Florida Senate - 2013                                    SB 1134
       By Senator Hays
       11-01059-13                                           20131134__
    1                        A bill to be entitled                      
    2         An act relating to compensation for personal injury or
    3         wrongful death arising from a medical injury; amending
    4         s. 456.013, F.S.; requiring the Department of Health
    5         or certain boards thereof to require the completion of
    6         a course relating to communication of medical errors;
    7         providing a directive to the Division of Law Revision
    8         and Information; creating s. 766.401, F.S.; providing
    9         a short title; creating s. 766.402, F.S.; providing
   10         definitions; creating s. 766.403, F.S.; providing
   11         legislative findings and intent; specifying that
   12         certain provisions are an exclusive remedy for
   13         personal injury or wrongful death; providing for early
   14         offer of settlement; creating s. 766.404, F.S.;
   15         creating the Patient Compensation System; providing
   16         for a board; providing for membership, meetings, and
   17         certain compensation; providing for specific staff,
   18         offices, committees, and panels and the powers and
   19         duties thereof; prohibiting certain conflicts of
   20         interest; authorizing rulemaking; creating s. 766.405,
   21         F.S.; providing a process for filing applications;
   22         providing for notice to providers and insurers;
   23         providing an application filing period; creating s.
   24         766.406, F.S.; providing for disposition, support, and
   25         review of applications; providing for a determination
   26         of compensation upon a prima facie claim of a medical
   27         injury having been made; providing that compensation
   28         for an application shall be offset by any past and
   29         future collateral source payments; providing for
   30         determinations of malpractice for purposes of a
   31         specified constitutional provision; providing for
   32         notice of applications determined to constitute a
   33         medical injury for purposes of professional
   34         discipline; providing for payment of compensation
   35         awards; creating s. 766.407, F.S.; providing for
   36         review of awards by an administrative law judge;
   37         providing for appellate review; creating s. 766.408,
   38         F.S.; requiring annual contributions from specified
   39         providers to provide administrative expenses;
   40         providing maximum contribution rates; specifying
   41         payment dates; providing for disciplinary proceedings
   42         for failure to pay; providing for deposit of funds;
   43         authorizing providers to opt out of participation;
   44         providing requirements for such an election; creating
   45         s. 766.409, F.S.; requiring notice to patients of
   46         provider participation in the Patient Compensation
   47         System; creating s. 766.410, F.S.; requiring an annual
   48         report to the Governor and Legislature; providing
   49         retroactive application; providing severability;
   50         providing an effective date.
   52  Be It Enacted by the Legislature of the State of Florida:
   54         Section 1. Subsection (7) of section 456.013, Florida
   55  Statutes, is amended to read:
   56         456.013 Department; general licensing provisions.—
   57         (7) The boards, or the department when there is no board,
   58  shall require the completion of a 2-hour course relating to
   59  prevention and communication of medical errors as part of the
   60  licensure and renewal process. The 2-hour course shall count
   61  towards the total number of continuing education hours required
   62  for the profession. The course shall be approved by the board or
   63  department, as appropriate, and shall include a study of root
   64  cause analysis, error reduction and prevention, and patient
   65  safety, and communication of medical errors to patients and
   66  their families. In addition, the course approved by the Board of
   67  Medicine and the Board of Osteopathic Medicine shall include
   68  information relating to the five most misdiagnosed conditions
   69  during the previous biennium, as determined by the board. If the
   70  course is being offered by a facility licensed pursuant to
   71  chapter 395 for its employees, the board may approve up to 1
   72  hour of the 2-hour course to be specifically related to error
   73  reduction and prevention methods used in that facility.
   74         Section 2. The Division of Law Revision and Information is
   75  directed to designate sections 766.101 through 766.1185 of
   76  chapter 766, Florida Statutes, as part I of that chapter,
   77  entitled “Litigation Procedures”; sections 766.201 through
   78  766.212 as part II of that chapter, entitled “Voluntary Binding
   79  Arbitration”; sections 766.301 through 766.316 as part III of
   80  that chapter, entitled “Birth-Related Neurological Injuries”;
   81  and sections 766.401 through 766.410, as created by this act, as
   82  part IV of that chapter, entitled “Patient Compensation System.”
   83         Section 3. Section 766.401, Florida Statutes, is created to
   84  read:
   85         766.401 Short title.—This part may be cited as the “Patient
   86  Injury Act.”
   87         Section 4. Section 766.402, Florida Statutes, is created to
   88  read:
   89         766.402 Definitions.—As used in this part, the term:
   90         (1) “Applicant” means a person who files an application
   91  under this part requesting the investigation of an alleged
   92  occurrence of a medical injury.
