Florida Senate - 2012                                    SB 1588
       
       
       
       By Senator Hays
       
       
       
       
       20-00984B-12                                          20121588__
    1                        A bill to be entitled                      
    2         An act relating to compensation for personal injury or
    3         wrongful death arising out of medical injury; amending
    4         s. 456.013, F.S.; requiring the boards or the
    5         Department of Health to require the completion of a
    6         course relating to communication of medical errors;
    7         providing a directive to the Division of Statutory
    8         Revision to divide ch. 766, F.S., into parts; creating
    9         part IV of ch. 766, F.S.; creating s. 766.401, F.S.;
   10         providing a short title; creating s. 766.402, F.S.;
   11         providing definitions; creating s. 766.403, F.S.;
   12         providing legislative findings and intent; providing
   13         that the remedy created in the part is an exclusive
   14         remedy for personal injury or wrongful death arising
   15         out of or related to a medical negligence claim;
   16         creating s. 766.404, F.S.; creating the Patient
   17         Compensation System; providing for a governing board;
   18         providing for membership and terms of appointment;
   19         providing for officers and meetings; limiting
   20         compensation of members to certain expenses; providing
   21         for an executive director and other staff; providing
   22         for offices of medical review, compensation, and
   23         quality improvement; providing for committees for
   24         medical review and compensation and other purposes as
   25         needed and providing their membership and terms;
   26         providing requirements for damage payments; providing
   27         for independent medical review panels and authorizing
   28         a stipend for panelists; providing powers and duties
   29         of the board, staff, committees, offices, and panels;
   30         prohibiting certain conflicts of interest; requiring
   31         rulemaking; creating s. 766.405, F.S.; providing a
   32         process for filing applications; providing an
   33         application filing period; creating s. 766.406, F.S.;
   34         providing for disposition of applications; providing
   35         for notice to providers and insurers; providing for
   36         support of an application pursuant to expedited
   37         medical review; providing for formal medical review
   38         when there is no support of application; providing for
   39         referral to law enforcement of an invalid application
   40         determined to be fraudulent; providing for a
   41         determination of compensation upon prima facie proof
   42         of medical injury; providing that compensation for a
   43         claim shall be offset by any past and future
   44         collateral source payments; providing for payment of
   45         compensation awards, including interest accruing on
   46         unpaid awards; providing for determinations of
   47         malpractice for purposes of a specified constitutional
   48         provision; providing for notice of applications
   49         determined to constitute medical injury for purposes
   50         of professional discipline; creating s. 766.407, F.S.;
   51         providing for review of appeals by an administrative
   52         law judge; providing that determinations of the
   53         administrative law judge are conclusive and binding;
   54         providing for appeal of such determinations; creating
   55         s. 766.408, F.S.; requiring annual contributions from
   56         specified providers to provide administrative
   57         expenses; providing maximum contribution rates;
   58         specifying payment dates; providing for disciplinary
   59         proceedings for failure to pay; providing for deposit
   60         of funds; creating s. 766.409, F.S.; requiring an
   61         annual report to the Governor and Legislature;
   62         providing retroactive application; providing for
   63         severability; providing an effective date.
   64  
   65  Be It Enacted by the Legislature of the State of Florida:
   66  
   67         Section 1. Subsection (7) of section 456.013, Florida
   68  Statutes, is amended to read:
   69         456.013 Department; general licensing provisions.—
   70         (7) The boards, or the department when there is no board,
   71  shall require the completion of a 2-hour course relating to
   72  prevention and communication of medical errors as part of the
   73  licensure and renewal process. The 2-hour course shall count
   74  towards the total number of continuing education hours required
   75  for the profession. The course shall be approved by the board or
   76  department, as appropriate, and shall include a study of root
   77  cause analysis, error reduction and prevention, and patient
   78  safety, and communication of medical errors to patients and
   79  their families. In addition, the course approved by the Board of
   80  Medicine and the Board of Osteopathic Medicine shall include
   81  information relating to the five most misdiagnosed conditions
   82  during the previous biennium, as determined by the board. If the
   83  course is being offered by a facility licensed pursuant to
   84  chapter 395 for its employees, the board may approve up to 1
   85  hour of the 2-hour course to be specifically related to error
   86  reduction and prevention methods used in that facility.
   87         Section 2. The Division of Statutory Revision is directed
   88  to designate sections 766.101 through 766.1185 of chapter 766,
   89  Florida Statutes, as part I of that chapter, entitled
   90  “Litigation Procedures”; sections 766.201 through 766.212 as
   91  part II of that chapter, entitled “Voluntary Binding
   92  Arbitration”; sections 766.301 through 766.316 as part III of
   93  that chapter, entitled “Birth-Related Neurological Injuries”;
   94  and sections 766.401 through 766.409, as created by this act, as
   95  part IV of that chapter, entitled “Patient Compensation System.”
