HB 1497

1	A bill to be entitled
2	An act relating to long-term care civil enforcement;
3	amending s. 400.023, F.S.; clarifying liability of nursing
4	home facilities; requiring a certificate of counsel
5	certifying compliance with the requirement to serve a copy
6	of a complaint alleging a violation of rights with the
7	Agency for Health Care Administration; amending s.
8	400.0233, F.S.; providing definitions; authorizing
9	voluntary binding arbitration following presuit
10	investigation and mediation of claims; creating s.
11	400.02341, F.S.; providing legislative findings and
12	intent; providing for a plan consisting of presuit
13	investigation and arbitration to resolve nursing home
14	liability claims; providing requirements; creating s.
15	400.02342, F.S.; providing for voluntary binding
16	arbitration of claims for resident's rights violation or
17	negligence; providing exemptions; providing for
18	determination of damages by an arbitration panel after
19	mediation; providing evidentiary standards; providing
20	composition of the arbitration panel; providing
21	qualifications and compensation of arbitrators; specifying
22	terms and conditions for entering into arbitration;
23	requiring written consent of a defendant for arbitration
24	under certain circumstances; authorizing the Division of
25	Administrative Hearings to adopt rules; authorizing
26	imposition of certain sanctions under such rules; creating
27	s. 400.02343, F.S.; providing for arbitration to allocate
28	financial responsibility among multiple defendants;
29	providing for a separate binding arbitration proceeding;
30	providing for an arbitration panel; providing composition,
31	duties, and responsibilities of the arbitration panel;
32	requiring defendants to pay a proportionate share of the
33	economic and noneconomic damages awarded by the
34	arbitration panel; providing for joint and several
35	liability; providing for extinguishment of liability for
36	certain damages under certain circumstances; providing
37	certain defendants with an action for contribution against
38	any nonarbitrating defendant whose negligence contributed
39	to the injury; creating s. 400.02344, F.S.; specifying
40	effects of failure to offer or accept voluntary binding
41	arbitration; providing procedures; specifying effects of
42	rejection of an arbitration offer; providing limitations
43	on damages; providing for punitive damages; creating s.
44	400.02345, F.S.; authorizing a court to determine whether
45	a disputed claim is subject to voluntary arbitration;
46	providing for parties to determine whether to arbitrate
47	certain amended claims; creating s. 400.02346, F.S.;
48	providing for dissolution of the arbitration panel if
49	agreement cannot be reached; providing for the appointment
50	of new arbitrators; providing for conclusion of
51	arbitration proceedings under certain circumstances;
52	creating s. 400.02347, F.S.; requiring payment of an
53	arbitration award by the defendant or submittal of certain
54	disputes to arbitration; providing for accrual of
55	interest; creating s. 400.02348, F.S.; designating
56	arbitration awards and allocation of financial
57	responsibility as final agency action for certain
58	purposes; providing for appeal to the district court;
59	limiting judicial review; providing for enforcement of
60	arbitration awards by the parties to the arbitration;
61	providing for court orders to enforce such awards;
62	amending s. 400.141, F.S.; revising staffing criteria for
63	prohibiting nursing homes from accepting new admissions;
64	amending s. 400.23, F.S.; revising minimum staffing rule
65	requirements for nursing homes; amending s. 400.429, F.S.;
66	clarifying liability of assisted living facilities;
67	requiring a certificate of counsel certifying compliance
68	with the requirement to serve a copy of a complaint
69	alleging a violation of rights with the agency; amending
70	s. 400.4293, F.S.; providing definitions; authorizing
71	voluntary binding arbitration following presuit
72	investigation and mediation of claims; creating s.
73	400.42941, F.S.; providing legislative findings and
74	intent; providing for a plan consisting of presuit
75	investigation and arbitration to resolve assisted living
76	facility liability claims; providing requirements;
77	creating s. 400.42942, F.S.; providing for voluntary
78	binding arbitration of claims for resident's rights
79	violation or negligence; providing exemptions; providing
80	for determination of damages by an arbitration panel after
81	mediation; providing evidentiary standards; providing
82	composition of the arbitration panel; providing
83	qualifications and compensation of arbitrators; specifying
84	terms and conditions for entering into arbitration;
85	requiring written consent of a defendant for arbitration
86	under certain circumstances; authorizing the division to
87	adopt rules; authorizing imposition of certain sanctions
88	under such rules; creating s. 400.42943, F.S.; providing
89	for arbitration to allocate financial responsibility among
90	multiple defendants; providing for a separate binding
91	arbitration proceeding; providing for an arbitration
92	panel; providing composition, duties, and responsibilities
93	of the arbitration panel; requiring defendants to pay a
94	proportionate share of the economic and noneconomic
95	damages awarded by the arbitration panel; providing for
96	joint and several liability; providing for extinguishment
97	of liability for certain damages under certain
98	circumstances; providing certain defendants with an action
99	for contribution against any nonarbitrating defendant
100	whose negligence contributed to the injury; creating s.
101	400.42944, F.S.; specifying effects of failure to offer or
102	accept voluntary binding arbitration; providing
103	procedures; specifying effects of rejection of an
104	arbitration offer; providing limitations on damages;
105	providing for punitive damages; creating s. 400.42945,
106	F.S.; authorizing a court to determine whether a disputed
107	claim is subject to voluntary arbitration; providing for
108	parties to determine whether to arbitrate certain amended
109	claims; providing amendment procedures; creating s.
110	400.42946, F.S.; providing for dissolution of the
111	arbitration panel if agreement cannot be reached;
112	providing for the appointment of new arbitrators;
113	providing for conclusion of arbitration proceedings under
114	certain circumstances; creating s. 400.42947, F.S.;
115	requiring payment of an arbitration award by the defendant
116	or submittal of certain disputes to arbitration; providing
117	for accrual of interest; creating s. 400.42948, F.S.;
118	designating arbitration awards and allocation of financial
119	responsibility as final agency action for certain
120	purposes; providing for appeal to the district court;
121	limiting judicial review; providing for enforcement of
122	arbitration awards by the parties to the arbitration;
123	providing for court orders to enforce such awards;
124	providing an effective date.
125
126	Be It Enacted by the Legislature of the State of Florida:
127
128	Section 1.  Subsections (4) and (6) of section 400.023,
129	Florida Statutes, are amended to read:
130	400.023  Civil enforcement.--
131	(4)  A licensee shall be liable for In any claim for
132	resident's rights violation or negligence by a nurse licensed
133	under part I of chapter 464 and employed by the licensee. Nurses
134	providing nursing services, such nurse shall have the duty to
135	exercise care consistent with the prevailing professional
136	standard of care for nurses a nurse. The prevailing professional
137	standard of care for nurses a nurse shall be that level of care,
138	skill, and treatment which, in light of all relevant surrounding
139	circumstances, is recognized as acceptable and appropriate by
140	reasonably prudent similar nurses.
