14 may adopt rules to promote the efficient administration of, 15 and to minimize the cost associated with, the prosecution of 16 claims. 17 Section 65. Section 766.305, Florida Statutes, is 18 amended to read: 19 766.305 Filing of claims and responses; medical 20 disciplinary review.-- 21 (1) All claims filed for compensation under the plan 22 shall commence by the claimant filing with the division a 23 petition seeking compensation. Such petition shall include 24 the following information: 25 (a) The name and address of the legal representative 26 and the basis for her or his representation of the injured 27 infant. 28 (b) The name and address of the injured infant. 29 (c) The name and address of any physician providing 30 obstetrical services who was present at the birth and the name 31 and address of the hospital at which the birth occurred. 3 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 (d) A description of the disability for which the 2 claim is made. 3 (e) The time and place the injury occurred. 4 (f) A brief statement of the facts and circumstances 5 surrounding the injury and giving rise to the claim. 6 (g) All available relevant medical records relating to 7 the birth-related neurological injury, and an identification 8 of any unavailable records known to the claimant and the 9 reasons for their unavailability. 10 (h) Appropriate assessments, evaluations, and 11 prognoses, and such other records and documents as are 12 reasonably necessary for the determination of the amount of 13 compensation to be paid to, or on behalf of, the injured 14 infant on account of the birth-related neurological injury. 15 (i) Documentation of expenses and services incurred to 16 date, which indicates any payment made for such expenses and 17 services, and by whom. 18 (j) Documentation of any applicable private or 19 governmental source of services or reimbursement relative to 20 the impairments. 21 (2) The claimant shall furnish the division with as 22 many copies of the petition as required for service upon the 23 association, any physician and hospital named in the petition, 24 and the Division of Medical Quality Assurance, along with a 25 $15 filing fee payable to the Division of Administrative 26 Hearings. Upon receipt of the petition, the division shall 27 immediately serve the association, by service upon the agent 28 designated to accept service on behalf of the association, by 29 registered or certified mail, and shall mail copies of the 30 petition, by registered or certified mail, to any physician, 31 health care provider, and hospital named in the petition, and 4 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 furnish a copy by regular mail to the Di vision of Medical 2 Quality Assurance, and the Agency for Health Care 3 Administration. 4 (3) The claimant shall furnish to the executive 5 director of the Florida Birth-Related Neurological 6 Compensation Association one copy of the following information 7 which shall be filed with the association within 10 days after 8 the filing of the petition as set forth in s. 766.305(1): 9 (a) All available relevant medical records relating to 10 the birth-related neurological injury and an identification of 11 any unavailable records known to the claimant and the reasons 12 for their unavailability. 13 (b) Appropriate assessments, evaluations, and 14 prognoses and such other records and documents as are 15 reasonably necessary for the determination of the amount of 16 compensation to be paid to, or on behalf of, the injured 17 infant on account of the birth-related neurological injury. 18 (c) Documentation of expenses and services incurred to 19 date, which indicates any payment made for such expenses and 20 services and by whom. 21 (d) Documentation of any applicable private or 22 governmental source of services or reimbursement relative to 23 the impairments. 24 25 The information contained in paragraphs (a)-(d) is 26 confidential and exempt pursuant to the provisions of s. 27 766.315(5)(b). 28 (4)(3) The association shall have 45 days from the 29 date of service of a complete claim, filed pursuant to 30 subsections (1) and (2), in which to file a response to the 31 petition and to submit relevant written information relating 5 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 to the issue of whether the injury alleged is a birth-related 2 neurological injury. 3 (5)(4) Upon receipt of such petition, the Division of 4 Medical Quality Assurance shall review the information therein 5 and determine whether it involved conduct by a physician 6 licensed under chapter 458 or an osteopathic physician 7 licensed under chapter 459 that is subject to disciplinary 8 action, in which case the provisions of s. 456.073 shall 9 apply. 10 (6)(5) Upon receipt of such petition, the Agency for 11 Health Care Administration shall investigate the claim, and if 12 it determines that the injury resulted from, or was aggravated 13 by, a breach of duty on the part of a hospital in violation of 14 chapter 395, it shall take any such action consistent with its 15 disciplinary authority as may be appropriate. 