   96         Section 3. Section 766.401, Florida Statutes, is created to
   97  read:
   98         766.401 Short title.—This part may be cited as the “Patient
   99  Injury Act.”
  100         Section 4. Section 766.402, Florida Statutes, is created to
  101  read:
  102         766.402 Definitions.—As used in this part, the term:
  103         (1) “Applicant” means a person who files an application
  104  under this part requesting the investigation of an alleged
  105  occurrence of a medical injury.
  106         (2) “Application” means a request for investigation by the
  107  Patient Compensation System of an alleged occurrence of a
  108  medical injury.
  109         (3) “Board” means the Patient Compensation Board as created
  110  in s. 766.404.
  111         (4) “Collateral source” means any payment made to the
  112  applicant, or made on his or her behalf, by or pursuant to:
  113         (a) The federal Social Security Act; any federal, state, or
  114  local income disability act; or any other public program
  115  providing medical expenses, disability payments, or other
  116  similar benefits, except as prohibited by federal law.
  117         (b) Any health, sickness, or income disability insurance;
  118  any automobile accident insurance that provides health benefits
  119  or income disability coverage; and any other similar insurance
  120  benefits, except life insurance benefits available to the
  121  applicant, whether purchased by the applicant or provided by
  122  others.
  123         (c) Any contract or agreement of any group, organization,
  124  partnership, or corporation to provide, pay for, or reimburse
  125  the costs of hospital, medical, dental, or other health care
  126  services.
  127         (d) Any contractual or voluntary wage continuation plan
  128  provided by employers or by any other system intended to provide
  129  wages during a period of disability.
  130         (5) “Committee” means, as the context requires, the Medical
  131  Review Committee or the Compensation Committee.
  132         (6) “Compensation schedule” means a schedule of damages for
  133  medical injuries.
  134         (7) “Department” means the Department of Health.
  135         (8) “Independent medical review panel” or “panel” means a
  136  multidisciplinary panel convened by the chief medical officer to
  137  review each application.
  138         (9) “Medical injury” means a personal injury or wrongful
  139  death due to medical treatment, including a missed diagnosis,
  140  which would have been avoided under the care of an experienced
  141  specialist provider practicing in the same field of care under
  142  the same circumstances or, for a general practitioner provider,
  143  an experienced general practitioner provider practicing under
  144  the same circumstances. Determination of the validity of a
  145  medical injury may only include consideration of an alternate
  146  course of treatment if the harm could have been avoided through
  147  a different but equally effective manner with respect to the
  148  treatment of the underlying condition. The term does not include
  149  an injury or wrongful death:
  150         (a) That is the consequence of a necessary procedure to
  151  diagnose or treat an illness or an injury which, if left
  152  untreated, would be directly life-threatening or lead to severe
  153  disability;
  154         (b) Caused by a drug, as defined in s. 499.003, unless the
  155  injury or wrongful death is due to a prescription error or
  156  administration error; or
  157         (c) Caused by a device, as defined in s. 499.003.
  158         (10) “Office” means, as the context requires, the Office of
  159  Compensation, the Office of Medical Review, or the Office of
  160  Quality Improvement.
  161         (11) “Panelist” means a hospital administrator, a person
  162  licensed under chapter 458, chapter 459, chapter 460, part I of
  163  chapter 464, or chapter 466, or any other person involved in the
  164  management of a health care facility as deemed by the board to
  165  be appropriate.
  166         (12) “Patient Compensation System” means the organization
  167  created pursuant to s. 766.404.
  168         (13) “Provider” means a birth center licensed under chapter
  169  383; any facility licensed under chapter 390, chapter 395,
  170  chapter 400, or chapter 429; a home health agency or nurse
  171  registry licensed under part III of chapter 400; a health care
  172  services pool registered under part IX of chapter 400; any
  173  person licensed under s. 401.27 or chapter 457, chapter 458,
  174  chapter 459, chapter 460, chapter 461, chapter 462, chapter 463,
  175  chapter 464, chapter 465, chapter 466, chapter 467, part I, part
  176  II, part III, part IV, part V, part X, part XIII, or part XIV of
  177  chapter 468, chapter 478, part III of chapter 483, or chapter
  178  486; a clinical lab licensed under part I of chapter 483; a
  179  multiphasic health testing center licensed under part II of
  180  chapter 483; a health maintenance organization certificated
  181  under part I of chapter 641; a blood bank; a plasma center; an
  182  industrial clinic; a renal dialysis facility; or a professional
  183  association partnership, corporation, joint venture, or other
  184  association for professional activity by health care providers.