   93         (2) “Application” means a request for investigation by the
   94  Patient Compensation System of an alleged occurrence of a
   95  medical injury.
   96         (3) “Board” means the Patient Compensation Board as created
   97  in s. 766.404.
   98         (4) “Collateral source” means any payment made to the
   99  applicant, or made on his or her behalf, by or pursuant to:
  100         (a) The federal Social Security Act; any federal, state, or
  101  local income disability act; or any other public program
  102  providing medical expenses, disability payments, or other
  103  similar benefits, except as prohibited by federal law.
  104         (b) Any health, sickness, or income disability insurance;
  105  any automobile accident insurance that provides health benefits
  106  or income disability coverage; and any other similar insurance
  107  benefits, except life insurance benefits available to the
  108  applicant, whether purchased by the applicant or provided by
  109  others.
  110         (c) Any contract or agreement of any group, organization,
  111  partnership, or corporation to provide, pay for, or reimburse
  112  the costs of hospital, medical, dental, or other health care
  113  services.
  114         (d) Any contractual or voluntary wage continuation plan
  115  provided by employers or by any other system intended to provide
  116  wages during a period of disability.
  117         (5) “Committee” means, as the context requires, the Medical
  118  Review Committee or the Compensation Committee.
  119         (6) “Compensation schedule” means a schedule of damages for
  120  medical injuries.
  121         (7) “Department” means the Department of Health.
  122         (8) “Independent medical review panel” or “panel” means a
  123  multidisciplinary panel convened by the chief medical officer to
  124  review each application.
  125         (9)(a) “Medical injury” means a personal injury or wrongful
  126  death due to medical treatment, including a missed diagnosis,
  127  which injury or death could have been avoided:
  128         1. For care provided by an individual participating
  129  provider, under the care of an experienced specialist provider
  130  practicing in the same field of care under the same or similar
  131  circumstances or, for a general practitioner provider, an
  132  experienced general practitioner provider practicing under the
  133  same or similar circumstances; or
  134         2. For care provided by a participating provider in a
  135  system of care, if such care is rendered within an optimal
  136  system of care under the same or similar circumstances.
  137         (b) A medical injury only includes consideration of an
  138  alternate course of treatment if the injury or death could have
  139  been avoided through a different but equally effective manner of
  140  treatment for the underlying condition. In addition, a medical
  141  injury only includes consideration of information that would
  142  have been known to an experienced specialist or readily
  143  available to an optimal system of care at the time of the
  144  medical treatment.
  145         (c) For purposes of this subsection, the term “medical
  146  injury” does not include an injury or wrongful death caused by a
  147  product defect in a drug or device as defined in s. 499.003.
  148         (10) “Office” means, as the context requires, the Office of
  149  Compensation, the Office of Medical Review, or the Office of
  150  Quality Improvement.
  151         (11) “Panelist” means a hospital administrator; a person
  152  licensed under chapter 458, chapter 459, chapter 460, part I of
  153  chapter 464, or chapter 466; or any other person involved in the
  154  management of a health care facility deemed by the board to be
  155  appropriate.
  156         (12) “Participating provider” means a provider who, at the
  157  time of the medical injury, had paid the contribution required
  158  for participation in the Patient Compensation System for the
  159  year in which the medical injury occurred.
  160         (13) “Patient Compensation System” means the organization
  161  created in s. 766.404.
  162         (14) “Provider” means a birth center licensed under chapter
  163  383; a facility licensed under chapter 390, chapter 395, or
  164  chapter 400; a home health agency or nurse registry licensed
  165  under part III of chapter 400; a health care services pool
  166  registered under part IX of chapter 400; a person licensed under
  167  s. 401.27, chapter 457, chapter 458, chapter 459, chapter 460,
  168  chapter 461, chapter 462, chapter 463, chapter 464, chapter 465,
  169  chapter 466, chapter 467, part I, part II, part III, part IV,
  170  part V, part X, part XIII, or part XIV of chapter 468, chapter
  171  478, part III of chapter 483, or chapter 486; a clinical
  172  laboratory licensed under part I of chapter 483; a multiphasic
  173  health testing center licensed under part II of chapter 483; a
  174  health maintenance organization certificated under part I of
  175  chapter 641; a blood bank; a plasma center; an industrial
  176  clinic; a renal dialysis facility; or a professional
  177  association, partnership, corporation, joint venture, or other
  178  association pertaining to the professional activity of health
  179  care providers.
  180         Section 5. Section 766.403, Florida Statutes, is created to
  181  read:
  182         766.403 Legislative findings and intent; exclusive remedy;
  183  early offers.—
  184         (1) LEGISLATIVE FINDINGS.—The Legislature finds that:
  185         (a) The lack of legal representation, and, thus,
  186  compensation, for the vast majority of patients with legitimate
  187  injuries is creating an access to courts crisis.