141	(6)  The resident or the resident's legal representative
142	shall serve a copy of any complaint alleging in whole or in part
143	a violation of any rights specified in this part to the Agency
144	for Health Care Administration at the time of filing the initial
145	complaint with the clerk of the court for the county in which
146	the action is pursued. The initial complaint shall contain a
147	certificate of counsel certifying compliance with this
148	subsection. The requirement of providing a copy of the complaint
149	to the agency and certifying compliance with this subsection
150	does not impair the resident's legal rights or ability to seek
151	relief for his or her claim.
152	Section 2.  Subsections (1) and (11) of section 400.0233,
153	Florida Statutes, are amended to read:
154	400.0233  Presuit notice; investigation; notification of
155	violation of resident's rights or alleged negligence; claims
156	evaluation procedure; informal discovery; review; settlement
157	offer; mediation.--
158	(1)  As used in this section and ss. 400.02341-400.02348,
159	the term:
160	(a)  "Claim for resident's rights violation or negligence"
161	means a negligence claim alleging injury to or the death of a
162	resident arising out of an asserted violation of the rights of a
163	resident under s. 400.022 or an asserted deviation from the
164	applicable standard of care.
165	(b)  "Collateral sources" means any payments made to the
166	claimant, or made on his or her behalf, by or pursuant to:
167	1.  The United States Social Security Act; any federal,
168	state, or local income disability act; or any other public
169	program providing medical expenses, disability payments, or
170	other similar benefits, except as prohibited by federal law.
171	2.  Any health, sickness, or income disability insurance;
172	automobile accident insurance that provides health benefits or
173	income disability coverage; and any other similar insurance
174	benefits, except life insurance benefits available to the
175	claimant, whether purchased by the claimant or provided by
176	others.
177	3.  Any contract or agreement of any group, organization,
178	partnership, or corporation to provide, pay for, or reimburse
179	the costs of hospital, medical, dental, or other health care
180	services.
181	4.  Any contractual or voluntary wage continuation plan
182	provided by employers or by any other system intended to provide
183	wages during a period of disability.
184	(c)  "Economic damages" means financial losses that would
185	not have occurred but for the injury giving rise to the cause of
186	action, including, but not limited to, past and future medical
187	expenses and 80 percent of wage loss and loss of earning
188	capacity.
189	(d)  "Incident" means all conduct that is alleged in the
190	notice of claim or complaint to have caused the injury or
191	damages to the resident.
192	(e)(b)  "Insurer" means any self-insurer authorized under
193	s. 627.357, liability insurance carrier, joint underwriting
194	association, or uninsured prospective defendant.
195	(f)  "Noneconomic damages" means nonfinancial losses that
196	would not have occurred but for the injury giving rise to the
197	cause of action, including, but not limited to, pain and
198	suffering, inconvenience, physical impairment, mental anguish,
199	disfigurement, loss of capacity for enjoyment of life, and other
200	nonfinancial losses.
201	(11)  Within 30 days after the claimant's receipt of the
202	defendant's response to the claim, the parties or their
203	designated representatives shall meet in mediation to discuss
204	the issues of liability and damages in accordance with the
205	mediation rules of practice and procedures adopted by the
206	Supreme Court. Upon stipulation of the parties, this 30-day
207	period may be extended and the statute of limitations is tolled
208	during the mediation and any such extension. At the conclusion
209	of mediation, the claimant shall have 60 days or the remainder
210	of the period of the statute of limitations, whichever is
211	greater, within which to enter into voluntary binding
212	arbitration under ss. 400.02341-400.02348 or to file suit.
213	Section 3.  Section 400.02341, Florida Statutes, is created
214	to read:
215	400.02341  Legislative findings and intent.--
216	(1)  The Legislature finds that:
217	(a)  Liability insurance premiums for nursing homes have
218	increased dramatically in recent years, resulting in increased
219	nursing home care costs for most residents and functional
220	unavailability of liability insurance for most nursing home
221	facilities.
222	(b)  The primary cause of increased liability insurance
223	premiums has been the substantial increase in loss payments to
224	claimants caused by tremendous increases in the amounts of paid
225	claims.
226	(c)  The average cost of defending a nursing home liability
227	claim has escalated in the past decade to the point where it has
228	become imperative to control such cost in the interest of the
229	public need for quality nursing home care.
230	(d)  The high cost of nursing home liability claims in the
231	state can be substantially alleviated by requiring early
232	determination of the merit of claims, by providing for early
233	arbitration of claims, thereby reducing delay and attorney's
234	fees, and by imposing reasonable limitations on damages, while
235	preserving the right of either party to have its case heard by a
236	jury.
237	(e)  The recovery of 100 percent of economic losses
238	constitutes overcompensation because such recovery fails to
239	recognize that such awards are not subject to taxes on economic
240	damages.
241	(f)  Excessive awards of noneconomic damages threaten the
242	ability of nursing home facilities to continue to provide
243	appropriate care for residents. A reasonable limitation on
244	noneconomic damages will reduce the high cost of claims without
245	jeopardizing the right of each party to be heard by a jury.
246	(2)  It is the intent of the Legislature to provide a plan
247	for prompt resolution of nursing home liability claims. Such
248	plan shall consist of two separate components: presuit
249	investigation and arbitration. Presuit investigation shall be
250	mandatory and shall apply to all nursing home liability claims
251	and defenses. Arbitration shall be voluntary and shall be
252	available except as otherwise provided in s. 400.02342.
253	(a)  Presuit investigation shall include verifiable
254	requirements that reasonable investigation precede both nursing
255	home liability claims and defenses in order to eliminate
256	frivolous claims and defenses.
257	(b)  Arbitration shall provide:
258	1.  Substantial incentives for both claimants and
259	defendants to submit their cases to binding arbitration, thus
260	reducing attorney's fees, litigation costs, and delay.
261	2.  A conditional limitation on noneconomic damages if the
262	defendant concedes willingness to pay economic damages and
263	reasonable attorney's fees.
264	3.  Limitations on the noneconomic damages components of
265	large awards to provide increased predictability of outcome of
266	the claims resolution process in order for insurers to
267	anticipate losses and to facilitate early resolution of
268	negligence claims.
269	Section 4.  Section 400.02342, Florida Statutes, is created
270	to read:
271	400.02342  Voluntary binding arbitration of claims for
272	resident's rights violation or negligence.--
273	(1)  Voluntary binding arbitration pursuant to this section
274	and ss. 400.02343-400.02348 does not apply to rights of action
275	involving the state or its agencies or subdivisions, or the
276	officers, employees, or agents thereof, pursuant to s. 768.28.
277	(2)  Upon the completion of mediation under s.
278	400.0233(11), the parties may elect, with respect only to claims
279	arising out of the rendering of, or the failure to render,
280	medical care or service, to have damages determined by an
281	arbitration panel. For purposes of arbitration under this
282	section and ss. 400.02343-400.02348, medical care or service
283	includes:
284	(a)  Skin care.
285	(b)  Mobility and walking assistance.
286	(c)  Nourishment.
287	(d)  Hydration.
288	(e)  Prevention of elopement.