  185         Section 5. Section 766.403, Florida Statutes, is created to
  186  read:
  187         766.403 Legislative findings and intent; exclusive remedy.—
  188         (1) LEGISLATIVE FINDINGS.—
  189         (a) The Legislature finds that the lack of legal
  190  representation, and, thus, compensation, for the vast majority
  191  of patients with legitimate injuries is creating an access-to
  192  courts crisis.
  193         (b) The Legislature finds that seeking compensation through
  194  medical malpractice litigation is a costly and protracted
  195  process to the extent that legal counsel may afford to finance
  196  only a small number of legitimate claims.
  197         (c) The Legislature finds that, even for patients who are
  198  able to obtain legal representation, the delay in obtaining
  199  compensation is averaging approximately 5 years, creating a
  200  significant hardship for patients and their caregivers who often
  201  need access to immediate care and compensation.
  202         (d) The Legislature finds that, because of continued
  203  exposure to liability, an overwhelming majority of physicians
  204  practice defensive medicine by ordering unnecessary tests and
  205  procedures, increasing the cost of health care for individuals
  206  covered by public and private health insurance coverage and
  207  exposing patients to unnecessary clinical risks.
  208         (e) The Legislature finds that a significant percentage of
  209  physicians are continuing to retire from practice as a result of
  210  the cost and risk of medical liability in this state.
  211         (f) The Legislature finds that recruiting physicians to
  212  this state and ensuring that physicians currently practicing in
  213  this state continue their practice is an overwhelming public
  214  necessity.
  215         (2) LEGISLATIVE INTENT.—
  216         (a) The Legislature intends to create an alternative to
  217  medical malpractice litigation whereby patients are fairly and
  218  expeditiously compensated for avoidable medical injuries. As
  219  provided in this part, this alternative is intended to
  220  significantly reduce the practice of defensive medicine, thereby
  221  reducing health care costs, increasing the number of physicians
  222  practicing in this state, and providing patients fair and timely
  223  compensation without the expense and delay of the court system.
  224  The Legislature intends that the provisions of this part apply
  225  to all health care facilities and health care practitioners who
  226  are either insured or self-insured against claims for medical
  227  malpractice.
  228         (b) The Legislature intends that an application filed under
  229  this part does not constitute a claim for medical malpractice
  230  and any action on such an application does not constitute a
  231  judgment or adjudication for medical malpractice, and,
  232  therefore, professional liability carriers are not obligated to
  233  report such applications or actions on such applications to the
  234  National Practitioner Data Bank.
  235         (c) The Legislature intends that the definition of the term
  236  “medical injury” be construed to encompass a broader range of
  237  personal injuries as compared to a negligence standard, such
  238  that a greater number of applications qualify for compensation
  239  under this part as compared to claims filed under a negligence
  240  standard.
  241         (d) The Legislature intends that because the Patient
  242  Compensation System has the primary duty to determine the
  243  validity and compensation of each application, an insurer shall
  244  not be subject to a statutory or common law bad faith cause of
  245  action relating to an application filed under this part.
  246         (3) EXCLUSIVE REMEDY.—With the exception of part III, the
  247  rights and remedies granted by this part on account of a
  248  personal injury or wrongful death exclude all other rights and
  249  remedies of the applicant, his or her personal representative,
  250  parents, dependents, and the next of kin, at common law or as
  251  provided in general law, against any provider directly involved
  252  in providing the medical treatment from which such injury or
  253  death occurred, arising out of or related to a medical
  254  negligence claim, whether in tort or in contract, with respect
  255  to such injury. Notwithstanding any other law, this part applies
  256  exclusively to applications submitted under this part. An
  257  applicant whose injury falls within the scope of part III may
  258  not file an application under this part.
  259         Section 6. Section 766.404, Florida Statutes, is created to
  260  read:
  261         766.404 Patient Compensation System; board; committees.—
  262         (1) PATIENT COMPENSATION SYSTEM.—The Patient Compensation
  263  System is created and shall be administratively housed within
  264  the department. The Patient Compensation System is a separate
  265  budget entity that is responsible for its administrative
  266  functions and is not subject to control, supervision, or
  267  direction by the department in any manner. The Patient
  268  Compensation System shall administer this part.
  269         (2) PATIENT COMPENSATION BOARD.—The Patient Compensation
  270  Board is established to govern the Patient Compensation System.
  271         (a) Members.—The board shall be composed of 11 members who
  272  represent the medical, legal, patient, and business communities
  273  from diverse geographic areas throughout the state. Members of
  274  the board shall be appointed as follows:
  275         1. Five members shall be appointed by, and serve at the
  276  pleasure of, the Governor, one of whom shall be an allopathic or
  277  osteopathic physician who actively practices in this state, one
  278  of whom shall be an executive in the business community, one of
  279  whom shall be a hospital administrator, one of whom shall be a
  280  certified public accountant who actively practices in this
  281  state, and one of whom shall be a member of The Florida Bar.