16 (7)(6) Any claim which the association determines to 17 be compensable may be accepted for compensation, provided that 18 the acceptance is approved by the administrative law judge to 19 whom the claim for compensation is assigned. 20 Section 66. Subsection (4) is added to section 21 766.309, Florida Statutes, to read: 22 766.309 Determination of claims; presumption; findings 23 of administrative law judge binding on participants.-- 24 (4) If it is in the interest of judicial economy or if 25 requested to by the claimant, the administrative law judge may 26 bifurcate the proceeding, addressing compensability and notice 27 pursuant to s. 766.316 first and addressing any award pursuant 28 to s. 766.31 in a separate proceeding. The administrative law 29 judge may issue a final order on compensability and notice 30 which is subject to appeal under s. 766.311, prior to issuance 31 of award pursuant to s. 766.31. 6 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 Section 67. Subsection (1) of section 766.31, Florida 2 Statutes, is amended to read: 3 766.31 Administrative law judge awards for 4 birth-related neurological injuries; notice of award.-- 5 (1) Upon determining that an infant has sustained a 6 birth-related neurological injury and that obstetrical 7 services were delivered by a participating physician at the 8 birth, the administrative law judge shall make an award 9 providing compensation for the following items relative to 10 such injury: 11 (a) Actual expenses for medically necessary and 12 reasonable medical and hospital, habilitative and training, 13 family residential or custodial care, professional 14 residential, and custodial care and service, for medically 15 necessary drugs, special equipment, and facilities, and for 16 related travel. However, such expenses shall not include: 17 1. Expenses for items or services that the infant has 18 received, or is entitled to receive, under the laws of any 19 state or the Federal Government, including Medicaid, except to 20 the extent such exclusion may be prohibited by federal law. 21 2. Expenses for items or services that the infant has 22 received, or is contractually entitled to receive, from any 23 prepaid health plan, health maintenance organization, or other 24 private insuring entity. 25 3. Expenses for which the infant has received 26 reimbursement, or for which the infant is entitled to receive 27 reimbursement, under the laws of any state or the Federal 28 Government, including Medicaid, except to the extent such 29 exclusion may be prohibited by federal law. 30 4. Expenses for which the infant has received 31 reimbursement, or for which the infant is contractually 7 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 entitled to receive reimbursement, pursuant to the provisions 2 of any health or sickness insurance policy or other private 3 insurance program. 4 5 Expenses included under this paragraph shall be limited to 6 reasonable charges prevailing in the same community for 7 similar treatment of injured persons when such treatment is 8 paid for by the injured person. 9 (b)1. Periodic payments of an award to the parents or 10 legal guardians of the infant found to have sustained a 11 birth-related neurological injury, which award shall not 12 exceed $100,000. However, at the discretion of the 13 administrative law judge, such award may be made in a lump 14 sum. 15 2. A death benefit for the infant in an amount of 16 $10,000 Payment for funeral expenses not to exceed $1,500. 17 (c) Reasonable expenses incurred in connection with 18 the filing of a claim under ss. 766.301-766.316, including 19 reasonable attorney's fees, which shall be subject to the 20 approval and award of the administrative law judge. In 21 determining an award for attorney's fees, the administrative 22 law judge shall consider the following factors: 23 1. The time and labor required, the novelty and 24 difficulty of the questions involved, and the skill requisite 25 to perform the legal services properly. 26 2. The fee customarily charged in the locality for 27 similar legal services. 28 3. The time limitations imposed by the claimant or the 29 circumstances. 30 4. The nature and length of the professional 31 relationship with the claimant. 8 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 5. The experience, reputation, and ability of the 2 lawyer or lawyers performing services. 3 6. The contingency or certainty of a fee. 4 5 If there is an award of benefits under the plan, the claimants 6 shall not be liable for any attorney's fees incurred in 7 connection with the filing of a claim under ss. 8 766.301-766.316 other than those fees awarded under this 9 section. 10 Section 68. Subsection (4) of section 766.314, Florida 11 Statutes, is amended to read: 12 766.314 Assessments; plan of operation.