289
290	Such election may be initiated by either party by serving a
291	request for voluntary binding arbitration of damages within 60
292	days after the conclusion of mediation or the remainder of the
293	period of the statute of limitations, whichever is greater. The
294	evidentiary standards for voluntary binding arbitration of
295	claims arising out of the rendering of, or the failure to
296	render, medical care or service shall be as provided in ss.
297	120.569(2)(g) and 120.57(1)(c).
298	(3)  Upon receipt of a party's request for such
299	arbitration, the opposing party may accept the offer of
300	voluntary binding arbitration within 30 days. Such acceptance
301	within the time period provided by this subsection shall be a
302	binding commitment to comply with the decision of the
303	arbitration panel. The liability of any insurer shall be subject
304	to any applicable insurance policy limits.
305	(4)  The arbitration panel shall be composed of three
306	arbitrators, one selected by the claimant, one selected by the
307	defendant, and one administrative law judge furnished by the
308	Division of Administrative Hearings who shall serve as the chief
309	arbitrator. In the event of multiple claimants or multiple
310	defendants, the arbitrator selected by the side with multiple
311	parties shall be the choice of those parties. If the multiple
312	parties cannot reach agreement as to an arbitrator, each of the
313	multiple parties shall submit a nominee, and the director of the
314	Division of Administrative Hearings shall appoint the arbitrator
315	from among such nominees.
316	(5)  The arbitrators shall be independent of all parties,
317	witnesses, and legal counsel, and no officer, director,
318	affiliate, subsidiary, or employee of a party, witness, or legal
319	counsel may serve as an arbitrator in the proceeding.
320	(6)  The rate of compensation for arbitrators other than
321	the administrative law judge shall be set by the chief judge of
322	the appropriate circuit court by schedule, providing for
323	compensation of not less than $250 per day nor more than $750
324	per day or as agreed to by the parties. In setting the schedule,
325	the chief judge shall consider the prevailing rates charged for
326	the delivery of professional services in the community.
327	(7)  Arbitration pursuant to this section shall preclude
328	recourse to any other remedy by the claimant against any
329	participating defendant and shall be undertaken with the
330	understanding that:
331	(a)  The defendant has made an offer of admission of
332	liability and for arbitration on the issue of damages. This
333	offer may be made contingent upon a limit of general damages.
334	(b)  Net economic damages shall be awardable, including,
335	but not limited to, past and future medical expenses and 80
336	percent of wage loss and loss of earning capacity, offset by any
337	collateral source payments made prior to the arbitration award.
338	(c)  Noneconomic damages shall be limited to a maximum of
339	$250,000 per incident. If the claimant's care has been provided
340	in all or in part by Medicaid, the award shall first pay the
341	Medicaid program those amounts expended for the claimant's care,
342	and the Medicaid program shall have a lien against the award for
343	any future payments that would be paid by Medicaid.
344	(d)  Punitive damages may not be awarded.
345	(e)  The defendant shall be responsible for the payment of
346	interest on all accrued damages with respect to which interest
347	would be awarded at trial.
348	(f)  The defendant shall pay the claimant's reasonable
349	attorney's fees and costs, as determined by the arbitration
350	panel, but in no event more than 15 percent of the award,
351	reduced to present value.
352	(g)  The defendant shall pay all the costs of the
353	arbitration proceeding and the fees of all the arbitrators other
354	than the administrative law judge.
355	(h)  Each defendant who submits to arbitration under this
356	section shall be jointly and severally liable for all damages
357	assessed pursuant to this section.
358	(i)  The defendant's obligation to pay the claimant's
359	damages shall be for the purpose of arbitration under this
360	section only. A defendant's or claimant's offer to arbitrate
361	shall not be used in evidence or in argument during any
362	subsequent litigation of the claim following the rejection
363	thereof.
364	(j)  The fact of making or accepting an offer to arbitrate
365	shall not be admissible as evidence of liability in any
366	collateral or subsequent proceeding on the claim.
367	(k)  Any offer by a claimant to arbitrate must be made to
368	each defendant against whom the claimant has made a claim. Any
369	offer by a defendant to arbitrate must be made to each claimant.
370	A defendant who rejects a claimant's offer to arbitrate shall be
371	subject to the provisions of s. 400.02344(3). A claimant who
372	rejects a defendant's offer to arbitrate shall be subject to the
373	provisions of s. 400.02344(4).
374	(l)  The hearing shall be conducted by all of the
375	arbitrators, but a majority may determine any question of fact
376	and render a final decision. The chief arbitrator shall decide
377	all evidentiary matters. The chief arbitrator shall file a copy
378	of the final decision with the clerk of the Agency for Health
379	Care Administration.
380
381	The provisions of this subsection shall not preclude settlement
382	at any time by mutual agreement of the parties.
383	(8)  Any issue between the defendant and the defendant's
384	insurer or self-insurer as to who shall control the defense of
385	the claim and any responsibility for payment of an arbitration
386	award shall be determined under existing principles of law;
387	however, the insurer or self-insurer shall not offer to
388	arbitrate or accept a claimant's offer to arbitrate without the
389	written consent of the defendant.
390	(9)  The Division of Administrative Hearings may adopt
391	rules to effect the orderly and efficient processing of the
392	arbitration procedures of this section and ss. 400.02343-
393	400.02348.
394	(10)  Rules adopted by the Division of Administrative
395	Hearings pursuant to this section, s. 120.54, or s. 120.65 may
396	authorize any reasonable sanctions except contempt for violation
397	of the rules of the division or failure to comply with a
398	reasonable order issued by an administrative law judge, which is
399	not under judicial review.
400	Section 5.  Section 400.02343, Florida Statutes, is created
401	to read:
402	400.02343  Arbitration to allocate financial responsibility
403	among multiple defendants.--
404	(1)  The provisions of this section shall apply when more
405	than one defendant has participated in voluntary binding
406	arbitration pursuant to s. 400.02342.
407	(2)  Within 20 days after the determination of damages by
408	the arbitration panel in the first arbitration proceeding, those
409	defendants who have agreed to voluntary binding arbitration
410	shall submit any dispute among them regarding the apportionment
411	of financial responsibility to a separate binding arbitration
412	proceeding. Such proceeding shall be with a panel of three
413	arbitrators, which panel shall consist of the administrative law
414	judge who presided in the first arbitration proceeding, who
415	shall serve as the chief arbitrator, and two nursing home
416	administrators appointed by the defendants. If the defendants
417	cannot agree on their selection of arbitrators within 20 days
418	after the determination of damages by the arbitration panel in
419	the first arbitration proceeding, a list of not more than five
420	nominees shall be submitted by each defendant to the director of
421	the Division of Administrative Hearings, who shall select the
422	other arbitrators but shall not select more than one from the
423	list of nominees of any defendant.
424	(3)  The administrative law judge appointed to serve as the
425	chief arbitrator shall convene the arbitrators for the purpose
426	of determining allocation of responsibility among multiple
427	defendants within 65 days after the determination of damages by
428	the arbitration panel in the first arbitration proceeding.