  282         2. Three members shall be appointed by, and serve at the
  283  pleasure of, the President of the Senate, one of whom shall be
  284  an allopathic or osteopathic physician who actively practices in
  285  this state and one of whom shall be a patient advocate.
  286         3. Three members shall be appointed by, and serve at the
  287  pleasure of, the Speaker of the House of Representatives, one of
  288  whom shall be an allopathic or osteopathic physician who
  289  actively practices in this state and one of whom shall be a
  290  patient advocate.
  291         (b) Terms of appointment.—Each member shall be appointed
  292  for a 4-year term. For the purpose of providing staggered terms,
  293  of the initial appointments, the five members appointed by the
  294  Governor shall be appointed to 2-year terms and the remaining
  295  six members shall be appointed to 3-year terms. If a vacancy
  296  occurs on the board before the expiration of a term, the
  297  original appointing authority shall appoint a successor to serve
  298  the unexpired portion of the term.
  299         (c) Chair and vice chair.—The board shall annually elect
  300  from its membership one member to serve as chair of the board
  301  and one member to serve as vice chair.
  302         (d) Meetings.—The first meeting of the board shall be held
  303  no later than August 1, 2012. Thereafter, the board shall meet
  304  at least quarterly upon the call of the chair. A majority of the
  305  board members constitutes a quorum. Meetings may be held by
  306  teleconference, webconference, or other electronic means.
  307         (e) Compensation.—Members of the board and the committees
  308  shall serve without compensation but may be reimbursed for per
  309  diem and travel expenses for required attendance at board and
  310  committee meetings in accordance with s. 112.061.
  311         (f) Powers and duties of the board.—The board shall have
  312  the following powers and duties:
  313         1. Ensuring the operation of the Patient Compensation
  314  System in accordance with applicable federal and state laws,
  315  rules, and regulations.
  316         2. Entering into contracts as necessary to administer this
  317  part.
  318         3. Employing an executive director and other staff as are
  319  necessary to perform the functions of the Patient Compensation
  320  System, except that the Governor shall appoint the initial
  321  executive director.
  322         4. Approving the hiring of a chief compensation officer and
  323  a chief medical officer, as recommended by the executive
  324  director.
  325         5. Approving a schedule of compensation for medical
  326  injuries, as recommended by the Compensation Committee.
  327         6. Approving medical review panelists, as recommended by
  328  the Medical Review Committee.
  329         7. Approving an annual budget.
  330         8. Annually approving provider contribution amounts.
  331         (g) Powers and duties of staff.—The executive director
  332  shall oversee the operation of the Patient Compensation System
  333  in accordance with this part. The following staff shall report
  334  directly to and serve at the pleasure of the executive director:
  335         1. Advocacy director.—The advocacy director shall ensure
  336  that each applicant is provided high quality individual
  337  assistance throughout the application process, from initial
  338  filing to disposition of the application.
  339         2. Chief compensation officer.—The chief compensation
  340  officer shall manage the Office of Compensation. The chief
  341  compensation officer shall recommend to the Compensation
  342  Committee a compensation schedule for each type of injury. The
  343  chief compensation officer may not be a licensed physician or an
  344  attorney.
  345         3. Chief financial officer.—The chief financial officer
  346  shall be responsible for overseeing the financial operations of
  347  the Patient Compensation System, including the annual
  348  development of a budget.
  349         4. Chief legal officer.—The chief legal officer shall
  350  represent the Patient Compensation System in all contested
  351  applications, oversee the operation of the Patient Compensation
  352  System to ensure compliance with established procedures, and
  353  ensure adherence to all applicable federal and state laws,
  354  rules, and regulations.
  355         5. Chief medical officer.—The chief medical officer shall
  356  be a physician licensed under chapter 458 or chapter 459 who
  357  shall manage the Office of Medical Review. The chief medical
  358  officer shall recommend to the Medical Review Committee a
  359  qualified list of multidisciplinary panelists for independent
  360  medical review panels. In addition, the chief medical officer
  361  shall convene independent medical review panels as necessary to
  362  review applications.
  363         6. Chief quality officer.—The chief quality officer shall
  364  manage the Office of Quality Improvement.