  188         (b) Seeking compensation through medical malpractice
  189  litigation is a costly and protracted process, such that legal
  190  counsel may only afford to finance a small number of legitimate
  191  claims.
  192         (c) Even for patients who are able to obtain legal
  193  representation, the delay in obtaining compensation averages 5
  194  years, creating a significant hardship for patients and their
  195  caregivers who often need access to immediate care and
  196  compensation.
  197         (d) Because of continued exposure to liability, an
  198  overwhelming majority of physicians practice defensive medicine
  199  by ordering unnecessary tests and procedures, increasing the
  200  cost of health care for individuals covered by public and
  201  private health insurance coverage and exposing patients to
  202  unnecessary clinical risks.
  203         (e) A significant percentage of physicians retire from
  204  practice as a result of the cost and risk of medical liability
  205  in this state.
  206         (f) Recruiting physicians to practice in this state and
  207  ensuring that current physicians continue to practice in this
  208  state is an overwhelming public necessity.
  209         (2) LEGISLATIVE INTENT.—The Legislature intends:
  210         (a) To create an alternative to medical malpractice
  211  litigation whereby patients are fairly and expeditiously
  212  compensated for avoidable medical injuries. As provided in this
  213  part, this alternative is intended to significantly reduce the
  214  practice of defensive medicine, thereby reducing health care
  215  costs, increasing the number of physicians practicing in this
  216  state, and providing patients fair and timely compensation
  217  without the expense and delay of the court system. The
  218  Legislature intends that this part apply to all health care
  219  facilities and health care practitioners who are either insured
  220  or self-insured against claims for medical malpractice.
  221         (b) That an application filed under this part not
  222  constitute a claim for medical malpractice, any action on such
  223  an application not constitute a judgment or adjudication for
  224  medical malpractice, and, therefore, professional liability
  225  carriers not be obligated to report such applications or actions
  226  on such applications to the National Practitioner Data Bank.
  227         (c) That the definition of the term “medical injury” be
  228  construed to encompass a broader range of personal injuries as
  229  compared to a negligence standard, such that a greater number of
  230  applications qualify for compensation under this part as
  231  compared to claims filed under a negligence standard.
  232         (d) That, because the Patient Compensation System has the
  233  primary duty to determine the validity and compensation of each
  234  application, an insurer not be subject to a statutory or common
  235  law bad faith cause of action relating to an application filed
  236  under this part.
  237         (3) EXCLUSIVE REMEDY.—Except as provided in part III, the
  238  rights and remedies granted by this part due to a personal
  239  injury or wrongful death exclude all other rights and remedies
  240  of the applicant and his or her personal representative,
  241  parents, dependents, and next of kin, at common law or as
  242  provided in general law, against any participating provider
  243  directly involved in providing the medical treatment resulting
  244  in such injury or death, arising out of or related to a medical
  245  negligence claim, whether in tort or in contract, with respect
  246  to such injury. Notwithstanding any other law, this part applies
  247  exclusively to applications submitted under this part. An
  248  applicant whose injury is excluded from coverage under this part
  249  may file a claim for recovery of damages in accordance with part
  250  I.
  251         (4) EARLY OFFER.—This part does not prohibit a self-insured
  252  provider or an insurer from providing an early offer of
  253  settlement in satisfaction of a medical injury. A person who
  254  accepts a settlement offer may not file an application under
  255  this part for the same medical injury. In addition, if an
  256  application has been filed before the offer of settlement, the
  257  acceptance of the settlement offer by the applicant shall result
  258  in the withdrawal of the application.
  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 shall be 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, 2013. 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, web conference, or other electronic means.
  307         (e) Compensation.—Members of the board shall serve without
  308  compensation but may be reimbursed for per diem and travel
  309  expenses for required attendance at board meetings in accordance
  310  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
  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  chief medical officer, as recommended by the executive director.
  324         5. Approving a schedule of compensation for medical
  325  injuries, as recommended by the Compensation Committee.
  326         6. Approving medical review panelists as recommended by the
  327  Medical Review Committee.
  328         7. Approving an annual budget.
  329         8. Annually approving provider contribution amounts.