-- 13 (4) The following persons and entities shall pay into 14 the association an initial assessment in accordance with the 15 plan of operation: 16 (a) On or before October 1, 1988, each hospital 17 licensed under chapter 395 shall pay an initial assessment of 18 $50 per infant delivered in the hospital during the prior 19 calendar year, as reported to the Agency for Health Care 20 Administration; provided, however, that a hospital owned or 21 operated by the state or a county, special taxing district, or 22 other political subdivision of the state shall not be required 23 to pay the initial assessment or any assessment required by 24 subsection (5). The term "infant delivered" includes live 25 births and not stillbirths, but the term does not include 26 infants delivered by employees or agents of the board of 27 trustees, Regents or those born in a teaching hospital as 28 defined in s. 408.07, or those born in a family practice 29 teaching hospital as defined in s. 395.806 that have been 30 deemed by the association as being exempt from assessments 31 since fiscal year 1997 to fiscal year 2001. The initial 9 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 assessment and any assessment imposed pursuant to subsection 2 (5) may not include any infant born to a charity patient (as 3 defined by rule of the Agency for Health Care Administration) 4 or born to a patient for whom the hospital receives Medicaid 5 reimbursement, if the sum of the annual charges for charity 6 patients plus the annual Medicaid contractuals of the hospital 7 exceeds 10 percent of the total annual gross operating 8 revenues of the hospital. The hospital is responsible for 9 documenting, to the satisfaction of the association, the 10 exclusion of any birth from the computation of the assessment. 11 Upon demonstration of financial need by a hospital, the 12 association may provide for installment payments of 13 assessments. 14 (b)1. On or before October 15, 1988, all physicians 15 licensed pursuant to chapter 458 or chapter 459 as of October 16 1, 1988, other than participating physicians, shall be 17 assessed an initial assessment of $250, which must be paid no 18 later than December 1, 1988. 19 2. Any such physician who becomes licensed after 20 September 30, 1988, and before January 1, 1989, shall pay into 21 the association an initial assessment of $250 upon licensure. 22 3. Any such physician who becomes licensed on or after 23 January 1, 1989, shall pay an initial assessment equal to the 24 most recent assessment made pursuant to this paragraph, 25 paragraph (5)(a), or paragraph (7)(b). 26 4. However, if the physician is a physician specified 27 in this subparagraph, the assessment is not applicable: 28 a. A resident physician, assistant resident physician, 29 or intern in an approved postgraduate training program, as 30 defined by the Board of Medicine or the Board of Osteopathic 31 Medicine by rule; 10 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 b. A retired physician who has withdrawn from the 2 practice of medicine but who maintains an active license as 3 evidenced by an affidavit filed with the Department of Health. 4 Prior to reentering the practice of medicine in this state, a 5 retired physician as herein defined must notify the Board of 6 Medicine or the Board of Osteopathic Medicine and pay the 7 appropriate assessments pursuant to this section; 8 c. A physician who holds a limited license pursuant to 9 s. 458.317 and who is not being compensated for medical 10 services; 11 d. A physician who is employed full time by the United 12 States Department of Veterans Affairs and whose practice is 13 confined to United States Department of Veterans Affairs 14 hospitals; or 15 e. A physician who is a member of the Armed Forces of 16 the United States and who meets the requirements of s. 17 456.024. 18 f. A physician who is employed full time by the State 19 of Florida and whose practice is confined to state-owned 20 correctional institutions, a county health department, or 21 state-owned mental health or developmental services 22 facilities, or who is employed full time by the Department of 23 Health. 24 (c) On or before December 1 of each year, beginning 25 January 1, 2003 1988, each physician licensed pursuant to 26 chapter 458 or chapter 459 who wishes to participate in the 27 Florida Birth-Related Neurological Injury Compensation Plan 28 and who otherwise qualifies as a participating physician under 29 ss. 766.301-766.316 shall pay an initial assessment of $5,000. 