  365         (3) OFFICES.—The following offices are established within
  366  the Patient Compensation System:
  367         (a) Office of Medical Review.—The chief medical officer
  368  shall manage the Office of Medical Review. The Office of Medical
  369  Review shall evaluate and, as necessary, investigate all
  370  applications in accordance with this part. For the purpose of an
  371  investigation of an application, the office may administer
  372  oaths, take depositions, issue subpoenas, compel the attendance
  373  of witnesses and the production of papers, documents, and other
  374  evidence, and obtain patient records pursuant to the applicant’s
  375  release of protected health information.
  376         (b) Office of Compensation.—The chief compensation officer
  377  shall manage the Office of Compensation. The office shall
  378  allocate compensation for each application in accordance with
  379  the compensation schedule.
  380         (c) Office of Quality Improvement.—The chief quality
  381  officer shall manage the Office of Quality Improvement. The
  382  office shall regularly review applications data to conduct root
  383  cause analyses and develop and disseminate best practices based
  384  on such reviews.
  385         (4) COMMITTEES.—The board shall create a Medical Review
  386  Committee and a Compensation Committee. The board may create
  387  additional committees as necessary to assist in the performance
  388  of its duties and responsibilities.
  389         (a) Members.—Each committee shall be composed of three
  390  board members chosen by a majority vote of the board.
  391         1. The Medical Review Committee shall be composed of two
  392  physicians and a board member who is not an attorney. The board
  393  shall designate a physician committee member as chair of the
  394  committee.
  395         2. The Compensation Committee shall be composed of a
  396  certified public accountant and two board members who are not
  397  physicians or attorneys. The certified public accountant shall
  398  serve as chair of the committee.
  399         (b) Terms of appointment.—Members of each committee shall
  400  serve 2-year terms, within their respective terms as board
  401  members. If a vacancy occurs on a committee, the board shall
  402  appoint a successor to serve the unexpired portion of the term.
  403  A committee member who is removed or resigns from the board
  404  shall be removed from the committee.
  405         (c) Chair and vice chair.—The board shall annually
  406  designate a chair and vice chair of each committee in accordance
  407  with this subsection.
  408         (d) Meetings.—Each committee shall meet at least quarterly
  409  or at the specific direction of the board. Meetings may be held
  410  by teleconference, webconference, or other electronic means.
  411         (e) Powers and duties.
  412         1. The Medical Review Committee shall recommend to the
  413  board a comprehensive, multidisciplinary list of panelists who
  414  shall serve on the independent medical review panels as needed.
  415         2. The Compensation Committee shall, in consultation with
  416  the chief compensation officer, recommend to the board a
  417  compensation schedule. The initial compensation schedule shall
  418  be formulated such that the aggregate cost of medical
  419  malpractice and the aggregate of provider contributions are
  420  equal to, or less than, the prior fiscal year aggregate cost of
  421  medical malpractice. In addition, damage payments for each
  422  injury shall be no less than the average indemnity payment
  423  reported by the Physician Insurers Association of America or its
  424  successor organization for like injuries with like severity.
  425  Thereafter, the compensation schedule shall be annually reviewed
  426  and, if necessary, revised to ensure that a projected increase
  427  in the upcoming fiscal year aggregate cost of medical
  428  malpractice, including insured and self-insured providers, does
  429  not exceed the percentage change from the prior fiscal year in
  430  the medical care component of the Consumer Price Index for All
  431  Urban Consumers. Damage payments for each medical injury shall
  432  be apportioned among multiple providers, if applicable,
  433  conforming to historical apportionment among multiple providers
  434  reported by the Physician Insurers Association of America or its
  435  successor organization for like injuries with like severity.
  436         (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
  437  officer shall convene an independent medical review panel to
  438  evaluate whether an application constitutes medical injury. Each
  439  panel shall be composed of an odd number of at least three
  440  panelists chosen from the list of panelists recommended by the
  441  Medical Review Committee and approved by the board, and shall be
  442  convened upon the call of the chief medical officer. Each
  443  panelist shall be paid a stipend as determined by the board for
  444  his or her service. In order to expedite the review of
  445  applications, the chief medical officer may, whenever
  446  practicable, group related applications together for
  447  consideration by a single panel.