  330         (g) Powers and duties of staff.—The executive director
  331  shall oversee the operation of the Patient Compensation System
  332  in accordance with this part. The following staff shall report
  333  directly to and serve at the pleasure of the executive director:
  334         1. Advocacy director.—The advocacy director shall ensure
  335  that each applicant is provided high-quality individual
  336  assistance throughout the process, from initial filing to
  337  disposition of the application. The advocacy director shall
  338  assist each applicant in determining whether to retain an
  339  attorney, which assistance shall include an explanation of
  340  possible fee arrangements and the advantages and disadvantages
  341  of retaining an attorney. If the applicant seeks to file an
  342  application without an attorney, the advocacy director shall
  343  assist the applicant in filing the application. In addition, the
  344  advocacy director shall regularly provide status reports to the
  345  applicant regarding his or her application.
  346         2. Chief compensation officer.—The chief compensation
  347  officer shall manage the Office of Compensation. The chief
  348  compensation officer shall recommend to the Compensation
  349  Committee a compensation schedule for each type of medical
  350  injury. The chief compensation officer may not be a licensed
  351  physician or an attorney.
  352         3. Chief financial officer.—The chief financial officer
  353  shall be responsible for overseeing the financial operations of
  354  the Patient Compensation System, including the annual
  355  development of a budget.
  356         4. Chief legal officer.—The chief legal officer shall
  357  represent the Patient Compensation System in all contested
  358  applications, oversee the operation of the Patient Compensation
  359  System to ensure compliance with established procedures, and
  360  ensure adherence to all applicable federal and state laws,
  361  rules, and regulations.
  362         5. Chief medical officer.—The chief medical officer shall
  363  be a physician licensed under chapter 458 or chapter 459 and
  364  shall manage the Office of Medical Review. The chief medical
  365  officer shall recommend to the Medical Review Committee a
  366  qualified list of multidisciplinary panelists for independent
  367  medical review panels. In addition, the chief medical officer
  368  shall convene independent medical review panels as necessary to
  369  review applications.
  370         6. Chief quality officer.—The chief quality officer shall
  371  manage the Office of Quality Improvement.
  372         (3) OFFICES.—The following offices are established within
  373  the Patient Compensation System:
  374         (a) Office of Medical Review.—The Office of Medical Review
  375  shall evaluate and, as necessary, investigate all applications
  376  in accordance with this part. For the purpose of an
  377  investigation of an application, the office shall have the power
  378  to administer oaths, take depositions, issue subpoenas, compel
  379  the attendance of witnesses and the production of papers,
  380  documents, and other evidence, and obtain patient records
  381  pursuant to the applicant’s release of protected health
  382  information.
  383         (b) Office of Compensation.—The Office of Compensation
  384  shall allocate compensation for each application in accordance
  385  with the compensation schedule.
  386         (c) Office of Quality Improvement.—The Office of Quality
  387  Improvement shall regularly review application data to conduct
  388  root-cause analyses and develop and disseminate best practices
  389  based on such reviews. In addition, the office shall capture and
  390  record safety-related data obtained during an investigation
  391  conducted by the Office of Medical Review, including the cause
  392  of, the factors contributing to, and any interventions that may
  393  have prevented the medical injury.
  394         (4) COMMITTEES.—The board shall create a Medical Review
  395  Committee and a Compensation Committee. The board may create
  396  additional committees as necessary to assist in the performance
  397  of its duties and responsibilities.
  398         (a) Members.—Each committee shall be composed of three
  399  board members chosen by a majority vote of the board.
  400         1. The Medical Review Committee shall be composed of two
  401  physicians and a board member who is not an attorney. The board
  402  shall designate a physician committee member as chair of the
  403  committee.
  404         2. The Compensation Committee shall be composed of a
  405  certified public accountant and two board members who are not
  406  physicians or attorneys. The certified public accountant shall
  407  serve as chair of the committee.
  408         (b) Terms of appointment.—Members of each committee shall
  409  serve 2-year terms concurrent with their respective terms as
  410  board members. If a vacancy occurs on a committee, the board
  411  shall appoint a successor to serve the unexpired portion of the
  412  term. A committee member who is removed or resigns from the
  413  board shall be removed from the committee.
  414         (c) Chair and vice chair.—The board shall annually
  415  designate a chair and vice chair of each committee.
  416         (d) Meetings.—Each committee shall meet at least quarterly
  417  or at the specific direction of the board. Meetings may be held
  418  by teleconference, web conference, or other electronic means.
  419         (e) Compensation.—Members of the committees shall serve
  420  without compensation but may be reimbursed for per diem and
  421  travel expenses for required attendance at committee meetings in
  422  accordance with s. 112.061.
  423         (f) Powers and duties.
  424         1. The Medical Review Committee shall recommend to the
  425  board a comprehensive, multidisciplinary list of panelists who
  426  shall serve on the independent medical review panels as needed.