429	(4)  The arbitration panel shall allocate financial
430	responsibility among all defendants named in the notice of an
431	asserted violation of a resident's rights or deviation from the
432	standard of care, regardless of whether the defendant has
433	submitted to arbitration. The defendants in the arbitration
434	proceeding shall pay their proportionate share of the economic
435	and noneconomic damages awarded by the arbitration panel. All
436	defendants in the arbitration proceeding shall be jointly and
437	severally liable for any damages assessed in arbitration. The
438	determination of the percentage of fault of any defendant not in
439	the arbitration case shall not be binding against that
440	defendant, nor shall it be admissible in any subsequent legal
441	proceeding.
442	(5)  Payment by the defendants of the damages awarded by
443	the arbitration panel in the first arbitration proceeding shall
444	extinguish the liability of such defendants to the claimant and
445	shall also extinguish the liability of such defendants for
446	contribution to any defendants who did not participate in
447	arbitration.
448	(6)  Any defendant paying damages assessed pursuant to this
449	section or s. 400.02342 shall have an action for contribution
450	against any defendant who did not participate in the voluntary
451	arbitration and whose negligence contributed to the injury.
452	Section 6.  Section 400.02344, Florida Statutes, is created
453	to read:
454	400.02344  Effects of failure to offer or accept voluntary
455	binding arbitration.--
456	(1)  A proceeding for voluntary binding arbitration is an
457	alternative to jury trial and shall not supersede the right of
458	any party to a jury trial.
459	(2)  If neither party requests or agrees to voluntary
460	binding arbitration, the claim shall proceed to trial or to any
461	available legal alternative such as offer of and demand for
462	judgment under s. 768.79 or offer of settlement under s. 45.061.
463	(3)  If the defendant rejects a claimant's offer to enter
464	voluntary binding arbitration:
465	(a)  The claim shall proceed to trial without limitation on
466	damages, and the claimant, upon proving violation of a
467	resident's rights or negligence, shall be entitled to recover
468	prejudgment interest and reasonable attorney's fees up to 25
469	percent of the award, reduced to present value.
470	(b)  The claimant's award at trial shall be reduced by any
471	damages recovered by the claimant from arbitrating codefendants
472	following arbitration.
473	(4)  If the claimant rejects a defendant's offer to enter
474	voluntary binding arbitration:
475	(a)  The damages awardable at trial shall be limited to net
476	economic damages, plus noneconomic damages not to exceed
477	$350,000 per incident. The Legislature expressly finds that such
478	conditional limit on noneconomic damages is warranted by the
479	claimant's refusal to accept arbitration and represents an
480	appropriate balance between the interests of all residents who
481	ultimately pay for rights and negligence losses and the
482	interests of those residents who are injured as a result of
483	negligence and violations of rights.
484	(b)  Net economic damages reduced to present value shall be
485	awardable, including, but not limited to, past and future
486	medical expenses and 80 percent of wage loss and loss of earning
487	capacity, offset by any collateral source payments.
488	(c)  If the claimant's care has been provided in all or in
489	part by Medicaid, the award shall first pay the Medicaid program
490	those amounts expended for the claimant's care, and the Medicaid
491	program shall have a lien against the award for any future
492	payments that would be paid by Medicaid.
493	(5)  Punitive damages may be awarded pursuant to ss.
494	400.0237 and 400.0238.
495	(6)  A jury trial shall proceed in accordance with existing
496	principles of law.
497	Section 7.  Section 400.02345, Florida Statutes, is created
498	to read:
499	400.02345  Determination of whether claim is subject to
500	arbitration.--
501	(1)  In the event of a dispute, a court of competent
502	jurisdiction may determine whether the claim is subject to the
503	voluntary arbitration provisions of ss. 400.02342-400.02348.
504	(2)  If a plaintiff, at any time, amends a complaint to
505	allege facts that render a claim subject to arbitration under
506	ss. 400.02342-400.02348, the parties shall have 30 days to
507	determine whether to arbitrate that claim voluntarily. The
508	procedural limitations imposed on the parties under ss.
509	400.02342-400.02348 shall apply if the case proceeds to trial.
510	Section 8.  Section 400.02346, Florida Statutes, is created
511	to read:
512	400.02346  Misarbitration.--
513	(1)  At any time during the course of voluntary binding
514	arbitration of a claim arising out of the rendering of, or the
515	failure to render, medical care or service pursuant to s.
516	400.02342, the administrative law judge serving as chief
517	arbitrator on the arbitration panel, if he or she determines
518	that agreement cannot be reached, may dissolve the arbitration
519	panel and request the director of the Division of Administrative
520	Hearings to appoint two new arbitrators from lists of three to
521	five names timely provided by each party to the arbitration. Not
522	more than one arbitrator shall be appointed from the list
523	provided by any party unless only one list is timely filed.
524	(2)  Upon appointment of the new arbitrators, arbitration
525	shall proceed at the direction of the chief arbitrator in
526	accordance with the provisions of ss. 400.02342-400.02348.
527	(3)  At any time after the allocation arbitration hearing
528	under s. 400.02343 has concluded, the administrative law judge
529	serving as chief arbitrator on the arbitration panel may
530	dissolve the arbitration panel and declare the proceedings
531	concluded if he or she determines that agreement cannot be
532	reached.
533	Section 9.  Section 400.02347, Florida Statutes, is created
534	to read:
535	400.02347  Payment of arbitration award; interest.--
536	(1)  Within 20 days after the determination of damages by
537	the arbitration panel pursuant to s. 400.02342, the defendant
538	shall:
539	(a)  Pay the arbitration award, including interest at the
540	legal rate, to the claimant; or
541	(b)  Submit any dispute among multiple defendants to
542	arbitration pursuant to s. 400.02343.
543	(2)  Commencing 90 days after the award rendered in the
544	arbitration procedure pursuant to s. 400.02342, such award shall
545	begin to accrue interest at the rate of 18 percent per year.
546	Section 10.  Section 400.02348, Florida Statutes, is
547	created to read:
548	400.02348  Appeal of arbitration awards and allocations of
549	financial responsibility.--
550	(1)  An arbitration award and an allocation of financial
551	responsibility are final agency action for purposes of s.
552	120.68. Any appeal shall be taken to the district court of
553	appeal for the district in which the arbitration took place,
554	shall be limited to review of the record, and shall otherwise
555	proceed in accordance with s. 120.68. The amount of an
556	arbitration award or an order allocating financial
557	responsibility, the evidence in support of either, and the
558	procedure by which either is determined are subject to judicial
559	scrutiny only in a proceeding instituted pursuant to this
560	subsection.
561	(2)  No appeal shall operate to stay an arbitration award,
562	nor shall any arbitration panel, arbitration panel member, or
563	circuit court stay an arbitration award. The district court of
564	appeal may order a stay to prevent manifest injustice, but no
565	court shall abrogate the provisions of s. 400.02347(2).