30 A physician shall be a participating physician for the entire 31 calendar year if such assessment is paid on or before January 11 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 31. However, if the physician is either a resident physician, 2 assistant resident physician, or intern in an approved 3 postgraduate training program, as defined by the Board of 4 Medicine or the Board of Osteopathic Medicine by rule, and is 5 supervised in accordance with program requirements established 6 by the Accreditation Council for Graduate Medical Education or 7 the American Osteopathic Association by a physician who is 8 participating in the plan, such resident physician, assistant 9 resident physician, or intern is deemed to be a participating 10 physician without the payment of the assessment. 11 Participating physicians also include any employee of the 12 board of trustees Regents who has paid the assessment required 13 by this paragraph and paragraph (5)(a), and any certified 14 nurse midwife supervised by such employee. Participating 15 physicians include any certified nurse midwife who has paid 50 16 percent of the physician assessment required by this paragraph 17 and paragraph (5)(a) and who is supervised by a participating 18 physician who has paid the assessment required by this 19 paragraph and paragraph (5)(a). Supervision for nurse midwives 20 shall require that the supervising physician will be easily 21 available and have a prearranged plan of treatment for 22 specified patient problems which the supervised certified 23 nurse midwife may carry out in the absence of any complicating 24 features. Any physician who elects to participate in such 25 plan on or after January 1, 1989, who was not a participating 26 physician at the time of such election to participate and who 27 otherwise qualifies as a participating physician under ss. 28 766.301-766.316 shall pay an additional initial assessment 29 equal to the most recent assessment made pursuant to this 30 paragraph, paragraph (5)(a), or paragraph (7)(b). 31 (d) Any hospital located in any county with a gross 12 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 population in excess of 1.1 million as of January 1, 2003, as 2 determined by the Agency for Health Care Administration, 3 pursuant to the Health Care Responsibility Act, may elect to 4 pay the fee for the participating physician and the certified 5 nurse midwife if the hospital first determines that the 6 primary motivating purpose for making such payment is to 7 ensure coverage for the hospital's patients under the 8 provisions of ss. 766.301-766.316, provided no hospital may 9 restrict any participating physician or nurse midwife, 10 directly or indirectly, from being on the staff of hospitals 11 other than the staff of the hospital making such payment. Each 12 hospital shall file with the association an affidavit setting 13 forth specifically the reasons why such hospital elected to 14 39ke such payment on behalf of each participating physician 15 and certified nurse midwife. The payments authorized pursuant 16 to this paragraph shall be in addition to the assessment set 17 forth in paragraph (5)(a). 18 19 (Redesignate subsequent sections.) 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 On page 8, line 30, after the semicolon, 25 26 insert: 27 amending s. 391.025, F.S.; including certain 28 infants as eligible individuals for certain 29 health services; amending s. 391.029, F.S.; 30 providing for financial eligibility under the 31 Children's Medical Services program for certain 13 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 infants; providing certain reimbursement and 2 funding requirements; amending s. 766.304, 3 F.S.; limiting certain awards under certain 4 circumstances; amending s. 766.305, F.S.; 5 deleting certain information required in a 6 petition; revising certain copying 7 requirements; specifying information required 8 to be provided by a claimant; specifying 9 confidentiality of certain information; 10 amending s. 766.309, F.S.; providing for 11 bifurcating certain proceedings under certain 12 circumstances; providing procedures; providing 13 authority to an administrative law judge for 14 certain actions; amending s. 766.31, F.S., 15 relating to administrative law judge awards for 16 birth-related neurological injuries; excluding 17 expenses for items or services received under 18 Medicaid; revising the amount of the death 19 benefit; limiting claimants' liability, in 20 specified circumstances, to expenses awarded 21 under this section; amending s. 766.314, F.S.; 22 redefining the term "infant delivered" to 23 exclude those delivered by employees or agents 24 of the board of trustees or in certain 25 hospitals; revising qualifications for 26 physician participation in the Florida 27 Birth-related Neurological Injury Compensation 28 Plan; providing for certain hospitals to pay 29 the fee for participation in the plan on behalf 30 of a participating physician or certified nurse 31 midwife; providing restrictions on such a 14 6:53 PM 04/28/03 s2750.hc02.0z
SENATE AMENDMENT Bill No. CS for SB 2750 Amendment No. ___ Barcode 231652 1 hospital; requiring the hospital to file 2 certain information; 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 15 6:53 PM 04/28/03 s2750.hc02.0z