  427         2. The Compensation Committee shall, in consultation with
  428  the chief compensation officer, recommend to the board:
  429         a. A compensation schedule, formulated such that the
  430  aggregate cost of medical malpractice and the aggregate of
  431  provider contributions are equal to or less than the prior
  432  fiscal year’s aggregate cost of medical malpractice. In
  433  addition, damage payments for each injury shall be no less than
  434  the average indemnity payment reported by the Physician Insurers
  435  Association of America or its successor organization for similar
  436  medical injuries with similar severity. Thereafter, the
  437  committee shall annually review the compensation schedule and,
  438  if necessary, recommend a revised schedule, such that a
  439  projected increase in the upcoming fiscal year’s aggregate cost
  440  of medical malpractice, including insured and self-insured
  441  providers, does not exceed the percentage change from the prior
  442  year in the medical care component of the Consumer Price Index
  443  for All Urban Consumers.
  444         b. Guidelines for the payment of compensation awards
  445  through periodic payments.
  446         c. Guidelines for the apportionment of compensation among
  447  multiple providers, which guidelines shall be based on the
  448  historical apportionment among multiple providers for similar
  449  injuries with similar severity.
  450         (5) INDEPENDENT MEDICAL REVIEW PANELS.—The chief medical
  451  officer shall convene an independent medical review panel to
  452  evaluate each application to determine whether a medical injury
  453  occurred. Each panel shall be composed of an odd number of at
  454  least three panelists chosen from the list of panelists
  455  recommended by the Medical Review Committee and approved by the
  456  board and shall convene upon the call of the chief medical
  457  officer. Each panelist shall be paid a stipend as determined by
  458  the board for his or her service on the panel. In order to
  459  expedite the review of applications, the chief medical officer
  460  may, whenever practicable, group related applications together
  461  for consideration by a single panel.
  462         (6) CONFLICTS OF INTEREST.—A board member, panelist, or
  463  employee of the Patient Compensation System may not engage in
  464  any conduct that constitutes a conflict of interest. For
  465  purposes of this subsection, the term “conflict of interest”
  466  means a situation in which the private interest of a board
  467  member, panelist, or employee could influence his or her
  468  judgment in the performance of his or her duties under this
  469  part. A board member, panelist, or employee shall immediately
  470  disclose in writing the presence of a conflict of interest when
  471  the board member, panelist, or employee knows or should
  472  reasonably have known that the factual circumstances surrounding
  473  a particular application constitute or constituted a conflict of
  474  interest. A board member, panelist, or employee who violates
  475  this subsection is subject to disciplinary action as determined
  476  by the board. A conflict of interest includes, but is not
  477  limited to:
  478         (a) Any conduct that would lead a reasonable person having
  479  knowledge of all of the circumstances to conclude that a board
  480  member, panelist, or employee is biased against or in favor of
  481  an applicant.
  482         (b) Participation in any application in which the board
  483  member, panelist, or employee, or the parent, spouse, or child
  484  of a board member, panelist, or employee, has a financial
  485  interest.
  486         (7) RULEMAKING.—The board shall adopt rules to implement
  487  and administer this part, including rules addressing:
  488         (a) The application process, including forms necessary to
  489  collect relevant information from applicants.
  490         (b) Disciplinary procedures for a board member, panelist,
  491  or employee who violates the conflict of interest provisions of
  492  this part.
  493         (c) Stipends paid to panelists for their service on an
  494  independent medical review panel, which stipends may be scaled
  495  in accordance with the relative scarcity of the provider’s
  496  specialty, if applicable.
  497         (d) Payment of compensation awards through periodic
  498  payments and the apportionment of compensation among multiple
  499  providers, as recommended by the Compensation Committee.
  500         (e) The opt-out process for providers who do not want to
  501  participate in the Patient Compensation System.
  502         Section 7. Section 766.405, Florida Statutes, is created to
  503  read:
  504         766.405 Filing of applications.—
  505         (1) CONTENT.—In order to obtain compensation for a medical
  506  injury, an applicant, or his or her legal representative, shall
  507  file an application with the Patient Compensation System. The
  508  application shall include the following:
  509         (a) The name and address of the applicant or his or her
  510  representative and the basis of the representation.
  511         (b) The name and address of any participating provider who
  512  provided medical treatment allegedly resulting in the medical
  513  injury.
  514         (c) A brief statement of the facts and circumstances
  515  surrounding the medical injury that gave rise to the
  516  application.
  517         (d) An authorization for release to the Office of Medical
  518  Review of all protected health information that is potentially
  519  relevant to the application.
  520         (e) Any other information that the applicant believes will
  521  be beneficial to the investigatory process, including the names
  522  of potential witnesses.
  523         (f) Documentation of any applicable private or governmental
  524  source of services or reimbursement relative to the medical
  525  injury.