566	(3)  Any party to an arbitration proceeding may enforce an
567	arbitration award or an allocation of financial responsibility
568	by filing a petition in the circuit court for the circuit in
569	which the arbitration took place. A petition may not be granted
570	unless the time for appeal has expired. If an appeal has been
571	taken, a petition may not be granted with respect to an
572	arbitration award or an allocation of financial responsibility
573	that has been stayed.
574	(4)  If the petitioner establishes the authenticity of the
575	arbitration award or of the allocation of financial
576	responsibility, shows that the time for appeal has expired, and
577	demonstrates that no stay is in place, the court shall enter
578	such orders and judgments as are required to carry out the terms
579	of the arbitration award or allocation of financial
580	responsibility. Such orders are enforceable by the contempt
581	powers of the court, and execution shall issue upon the request
582	of a party for such judgment.
583	Section 11.  Paragraphs (d), (e), and (f) of subsection
584	(15) of section 400.141, Florida Statutes, are amended to read:
585	400.141  Administration and management of nursing home
586	facilities.--Every licensed facility shall comply with all
587	applicable standards and rules of the agency and shall:
588	(15)  Submit semiannually to the agency, or more frequently
589	if requested by the agency, information regarding facility
590	staff-to-resident ratios, staff turnover, and staff stability,
591	including information regarding certified nursing assistants,
592	licensed nurses, the director of nursing, and the facility
593	administrator. For purposes of this reporting:
594	(d)  A nursing facility that has failed to comply with 97
595	percent of the state minimum-staffing requirements for 2
596	consecutive days is prohibited from accepting new admissions
597	until the facility has achieved the minimum-staffing
598	requirements for a period of 6 consecutive days. For the
599	purposes of this paragraph, any person who was a resident of the
600	facility and was absent from the facility for the purpose of
601	receiving medical care at a separate location or was on a leave
602	of absence is not considered a new admission. Failure to impose
603	such an admissions moratorium constitutes a class II deficiency.
604	(e)  A nursing facility that which does not have a
605	conditional license may be cited for failure to comply with the
606	standards in s. 400.23(3)(a) only if it has failed to meet those
607	standards on 2 consecutive days or if it has failed to meet at
608	least 97 percent of those standards on any one day.
609	(f)  A facility that which has a conditional license must
610	be in compliance with the standards in s. 400.23(3)(a) at all
611	times.
612
613	Nothing in this section shall limit the agency's ability to
614	impose a deficiency or take other actions if a facility does not
615	have enough staff to meet the residents' needs.
616
617	Facilities that have been awarded a Gold Seal under the program
618	established in s. 400.235 may develop a plan to provide
619	certified nursing assistant training as prescribed by federal
620	regulations and state rules and may apply to the agency for
621	approval of their program.
622	Section 12.  Paragraph (a) of subsection (3) of section
623	400.23, Florida Statutes, is amended to read:
624	400.23  Rules; evaluation and deficiencies; licensure
625	status.--
626	(3)(a)  The agency shall adopt rules providing for the
627	minimum staffing requirements for nursing homes. These
628	requirements shall include, for each nursing home facility, a
629	minimum certified nursing assistant staffing of 2.3 hours of
630	direct care per resident per day beginning January 1, 2002,
631	increasing to 2.6 hours of direct care per resident per day
632	beginning January 1, 2003, and increasing to 2.9 hours of direct
633	care per resident per day beginning May 1, 2004. Beginning
634	January 1, 2002, no facility shall staff below one certified
635	nursing assistant per 20 residents, and a minimum licensed
636	nursing staffing of 1.0 hour of direct resident care per
637	resident per day but never below one licensed nurse per 40
638	residents, except during the night shift when one licensed nurse
639	per 60 residents shall apply. Nursing assistants employed never
640	below one licensed nurse per 40 residents. Nursing assistants
641	employed under s. 400.211(2) may be included in computing the
642	staffing ratio for certified nursing assistants only if they
643	provide nursing assistance services to residents on a full-time
644	basis. Each nursing home must document compliance with staffing
645	standards as required under this paragraph and post daily the
646	names of staff on duty for the benefit of facility residents and
647	the public. The agency shall recognize the use of licensed
648	nurses for compliance with minimum staffing requirements for
649	certified nursing assistants, provided that the facility
650	otherwise meets the minimum staffing requirements for licensed
651	nurses and that the licensed nurses so recognized are performing
652	the duties of a certified nursing assistant. Unless otherwise
653	approved by the agency, licensed nurses counted towards the
654	minimum staffing requirements for certified nursing assistants
655	must exclusively perform the duties of a certified nursing
656	assistant for the entire shift and shall not also be counted
657	towards the minimum staffing requirements for licensed nurses.
658	If the agency approved a facility's request to use a licensed
659	nurse to perform both licensed nursing and certified nursing
660	assistant duties, the facility must allocate the amount of staff
661	time specifically spent on certified nursing assistant duties
662	for the purpose of documenting compliance with minimum staffing
663	requirements for certified and licensed nursing staff. In no
664	event may the hours of a licensed nurse with dual job
665	responsibilities be counted twice.
666	Section 13.  Subsections (4) and (7) of section 400.429,
667	Florida Statutes, are amended to read:
668	400.429  Civil actions to enforce rights.--
669	(4)  A licensee shall be liable for In any claim for
670	resident's rights violation or negligence by a nurse licensed
671	under part I of chapter 464 and employed by the licensee. Nurses
672	providing nursing services, such nurse shall have the duty to
673	exercise care consistent with the prevailing professional
674	standard of care for nurses a nurse. The prevailing professional
675	standard of care for nurses a nurse shall be that level of care,
676	skill, and treatment which, in light of all relevant surrounding
677	circumstances, is recognized as acceptable and appropriate by
678	reasonably prudent similar nurses.
679	(7)  The resident or the resident's legal representative
680	shall serve a copy of any complaint alleging in whole or in part
681	a violation of any rights specified in this part to the Agency
682	for Health Care Administration at the time of filing the initial
683	complaint with the clerk of the court for the county in which
684	the action is pursued. The initial complaint shall contain a
685	certificate of counsel certifying compliance with this
686	subsection. The requirement of providing a copy of the complaint
687	to the agency and certifying compliance with this subsection
688	does not impair the resident's legal rights or ability to seek
689	relief for his or her claim.
690	Section 14.  Subsections (1) and (11) of section 400.4293,
691	Florida Statutes, are amended to read:
692	400.4293  Presuit notice; investigation; notification of
693	violation of residents' rights or alleged negligence; claims
694	evaluation procedure; informal discovery; review; settlement
695	offer; mediation.--
696	(1)  As used in this section and ss. 400.42941-400.42948,
697	the term:
698	(a)  "Claim for residents' rights violation or negligence"
699	means a negligence claim alleging injury to or the death of a
700	resident arising out of an asserted violation of the rights of a
701	resident under s. 400.428 or an asserted deviation from the
702	applicable standard of care.
703	(b)  "Collateral sources" means any payments made to the
704	claimant, or made on his or her behalf, by or pursuant to:
705	1.  The United States Social Security Act; any federal,
706	state, or local income disability act; or any other public
707	program providing medical expenses, disability payments, or
708	other similar benefits, except as prohibited by federal law.