  448         (6) CONFLICTS OF INTEREST.—A board member, panelist, or
  449  employee of the Patient Compensation System may not engage in
  450  any conduct that constitutes a conflict of interest. For
  451  purposes of this subsection, a conflict of interest exists in a
  452  situation in which the private interest of a board member,
  453  panelist, or employee could influence his or her judgment in the
  454  performance of his or her duties under this part. A board
  455  member, panelist, or employee must immediately disclose in
  456  writing the presence of a conflict of interest when the board
  457  member, panelist, or employee knows or should know that the
  458  factual circumstances surrounding a particular application
  459  constitute or constituted a conflict of interest. A board
  460  member, panelist, or employee who violates this subsection is
  461  subject to disciplinary action as determined by the board. A
  462  conflict of interest includes, but is not limited to:
  463         (a) Any conduct that would lead a reasonable person having
  464  knowledge of all of the circumstances to conclude that a
  465  panelist or employee is biased against or in favor of an
  466  applicant.
  467         (b) Participation in any application in which the board
  468  member, panelist, or employee, or the parent, spouse, or child
  469  of a board member, panelist, or employee, has a financial
  470  interest.
  471         (7) RULEMAKING.—The board shall adopt rules pursuant to ss.
  472  120.536(1) and 120.54 to implement and administer this part,
  473  which shall include rules addressing:
  474         (a) The application process, including forms necessary to
  475  collect relevant information from applicants.
  476         (b) Disciplinary procedures for a board member, panelist,
  477  or employee who violates the conflict-of-interest provisions of
  478  this part.
  479         (c) Stipends paid to panelists for their service on an
  480  independent medical review panel, which stipends may be scaled
  481  in accordance with the relative scarcity of the provider’s
  482  specialty, if applicable.
  483         Section 7. Section 766.405, Florida Statutes, is created to
  484  read:
  485         766.405 Filing of applications.—
  486         (1) CONTENT.—In order to obtain compensation for medical
  487  injury under this part, an applicant must file an application
  488  with the Patient Compensation System. The advocacy director
  489  shall assist each applicant in filing an application and shall
  490  regularly provide status reports to the applicant regarding his
  491  or her application. The application must include:
  492         (a) The name and address of the applicant or his or her
  493  representative and the basis of the representation.
  494         (b) The name and address of any provider who provided
  495  medical treatment allegedly resulting in the medical injury.
  496         (c) A brief statement of the facts and circumstances
  497  surrounding the personal injury or wrongful death that gave rise
  498  to the application.
  499         (d) An authorization for release to the Office of Medical
  500  Review of all protected health information that is potentially
  501  relevant to the application.
  502         (e) Any other information that the applicant believes will
  503  be beneficial to the investigatory process, including the names
  504  of potential witnesses.
  505         (f) Documentation of any applicable private or governmental
  506  source of services or reimbursement relative to the personal
  507  injury or wrongful death.
  508         (2) INCOMPLETE APPLICATIONS.—If an application is not
  509  complete, the Patient Compensation System shall, within 30 days
  510  after the receipt of the initial application, notify the
  511  applicant in writing of any errors or omissions. An applicant
  512  shall have 30 days within which to correct the errors or
  513  omissions in the initial application.
  514         (3) LIMITATION ON APPLICATIONS.—Any application that is
  515  filed more than 4 years after the personal injury or wrongful
  516  death giving rise to the application is barred.
  517         Section 8. Section 766.406, Florida Statutes, is created to
  518  read:
  519         766.406 Disposition of applications.—
  520         (1) INITIAL MEDICAL REVIEW.—The Office of Medical Review
  521  shall, within 10 days after receipt of a completed application,
  522  determine whether the application, prima facie, constitutes a
  523  medical injury.
  524         (a) If the Office of Medical Review determines that the
  525  application, prima facie, constitutes a medical injury, the
  526  office shall immediately notify, by registered or certified
  527  mail, each provider named in the application and, for providers
  528  that are not self-insured, the insurer that provides coverage
  529  for the provider. The notification shall inform the provider
  530  that he or she may support the application to expedite the
  531  processing of the application. A provider shall have 15 days
  532  after the receipt of notification of an application to support
  533  the application. If the provider supports the application, the
  534  Office of Medical Review shall review the application in
  535  accordance with subsection (2).
  536         (b) If the Office of Medical Review determines that the
  537  application does not, prima facie, constitute a medical injury,
  538  the office shall send a rejection letter to the applicant by
  539  registered or certified mail, which shall inform the applicant
  540  of his or her right of appeal. The applicant shall have 15 days
  541  after the receipt of the letter in which to appeal the
  542  determination of the office pursuant to s. 766.407.
  543         (2) EXPEDITED MEDICAL REVIEW.—An application that is
  544  supported by a provider in accordance with subsection (1) shall
  545  be reviewed by the Office of Medical Review, within 30 days
  546  after notification of the provider’s support of the application,
  547  to determine the validity of the application. If the Office of
  548  Medical Review finds that the application is valid, the Office
  549  of Compensation shall determine an award of compensation in
  550  accordance with subsection (4). If the Office of Medical Review
  551  finds that the application is not valid, the office shall
  552  immediately notify the applicant of the rejection of the
  553  application, and, in the case of fraud, the office shall
  554  immediately notify relevant law enforcement authorities.