  526         (2) INCOMPLETE APPLICATIONS.—If an application is not
  527  complete, the Patient Compensation System shall, within 30 days
  528  after the receipt of the initial application, notify the
  529  applicant in writing of any errors or omissions. An applicant
  530  shall have 30 days after receipt of the notice in which to
  531  correct the errors or omissions in the initial application.
  532         (3) TIME LIMITATION ON APPLICATIONS.—An application shall
  533  be filed within the time periods specified in s. 95.11(4) for
  534  medical malpractice actions.
  535         (4) SUPPLEMENTAL INFORMATION.—After the filing of an
  536  application, the applicant may supplement the initial
  537  application with additional information that the applicant
  538  believes may be beneficial in the resolution of the application.
  539         (5) LEGAL COUNSEL.—This part does not prohibit an applicant
  540  or participating provider from retaining an attorney to
  541  represent the applicant or participating provider in the review
  542  and resolution of an application.
  543         Section 8. Section 766.406, Florida Statutes, is created to
  544  read:
  545         766.406 Disposition of applications.—
  546         (1) INITIAL MEDICAL REVIEW.—Individuals with relevant
  547  clinical expertise in the Office of Medical Review shall, within
  548  10 days after the receipt of a completed application, determine
  549  whether the application, prima facie, constitutes a medical
  550  injury.
  551         (a) If the Office of Medical Review determines that the
  552  application, prima facie, constitutes a medical injury, the
  553  office shall immediately notify, by registered or certified
  554  mail, each participating provider named in the application and,
  555  for participating providers that are not self-insured, the
  556  insurer that provides coverage for the provider. The
  557  notification shall inform the participating provider that he or
  558  she may support the application to expedite the processing of
  559  the application. A participating provider shall have 15 days
  560  after the receipt of notification of an application to support
  561  the application. If the participating provider supports the
  562  application, the Office of Medical Review shall review the
  563  application in accordance with subsection (2).
  564         (b) If the Office of Medical Review determines that the
  565  application does not, prima facie, constitute a medical injury,
  566  the office shall send a rejection letter to the applicant by
  567  registered or certified mail informing the applicant of his or
  568  her right of appeal. The applicant shall have 15 days after the
  569  receipt of the letter in which to appeal the determination of
  570  the office pursuant to s. 766.407.
  571         (2) EXPEDITED MEDICAL REVIEW.—An application that is
  572  supported by a participating provider in accordance with
  573  subsection (1) shall be reviewed by individuals with relevant
  574  clinical expertise in the Office of Medical Review within 30
  575  days after notification of the participating provider’s support
  576  of the application to determine the validity of the application.
  577  If the Office of Medical Review finds that the application is
  578  valid, the Office of Compensation shall determine an award of
  579  compensation in accordance with subsection (4). If the Office of
  580  Medical Review finds that the application is not valid, the
  581  office shall immediately notify the applicant of the rejection
  582  of the application and, in the case of fraud, shall immediately
  583  notify relevant law enforcement authorities.
  584         (3) FORMAL MEDICAL REVIEW.—If the Office of Medical Review
  585  determines that the application, prima facie, constitutes a
  586  medical injury and the participating provider does not elect to
  587  support the application, the office shall complete a thorough
  588  investigation of the application within 60 days after the
  589  determination by the office. The investigation shall be
  590  conducted by a multidisciplinary team with relevant clinical
  591  expertise and shall include a thorough investigation of all
  592  available documentation, witnesses, and other information.
  593  Within 15 days after the completion of the investigation, the
  594  chief medical officer shall allow the applicant and the
  595  participating provider to access records, statements, and other
  596  information obtained in the course of its investigation, in
  597  accordance with relevant state and federal laws. Within 30 days
  598  after the completion of the investigation, the chief medical
  599  officer shall convene an independent medical review panel to
  600  determine whether the application constitutes a medical injury.
  601  The independent medical review panel shall have access to all
  602  redacted information obtained by the office in the course of its
  603  investigation of the application and shall make a written
  604  determination within 10 days after the convening of the panel,
  605  which written determination shall be immediately provided to the
  606  applicant and the participating provider. The standard of review
  607  shall be a preponderance of the evidence.
  608         (a) If the independent medical review panel determines that
  609  the application constitutes a medical injury, the Office of
  610  Medical Review shall immediately notify the participating
  611  provider by registered or certified mail of the right to appeal
  612  the determination of the panel. The participating provider shall
  613  have 15 days after the receipt of the letter in which to appeal
  614  the determination of the panel pursuant to s. 766.407.