709	2.  Any health, sickness, or income disability insurance;
710	automobile accident insurance that provides health benefits or
711	income disability coverage; and any other similar insurance
712	benefits, except life insurance benefits available to the
713	claimant, whether purchased by the claimant or provided by
714	others.
715	3.  Any contract or agreement of any group, organization,
716	partnership, or corporation to provide, pay for, or reimburse
717	the costs of hospital, medical, dental, or other health care
718	services.
719	4.  Any contractual or voluntary wage continuation plan
720	provided by employers or by any other system intended to provide
721	wages during a period of disability.
722	(c)  "Economic damages" means financial losses that would
723	not have occurred but for the injury giving rise to the cause of
724	action, including, but not limited to, past and future medical
725	expenses and 80 percent of wage loss and loss of earning
726	capacity.
727	(d)  "Incident" means all conduct that is alleged in the
728	notice of claim or complaint to have caused the injury or
729	damages to the resident.
730	(e)(b)  "Insurer" means any self-insurer authorized under
731	s. 627.357, liability insurance carrier, joint underwriting
732	association, or uninsured prospective defendant.
733	(f)  "Noneconomic damages" means nonfinancial losses that
734	would not have occurred but for the injury giving rise to the
735	cause of action, including, but not limited to, pain and
736	suffering, inconvenience, physical impairment, mental anguish,
737	disfigurement, loss of capacity for enjoyment of life, and other
738	nonfinancial losses.
739	(11)  Within 30 days after the claimant's receipt of
740	defendant's response to the claim, the parties or their
741	designated representatives shall meet in mediation to discuss
742	the issues of liability and damages in accordance with the
743	mediation rules of practice and procedures adopted by the
744	Supreme Court. Upon stipulation of the parties, this 30-day
745	period may be extended and the statute of limitations is tolled
746	during the mediation and any such extension. At the conclusion
747	of mediation, the claimant shall have 60 days or the remainder
748	of the period of the statute of limitations, whichever is
749	greater, within which to enter into voluntary binding
750	arbitration under ss. 400.42941-400.42948 or to file suit.
751	Section 15.  Section 400.42941, Florida Statutes, is
752	created to read:
753	400.42941  Legislative findings and intent.--
754	(1)  The Legislature finds that:
755	(a)  Liability insurance premiums for assisted living
756	facilities have increased dramatically in recent years,
757	resulting in increased assisted living facility care costs for
758	most residents and functional unavailability of liability
759	insurance for most assisted living facilities.
760	(b)  The primary cause of increased liability insurance
761	premiums has been the substantial increase in loss payments to
762	claimants caused by tremendous increases in the amounts of paid
763	claims.
764	(c)  The average cost of defending an assisted living
765	facility liability claim has escalated in the past decade to the
766	point where it has become imperative to control such cost in the
767	interest of the public need for quality assisted living facility
768	care.
769	(d)  The high cost of assisted living facility liability
770	claims in the state can be substantially alleviated by requiring
771	early determination of the merit of claims, by providing for
772	early arbitration of claims, thereby reducing delay and
773	attorney's fees, and by imposing reasonable limitations on
774	damages, while preserving the right of either party to have its
775	case heard by a jury.
776	(e)  The recovery of 100 percent of economic losses
777	constitutes overcompensation because such recovery fails to
778	recognize that such awards are not subject to taxes on economic
779	damages.
780	(f)  Excessive awards of noneconomic damages threaten the
781	ability of assisted living facilities to continue to provide
782	appropriate care for residents. A reasonable limitation on
783	noneconomic damages will reduce the high cost of claims without
784	jeopardizing the right of each party to be heard by a jury.
785	(2)  It is the intent of the Legislature to provide a plan
786	for prompt resolution of assisted living facility liability
787	claims. Such plan shall consist of two separate components:
788	presuit investigation and arbitration. Presuit investigation
789	shall be mandatory and shall apply to all assisted living
790	facility liability claims and defenses. Arbitration shall be
791	voluntary and shall be available except as otherwise provided in
792	s. 400.42942.
793	(a)  Presuit investigation shall include verifiable
794	requirements that reasonable investigation precede both assisted
795	living facility liability claims and defenses in order to
796	eliminate frivolous claims and defenses.
797	(b)  Arbitration shall provide:
798	1.  Substantial incentives for both claimants and
799	defendants to submit their cases to binding arbitration, thus
800	reducing attorney's fees, litigation costs, and delay.
801	2.  A conditional limitation on noneconomic damages if the
802	defendant concedes willingness to pay economic damages and
803	reasonable attorney's fees.
804	3.  Limitations on the noneconomic damages components of
805	large awards to provide increased predictability of outcome of
806	the claims resolution process in order for insurers to
807	anticipate losses and to facilitate early resolution of
808	negligence claims.
809	Section 16.  Section 400.42942, Florida Statutes, is
810	created to read:
811	400.42942  Voluntary binding arbitration of claims for
812	resident's rights violation or negligence.--
813	(1)  Voluntary binding arbitration pursuant to this section
814	and ss. 400.42943-400.42948 does not apply to rights of action
815	involving the state or its agencies or subdivisions, or the
816	officers, employees, or agents thereof, pursuant to s. 768.28.
817	(2)  Upon the completion of mediation under s.
818	400.4293(11), the parties may elect, with respect only to claims
819	arising out of the rendering of, or the failure to render,
820	medical care or service, to have damages determined by an
821	arbitration panel. For purposes of arbitration under this
822	section and ss. 400.42943-400.42948, medical care or service
823	includes:
824	(a)  Skin care.
825	(b)  Mobility and walking assistance.
826	(c)  Nourishment.
827	(d)  Hydration.
828	(e)  Prevention of elopement.
829
830	Such election may be initiated by either party by serving a
831	request for voluntary binding arbitration of damages within 60
832	days after the conclusion of mediation or the remainder of the
833	period of the statute of limitations, whichever is greater. The
834	evidentiary standards for voluntary binding arbitration of
835	claims arising out of the rendering of, or the failure to
836	render, medical care or service shall be as provided in ss.
837	120.569(2)(g) and 120.57(1)(c).
838	(3)  Upon receipt of a party's request for such
839	arbitration, the opposing party may accept the offer of
840	voluntary binding arbitration within 30 days. Such acceptance
841	within the time period provided by this subsection shall be a
842	binding commitment to comply with the decision of the
843	arbitration panel. The liability of any insurer shall be subject
844	to any applicable insurance policy limits.
845	(4)  The arbitration panel shall be composed of three
846	arbitrators, one selected by the claimant, one selected by the
847	defendant, and one administrative law judge furnished by the
848	Division of Administrative Hearings who shall serve as the chief
849	arbitrator. In the event of multiple claimants or multiple
850	defendants, the arbitrator selected by the side with multiple
851	parties shall be the choice of those parties. If the multiple
852	parties cannot reach agreement as to an arbitrator, each of the
853	multiple parties shall submit a nominee, and the director of the
854	Division of Administrative Hearings shall appoint the arbitrator
855	from among such nominees.