  555         (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
  556  determines that the application, prima facie, constitutes a
  557  medical injury, and the provider does not elect to support the
  558  application, the office shall complete a thorough investigation
  559  of the application within 60 days after the determination by the
  560  office. Within 15 days after the completion of the
  561  investigation, the chief medical officer shall allow the
  562  applicant and the provider to access records, statements, and
  563  other information obtained in the course of its investigation,
  564  in accordance with relevant state and federal laws. Within 30
  565  days after the completion of the investigation, an independent
  566  medical review panel shall be convened to determine whether the
  567  application constitutes a medical injury. The independent
  568  medical review panel shall have access to all redacted
  569  information obtained by the office in the course of its
  570  investigation of the application, and shall conclude its
  571  determination within 10 days after the convening of the panel.
  572  The standard of review shall be a preponderance of the evidence.
  573         (a) If the independent medical review panel determines that
  574  the application constitutes a medical injury, the Office of
  575  Medical Review shall immediately notify the provider by
  576  registered or certified mail of the right to appeal the finding
  577  of the office. The provider shall have 15 days after the receipt
  578  of the letter in which to appeal the determination of the panel
  579  pursuant to s. 766.407.
  580         (b) If the independent medical review panel determines that
  581  the application does not constitute a medical injury, the Office
  582  of Medical Review shall send a rejection letter to the applicant
  583  by registered or certified mail, which shall explain, in detail,
  584  the reasons for the rejection of the application and the process
  585  to appeal the determination of the panel. The applicant shall
  586  have 15 days from the receipt of the letter to appeal the
  587  determination of the panel pursuant to s. 766.407.
  588         (4) COMPENSATION REVIEW.—If an independent medical review
  589  panel finds that an application constitutes a medical injury
  590  pursuant to subsection (3), and all appeals of that finding have
  591  been exhausted by the provider pursuant to s. 766.407, the
  592  Office of Compensation shall, within 30 days after either the
  593  finding of the panel or the exhaustion of all appeals of that
  594  finding, whichever occurs later, determine an award of
  595  compensation in accordance with the compensation schedule and
  596  the findings of the panel. The office shall, by registered or
  597  certified mail, inform the applicant of the amount of
  598  compensation and the process to appeal the determination of the
  599  office. The applicant shall have 15 days after receipt of the
  600  letter to appeal the determination of the office pursuant to s.
  601  766.407.
  602         (5) LIMITATION ON COMPENSATION.—Compensation for each
  603  application shall be offset by any past and future collateral
  604  source payments and shall be paid by periodic payments.
  605         (6) PAYMENT OF COMPENSATION.—Within 14 days after either
  606  the acceptance of compensation by the applicant or the
  607  conclusion of all appeals pursuant to s. 766.407, the provider,
  608  or for a provider who has insurance coverage, the insurer, shall
  609  pay the compensation award. Beginning 45 days after the
  610  acceptance of compensation by the applicant or the conclusion of
  611  all appeals pursuant to s. 766.407, whichever occurs later, an
  612  unpaid award shall begin to accrue interest at the rate of 18
  613  percent per year. An applicant may petition the circuit court
  614  for enforcement of an award under this part.
  615         (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of
  616  s. 26, Art. X of the State Constitution, a physician who is the
  617  subject of an application under this part must be found to have
  618  committed medical malpractice only upon a specific finding of
  619  the Board of Medicine or Board of Osteopathic Medicine, as
  620  applicable, in accordance with s. 456.50.
  621         (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
  622  System shall provide the department with electronic access to
  623  applications determined to constitute a medical injury related
  624  to persons licensed under chapter 458, chapter 459, chapter 460,
  625  part I of chapter 464, or chapter 466. The department shall
  626  review such applications to determine whether any of the
  627  incidents that resulted in the application potentially involved
  628  conduct by the licensee that is subject to disciplinary action,
  629  in which case s. 456.073 applies.