  615         (b) If the independent medical review panel determines that
  616  the application does not constitute a medical injury, the Office
  617  of Medical Review shall immediately notify the applicant by
  618  registered or certified mail of the right to appeal the
  619  determination of the panel. The applicant shall have 15 days
  620  after the receipt of the letter to appeal the determination of
  621  the panel pursuant to s. 766.407.
  622         (4) COMPENSATION REVIEW.—If an independent medical review
  623  panel finds that an application constitutes a medical injury
  624  under subsection (3) and all appeals of that finding have been
  625  exhausted by the participating provider pursuant to s. 766.407,
  626  the Office of Compensation shall, within 30 days after either
  627  the finding of the panel or the exhaustion of all appeals of
  628  that finding, whichever occurs later, make a written
  629  determination of an award of compensation in accordance with the
  630  compensation schedule and the findings of the panel. The office
  631  shall notify the applicant and the participating provider by
  632  registered or certified mail of the amount of compensation and
  633  shall also explain to the applicant the process to appeal the
  634  determination of the office. The applicant shall have 15 days
  635  after the receipt of the letter to appeal the determination of
  636  the office pursuant to s. 766.407.
  637         (5) LIMITATION ON COMPENSATION.—Compensation for each
  638  application shall be offset by any past and future collateral
  639  source payments. In addition, compensation may be paid by
  640  periodic payments as determined by the Office of Compensation in
  641  accordance with rules adopted by the board.
  642         (6) PAYMENT OF COMPENSATION.—Within 14 days after either
  643  the acceptance of compensation by the applicant or the
  644  conclusion of all appeals pursuant to s. 766.407, the
  645  participating provider, or for a participating provider who has
  646  insurance coverage, the insurer, shall remit the compensation
  647  award to the Patient Compensation System, which shall
  648  immediately provide compensation to the applicant in accordance
  649  with the final compensation award. Beginning 45 days after the
  650  acceptance of compensation by the applicant or the conclusion of
  651  all appeals pursuant to s. 766.407, whichever occurs later, an
  652  unpaid award shall begin to accrue interest at the rate of 18
  653  percent per year.
  654         (7) DETERMINATION OF MEDICAL MALPRACTICE.—For purposes of
  655  s. 26, Art. X of the State Constitution, a physician who is the
  656  subject of an application under this part must be found to have
  657  committed medical malpractice only upon a specific finding of
  658  the Board of Medicine or Board of Osteopathic Medicine, as
  659  applicable, in accordance with s. 456.50.
  660         (8) PROFESSIONAL BOARD NOTICE.—The Patient Compensation
  661  System shall provide the department with electronic access to
  662  applications for which a medical injury was determined to exist,
  663  related to persons licensed under chapter 458, chapter 459,
  664  chapter 460, part I of chapter 464, or chapter 466, where the
  665  provider represents an imminent risk of harm to the public. The
  666  department shall review such applications to determine whether
  667  any of the incidents that resulted in the application
  668  potentially involved conduct by the licensee that is subject to
  669  disciplinary action, in which case s. 456.073 applies.
  670         Section 9. Section 766.407, Florida Statutes, is created to
  671  read:
  672         766.407 Review by administrative law judge; appellate
  673  review; extensions of time.—
  674         (1) REVIEW BY ADMINISTRATIVE LAW JUDGE.—An administrative
  675  law judge shall hear and determine appeals filed pursuant to s.
  676  766.406 and shall exercise the full power and authority granted
  677  to him or her in chapter 120, as necessary, to carry out the
  678  purposes of that section. The administrative law judge shall be
  679  limited in his or her review to determining whether the Office
  680  of Medical Review, the independent medical review panel, or the
  681  Office of Compensation, as appropriate, has faithfully followed
  682  the requirements of this part and rules adopted thereunder in
  683  reviewing applications. If the administrative law judge
  684  determines that such requirements were not followed in reviewing
  685  an application, he or she shall require the chief medical
  686  officer to either reconvene the original panel or convene a new
  687  panel, or require the Office of Compensation to redetermine the
  688  compensation amount, in accordance with the determination of the
  689  judge.
  690         (2) APPELLATE REVIEW.—A determination by an administrative
  691  law judge under this section regarding the award or denial of
  692  compensation under this part shall be conclusive and binding as
  693  to all questions of fact and shall be provided to the applicant
  694  and the participating provider. An applicant may appeal the
  695  award or denial of compensation to the district court of appeal.
  696  Appeals shall be filed in accordance with rules of procedure
  697  adopted by the Supreme Court for review of such orders.
  698         (3) EXTENSIONS OF TIME.—Upon a written petition by either
  699  the applicant or the participating provider, an administrative
  700  law judge may grant, for good cause, an extension of any of the
  701  time periods specified in this part.