856	(5)  The arbitrators shall be independent of all parties,
857	witnesses, and legal counsel, and no officer, director,
858	affiliate, subsidiary, or employee of a party, witness, or legal
859	counsel may serve as an arbitrator in the proceeding.
860	(6)  The rate of compensation for arbitrators other than
861	the administrative law judge shall be set by the chief judge of
862	the appropriate circuit court by schedule, providing for
863	compensation of not less than $250 per day nor more than $750
864	per day or as agreed to by the parties. In setting the schedule,
865	the chief judge shall consider the prevailing rates charged for
866	the delivery of professional services in the community.
867	(7)  Arbitration pursuant to this section shall preclude
868	recourse to any other remedy by the claimant against any
869	participating defendant and shall be undertaken with the
870	understanding that:
871	(a)  The defendant has made an offer of admission of
872	liability and for arbitration on the issue of damages. This
873	offer may be made contingent upon a limit of general damages.
874	(b)  Net economic damages shall be awardable, including,
875	but not limited to, past and future medical expenses and 80
876	percent of wage loss and loss of earning capacity, offset by any
877	collateral source payments made prior to the arbitration award.
878	(c)  Noneconomic damages shall be limited to a maximum of
879	$250,000 per incident. If the claimant's care has been provided
880	in all or in part by Medicaid, the award shall first pay the
881	Medicaid program those amounts expended for the claimant's care,
882	and the Medicaid program shall have a lien against the award for
883	any future payments that would be paid by Medicaid.
884	(d)  Punitive damages may not be awarded.
885	(e)  The defendant shall be responsible for the payment of
886	interest on all accrued damages with respect to which interest
887	would be awarded at trial.
888	(f)  The defendant shall pay the claimant's reasonable
889	attorney's fees and costs, as determined by the arbitration
890	panel, but in no event more than 15 percent of the award,
891	reduced to present value.
892	(g)  The defendant shall pay all the costs of the
893	arbitration proceeding and the fees of all the arbitrators other
894	than the administrative law judge.
895	(h)  Each defendant who submits to arbitration under this
896	section shall be jointly and severally liable for all damages
897	assessed pursuant to this section.
898	(i)  The defendant's obligation to pay the claimant's
899	damages shall be for the purpose of arbitration under this
900	section only. A defendant's or claimant's offer to arbitrate
901	shall not be used in evidence or in argument during any
902	subsequent litigation of the claim following the rejection
903	thereof.
904	(j)  The fact of making or accepting an offer to arbitrate
905	shall not be admissible as evidence of liability in any
906	collateral or subsequent proceeding on the claim.
907	(k)  Any offer by a claimant to arbitrate must be made to
908	each defendant against whom the claimant has made a claim. Any
909	offer by a defendant to arbitrate must be made to each claimant.
910	A defendant who rejects a claimant's offer to arbitrate shall be
911	subject to the provisions of s. 400.42944(3). A claimant who
912	rejects a defendant's offer to arbitrate shall be subject to the
913	provisions of s. 400.42944(4).
914	(l)  The hearing shall be conducted by all of the
915	arbitrators, but a majority may determine any question of fact
916	and render a final decision. The chief arbitrator shall decide
917	all evidentiary matters. The chief arbitrator shall file a copy
918	of the final decision with the clerk of the Agency for Health
919	Care Administration.
920
921	The provisions of this subsection shall not preclude settlement
922	at any time by mutual agreement of the parties.
923	(8)  Any issue between the defendant and the defendant's
924	insurer or self-insurer as to who shall control the defense of
925	the claim and any responsibility for payment of an arbitration
926	award shall be determined under existing principles of law;
927	however, the insurer or self-insurer shall not offer to
928	arbitrate or accept a claimant's offer to arbitrate without the
929	written consent of the defendant.
930	(9)  The Division of Administrative Hearings may adopt
931	rules to effect the orderly and efficient processing of the
932	arbitration procedures of this section and ss. 400.42943-
933	400.42948.
934	(10)  Rules adopted by the Division of Administrative
935	Hearings pursuant to this section, s. 120.54, or s. 120.65 may
936	authorize any reasonable sanctions except contempt for violation
937	of the rules of the division or failure to comply with a
938	reasonable order issued by an administrative law judge, which is
939	not under judicial review.
940	Section 17.  Section 400.42943, Florida Statutes, is
941	created to read:
942	400.42943  Arbitration to allocate financial responsibility
943	among multiple defendants.--
944	(1)  The provisions of this section shall apply when more
945	than one defendant has participated in voluntary binding
946	arbitration pursuant to s. 400.42942.
947	(2)  Within 20 days after the determination of damages by
948	the arbitration panel in the first arbitration proceeding, those
949	defendants who have agreed to voluntary binding arbitration
950	shall submit any dispute among them regarding the apportionment
951	of financial responsibility to a separate binding arbitration
952	proceeding. Such proceeding shall be with a panel of three
953	arbitrators, which panel shall consist of the administrative law
954	judge who presided in the first arbitration proceeding, who
955	shall serve as the chief arbitrator, and two assisted living
956	facility administrators appointed by the defendants. If the
957	defendants cannot agree on their selection of arbitrators within
958	20 days after the determination of damages by the arbitration
959	panel in the first arbitration proceeding, a list of not more
960	than five nominees shall be submitted by each defendant to the
961	director of the Division of Administrative Hearings, who shall
962	select the other arbitrators but shall not select more than one
963	from the list of nominees of any defendant.
964	(3)  The administrative law judge appointed to serve as the
965	chief arbitrator shall convene the arbitrators for the purpose
966	of determining allocation of responsibility among multiple
967	defendants within 65 days after the determination of damages by
968	the arbitration panel in the first arbitration proceeding.
969	(4)  The arbitration panel shall allocate financial
970	responsibility among all defendants named in the notice of an
971	asserted violation of a resident's rights or deviation from the
972	standard of care, regardless of whether the defendant has
973	submitted to arbitration. The defendants in the arbitration
974	proceeding shall pay their proportionate share of the economic
975	and noneconomic damages awarded by the arbitration panel. All
976	defendants in the arbitration proceeding shall be jointly and
977	severally liable for any damages assessed in arbitration. The
978	determination of the percentage of fault of any defendant not in
979	the arbitration case shall not be binding against that
980	defendant, nor shall it be admissible in any subsequent legal
981	proceeding.
982	(5)  Payment by the defendants of the damages awarded by
983	the arbitration panel in the first arbitration proceeding shall
984	extinguish the liability of such defendants to the claimant and
985	shall also extinguish the liability of such defendants for
986	contribution to any defendants who did not participate in
987	arbitration.
988	(6)  Any defendant paying damages assessed pursuant to this
989	section or s. 400.42942 shall have an action for contribution
990	against any defendant who did not participate in the voluntary
991	arbitration and whose negligence contributed to the injury.