  630         Section 9. Section 766.407, Florida Statutes, is created to
  631  read:
  632         766.407 Review by administrative law judge; appellate
  633  review.—
  634         (1) An administrative law judge shall hear and determine
  635  appeals filed pursuant to s. 766.406 and shall exercise the full
  636  power and authority granted to him or her in chapter 120, as
  637  necessary, to carry out the purposes of such sections. The
  638  administrative law judge shall be limited in his or her review
  639  to determining whether the Office of Medical Review, the
  640  independent medical review panel, or the Office of Compensation,
  641  as appropriate, has faithfully followed the requirements of this
  642  part and rules adopted thereunder in reviewing applications. If
  643  the administrative law judge determines that such requirements
  644  were not followed in reviewing an application, he or she shall
  645  require the chief medical officer to reconvene the original
  646  panel or convene a new panel or require the Office of
  647  Compensation to redetermine the compensation amount in
  648  accordance with the determination by the judge.
  649         (2) A determination by an administrative law judge under
  650  this section regarding the faithful following of the
  651  requirements of this part and rules adopted thereunder shall be
  652  conclusive and binding as to all questions of fact. Such
  653  determination with findings of fact and conclusions of law shall
  654  be provided to the applicant and the provider. An applicant or
  655  provider may appeal the determination of the administrative law
  656  judge to a district court of appeal. Appeals shall be filed in
  657  accordance with rules of procedure adopted by the Supreme Court
  658  for the review of such orders.
  659         Section 10. Section 766.408, Florida Statutes, is created
  660  to read:
  661         766.408 Expenses of administration.—
  662         (1) The board shall annually determine a contribution to be
  663  paid by each provider for the expense of the administration of
  664  this part. The contribution amount shall be determined by
  665  January 1 of each year and shall be based on the anticipated
  666  expenses of the administration of this part for the next state
  667  fiscal year.
  668         (2) The contribution rate may not exceed the following
  669  amounts:
  670         (a) For an individual licensed under s. 401.27, a
  671  chiropractic assistant licensed under chapter 460, or an
  672  individual licensed under chapter 461, chapter 462, chapter 463,
  673  chapter 464, with the exception of a certified registered nurse
  674  anesthetist, chapter 465, chapter 466, chapter 467, part I, part
  675  II, part III, part IV, part V, part X, part XIII, or part XIV of
  676  chapter 468, chapter 478, part III of chapter 483, or chapter
  677  486, $100 per licensee.
  678         (b) For an anesthesiology assistant or physician assistant
  679  licensed under chapter 458 or chapter 459 or a certified
  680  registered nurse anesthetist certified under part I of chapter
  681  464, $250 per licensee.
  682         (c) For a physician licensed under chapter 458, chapter
  683  459, or chapter 460, $600 per licensee. The contribution for the
  684  initial fiscal year for a licensee described in this paragraph
  685  shall be $500 per licensee.
  686         (d) For a facility licensed under part II of chapter 400 or
  687  a facility licensed under part I of chapter 429, $100 per bed.
  688         (e) For a facility licensed under chapter 395, $200 per
  689  bed. The contribution for the initial fiscal year shall be $100
  690  per bed.
  691         (f) For any other provider not otherwise described in this
  692  subsection, $2,500 per registrant or licensee.
  693         (3) The contribution determined under this section is
  694  payable by each provider upon notice delivered on or after July
  695  1 of the next state fiscal year. Each provider shall pay the
  696  contribution amount within 30 days after the date that notice is
  697  delivered to the provider. If any provider fails to pay the
  698  contribution determined under this section within 30 days after
  699  such notice, the board shall notify the provider by certified or
  700  registered mail that the provider’s license shall be subject to
  701  revocation if the contribution is not paid within 60 days after
  702  the date of the original notice.
  703         (4) A provider who fails to pay the contribution amount
  704  determined under this section within 60 days after receipt of
  705  the original notice is subject to licensure revocation action by
  706  the department, the Agency for Health Care Administration, or
  707  the relevant regulatory board, as appropriate.
  708         (5) All amounts collected under this section shall be paid
  709  into the Patient Compensation Trust Fund established in s.
  710  766.410.
  711         Section 11. Section 766.409, Florida Statutes, is created
  712  to read:
  713         766.409 Annual report.—The board shall annually, by October
  714  1, submit to the Governor, the President of the Senate, and the
  715  Speaker of the House of Representatives a report that describes
  716  the filing and disposition of applications in the prior fiscal
  717  year. The report shall include, in the aggregate, the number of
  718  applications, the disposition of such applications, and the
  719  compensation awarded.
  720         Section 12. It is the intent of the Legislature to apply
  721  this act to prior medical incidents for which a notice of intent
  722  to initiate litigation has not been mailed before the effective
  723  date of this act.
  724         Section 13. If any provision of this act or its application
  725  to any person or circumstance is held invalid, the invalidity
  726  does not affect other provisions or applications of the act
  727  which may be given effect without the invalid provision or
  728  application, and to this end the provisions of this act are
  729  severable.
  730         Section 14. This act shall take effect upon becoming a law.