  702         Section 10. Section 766.408, Florida Statutes, is created
  703  to read:
  704         766.408 Expenses of administration; opt out.—
  705         (1) The board shall annually determine a contribution that
  706  shall be paid by each provider, unless the provider opts out of
  707  participation in the Patient Compensation System pursuant to
  708  subsection (6). The contribution amount shall be determined by
  709  January 1 of each year and shall be based on the anticipated
  710  expenses of the administration of this part for the next state
  711  fiscal year.
  712         (2) The contribution rate may not exceed the following
  713  amounts:
  714         (a) For an individual licensed under s. 401.27, a
  715  chiropractic assistant licensed under chapter 460, or an
  716  individual licensed under chapter 461, chapter 462, chapter 463,
  717  chapter 464 with the exception of a certified registered nurse
  718  anesthetist, chapter 465, chapter 466, chapter 467, part I, part
  719  II, part III, part IV, part V, part X, part XIII, or part XIV of
  720  chapter 468, chapter 478, part III of chapter 483, or chapter
  721  486, $100 per licensee.
  722         (b) For an anesthesiology assistant or physician assistant
  723  licensed under chapter 458 or chapter 459 or a certified
  724  registered nurse anesthetist certified under part I of chapter
  725  464, $250 per licensee.
  726         (c) For a physician licensed under chapter 458, chapter
  727  459, or chapter 460, $600 per licensee. The contribution for the
  728  initial fiscal year shall be $500 per licensee.
  729         (d) For a facility licensed under part II of chapter 400,
  730  $100 per bed.
  731         (e) For a facility licensed under chapter 395, $200 per
  732  bed. The contribution for the initial fiscal year shall be $100
  733  per bed.
  734         (f) For any other provider not otherwise described in this
  735  subsection, $2,500 per registrant or licensee.
  736         (3) The contribution determined under this section shall be
  737  payable by each participating provider upon notice delivered on
  738  or after July 1 of the next state fiscal year. Each
  739  participating provider shall pay the contribution amount within
  740  30 days after the date the notice is delivered to the provider.
  741  If a provider fails to pay the contribution determined under
  742  this section within 30 days after such notice, the board shall
  743  notify the provider by certified or registered mail that the
  744  provider’s license shall be subject to revocation if the
  745  contribution is not paid within 60 days after the date of the
  746  original notice.
  747         (4) A provider that has not opted out of participation
  748  pursuant to subsection (6) who fails to pay the contribution
  749  amount determined under this section within 60 days after
  750  receipt of the original notice shall be subject to a licensure
  751  revocation action by the department, the Agency for Health Care
  752  Administration, or the relevant regulatory board, as applicable.
  753         (5) All amounts collected under this section shall be paid
  754  into the Patient Compensation Trust Fund established in s.
  755  766.4105.
  756         (6) A provider may elect to opt out of participation in the
  757  Patient Compensation System. The election to opt out must be
  758  made in writing no later than 15 days before the due date of the
  759  contribution required under this section. A provider who opts
  760  out may subsequently elect to participate by paying the
  761  appropriate contribution amount for the current fiscal year.
  762         Section 11. Section 766.409, Florida Statutes, is created
  763  to read:
  764         766.409 Notice to patients of participation in the Patient
  765  Compensation System.—
  766         (1) Each participating provider shall provide notice to
  767  patients that the provider is participating in the Patient
  768  Compensation System. Such notice shall be provided on a form
  769  furnished by the Patient Compensation System and shall include a
  770  concise explanation of a patient’s rights and benefits under the
  771  system.
  772         (2) Notice is not required to be given to a patient when
  773  the patient has an emergency medical condition as defined in s.
  774  395.002(8)(b) or when notice is not practicable.
  775         Section 12. Section 766.410, Florida Statutes, is created
  776  to read:
  777         766.410 Annual report.—The board shall annually, by October
  778  1, submit to the Governor, the President of the Senate, and the
  779  Speaker of the House of Representatives a report that describes
  780  the filing and disposition of applications in the preceding
  781  fiscal year. The report shall include, in the aggregate, the
  782  number of applications, the disposition of such applications,
  783  and the compensation awarded.
  784         Section 13. This act applies to medical incidents for which
  785  a notice of intent to initiate litigation has not been mailed
  786  before July 1, 2013.
  787         Section 14. If any provision of this act or its application
  788  to any person or circumstance is held invalid, the invalidity
  789  does not affect other provisions or applications of the act
  790  which may be given effect without the invalid provision or
  791  application, and to this end the provisions of this act are
  792  severable.
  793         Section 15. This act shall take effect July 1, 2013.