992	Section 18.  Section 400.42944, Florida Statutes, is
993	created to read:
994	400.42944  Effects of failure to offer or accept voluntary
995	binding arbitration.--
996	(1)  A proceeding for voluntary binding arbitration is an
997	alternative to jury trial and shall not supersede the right of
998	any party to a jury trial.
999	(2)  If neither party requests or agrees to voluntary
1000	binding arbitration, the claim shall proceed to trial or to any
1001	available legal alternative such as offer of and demand for
1002	judgment under s. 768.79 or offer of settlement under s. 45.061.
1003	(3)  If the defendant rejects a claimant's offer to enter
1004	voluntary binding arbitration:
1005	(a)  The claim shall proceed to trial without limitation on
1006	damages, and the claimant, upon proving violation of a
1007	resident's rights or negligence, shall be entitled to recover
1008	prejudgment interest and reasonable attorney's fees up to 25
1009	percent of the award, reduced to present value.
1010	(b)  The claimant's award at trial shall be reduced by any
1011	damages recovered by the claimant from arbitrating codefendants
1012	following arbitration.
1013	(4)  If the claimant rejects a defendant's offer to enter
1014	voluntary binding arbitration:
1015	(a)  The damages awardable at trial shall be limited to net
1016	economic damages, plus noneconomic damages not to exceed
1017	$350,000 per incident. The Legislature expressly finds that such
1018	conditional limit on noneconomic damages is warranted by the
1019	claimant's refusal to accept arbitration and represents an
1020	appropriate balance between the interests of all residents who
1021	ultimately pay for rights and negligence losses and the
1022	interests of those residents who are injured as a result of
1023	negligence and violations of rights.
1024	(b)  Net economic damages reduced to present value shall be
1025	awardable, including, but not limited to, past and future
1026	medical expenses and 80 percent of wage loss and loss of earning
1027	capacity, offset by any collateral source payments.
1028	(c)  If the claimant's care has been provided in all or in
1029	part by Medicaid, the award shall first pay the Medicaid program
1030	those amounts expended for the claimant's care, and the Medicaid
1031	program shall have a lien against the award for any future
1032	payments that would be paid by Medicaid.
1033	(5)  Punitive damages may be awarded pursuant to ss.
1034	400.4297 and 400.4298.
1035	(6)  A jury trial shall proceed in accordance with existing
1036	principles of law.
1037	Section 19.  Section 400.42945, Florida Statutes, is
1038	created to read:
1039	400.42945  Determination of whether claim is subject to
1040	arbitration.--
1041	(1)  In the event of a dispute, a court of competent
1042	jurisdiction may determine whether the claim is subject to the
1043	voluntary arbitration provisions of ss. 400.42942-400.42948.
1044	(2)  If a plaintiff, at any time, amends a complaint to
1045	allege facts that render a claim subject to arbitration under
1046	ss. 400.42942-400.42948, the parties shall have 30 days to
1047	determine whether to arbitrate that claim voluntarily. The
1048	procedural limitations imposed on the parties under ss.
1049	400.42942-400.42948 shall apply if the case proceeds to trial.
1050	Section 20.  Section 400.42946, Florida Statutes, is
1051	created to read:
1052	400.42946  Misarbitration.--
1053	(1)  At any time during the course of voluntary binding
1054	arbitration of a claim arising out of the rendering of, or the
1055	failure to render, medical care or service pursuant to s.
1056	400.42942, the administrative law judge serving as chief
1057	arbitrator on the arbitration panel, if he or she determines
1058	that agreement cannot be reached, may dissolve the arbitration
1059	panel and request the director of the Division of Administrative
1060	Hearings to appoint two new arbitrators from lists of three to
1061	five names timely provided by each party to the arbitration. Not
1062	more than one arbitrator shall be appointed from the list
1063	provided by any party unless only one list is timely filed.
1064	(2)  Upon appointment of the new arbitrators, arbitration
1065	shall proceed at the direction of the chief arbitrator in
1066	accordance with the provisions of ss. 400.42942-400.42948.
1067	(3)  At any time after the allocation arbitration hearing
1068	under s. 400.42943 has concluded, the administrative law judge
1069	serving as chief arbitrator on the arbitration panel may
1070	dissolve the arbitration panel and declare the proceedings
1071	concluded if he or she determines that agreement cannot be
1072	reached.
1073	Section 21.  Section 400.42947, Florida Statutes, is
1074	created to read:
1075	400.42947  Payment of arbitration award; interest.--
1076	(1)  Within 20 days after the determination of damages by
1077	the arbitration panel pursuant to s. 400.42942, the defendant
1078	shall:
1079	(a)  Pay the arbitration award, including interest at the
1080	legal rate, to the claimant; or
1081	(b)  Submit any dispute among multiple defendants to
1082	arbitration pursuant to s. 400.42943.
1083	(2)  Commencing 90 days after the award rendered in the
1084	arbitration procedure pursuant to s. 400.42942, such award shall
1085	begin to accrue interest at the rate of 18 percent per year.
1086	Section 22.  Section 400.42948, Florida Statutes, is
1087	created to read:
1088	400.42948  Appeal of arbitration awards and allocations of
1089	financial responsibility.--
1090	(1)  An arbitration award and an allocation of financial
1091	responsibility are final agency action for purposes of s.
1092	120.68. Any appeal shall be taken to the district court of
1093	appeal for the district in which the arbitration took place,
1094	shall be limited to review of the record, and shall otherwise
1095	proceed in accordance with s. 120.68. The amount of an
1096	arbitration award or an order allocating financial
1097	responsibility, the evidence in support of either, and the
1098	procedure by which either is determined are subject to judicial
1099	scrutiny only in a proceeding instituted pursuant to this
1100	subsection.
1101	(2)  No appeal shall operate to stay an arbitration award,
1102	nor shall any arbitration panel, arbitration panel member, or
1103	circuit court stay an arbitration award. The district court of
1104	appeal may order a stay to prevent manifest injustice, but no
1105	court shall abrogate the provisions of s. 400.42947(2).
1106	(3)  Any party to an arbitration proceeding may enforce an
1107	arbitration award or an allocation of financial responsibility
1108	by filing a petition in the circuit court for the circuit in
1109	which the arbitration took place. A petition may not be granted
1110	unless the time for appeal has expired. If an appeal has been
1111	taken, a petition may not be granted with respect to an
1112	arbitration award or an allocation of financial responsibility
1113	that has been stayed.
1114	(4)  If the petitioner establishes the authenticity of the
1115	arbitration award or of the allocation of financial
1116	responsibility, shows that the time for appeal has expired, and
1117	demonstrates that no stay is in place, the court shall enter
1118	such orders and judgments as are required to carry out the terms
1119	of the arbitration award or allocation of financial
1120	responsibility. Such orders are enforceable by the contempt
1121	powers of the court, and execution shall issue upon the request
1122	of a party for such judgment.
1123	Section 23.  This act shall take effect July 1, 2004.

CODING: Words stricken are deletions; words underlined are additions.