Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1786
       
       
       
       
       
       
                                Ì140544ÉÎ140544                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/20/2021           .                                
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       The Committee on Appropriations (Book) recommended the
       following:
       
    1         Senate Amendment to Amendment (754030) (with title
    2  amendment)
    3  
    4         Delete lines 5 - 190
    5  and insert:
    6         Section 1. Subsection (2) of section 766.301, Florida
    7  Statutes, is amended to read:
    8         766.301 Legislative findings and intent.—
    9         (2) It is the intent of the Legislature to provide
   10  compensation, on a no-fault basis, for a limited class of
   11  catastrophic injuries that result in unusually high costs for
   12  custodial care and rehabilitation. This plan shall apply only to
   13  birth-related neurological injuries and is not intended to serve
   14  as the payor of last resort for claims arising out of such
   15  injuries. It is not the intent of the Legislature to shield
   16  physicians who engage in willful misconduct, gross negligence,
   17  or recklessness or to preclude individuals from filing
   18  legitimate claims of medical malpractice against such
   19  physicians.
   20         Section 2. Subsection (4) is added to section 766.303,
   21  Florida Statutes, to read:
   22         766.303 Florida Birth-Related Neurological Injury
   23  Compensation Plan; exclusiveness of remedy.—
   24         (4) The Florida Birth-Related Neurological Injury
   25  Compensation Association shall administer the plan in a manner
   26  that promotes and protects the health and best interests of
   27  children with birth-related neurological injuries who have been
   28  accepted into the plan, and the association shall strive to
   29  ensure that all of their medically reasonable needs are being
   30  met.
   31         Section 3. Subsection (5) of section 766.305, Florida
   32  Statutes, is amended to read:
   33         766.305 Filing of claims and responses; medical
   34  disciplinary review.—
   35         (5) Upon receipt of such petition, the Division of Medical
   36  Quality Assurance shall review the information therein and
   37  determine whether it involved conduct by a physician licensed
   38  under chapter 458 or an osteopathic physician licensed under
   39  chapter 459 which that is subject to disciplinary action. If a
   40  physician is involved in more than one filed claim, the division
   41  also must review the circumstances of all such claims together
   42  to determine whether the physician’s conduct establishes a
   43  pattern of practice subject to disciplinary action. Section
   44  456.073 applies in such cases, in which case the provisions of
   45  s. 456.073 shall apply.
   46         Section 4. Section 766.313, Florida Statutes, is amended to
   47  read:
   48         766.313 Limitation on claim.—Any claim for compensation
   49  under ss. 766.301-766.316 which that is filed more than 8 5
   50  years after the birth of an infant alleged to have a birth
   51  related neurological injury is shall be barred.
   52         Section 5. Section 766.3135, Florida Statutes, is created
   53  to read:
   54         766.3135 Plan services.—
   55         (1)Pursuant to an award under s. 766.31(1), the
   56  association is responsible for reimbursement of actual expenses
   57  for medically necessary and reasonable services for a child
   58  under the plan. The plan is not intended to serve as the payor
   59  of last resort and the association may not hold itself out as
   60  such.
   61         (a)The association must reimburse the parents or legal
   62  guardians of a child under the plan for any service, drug,
   63  equipment, or treatment at a reasonable rate if they submit a
   64  letter of medical necessity from the child’s physician or other
   65  treating health care provider for such service, drug, equipment,
   66  or treatment.
   67         (b)The association may establish an independent review
   68  process that uses medical experts to review such requests after
   69  reimbursement to determine whether the physician’s or health
   70  care provider’s determination of medical necessity was
   71  reasonable. If the review finds that such determination was not
   72  reasonable, the association may ask the parents or legal
   73  guardians to provide a letter of medical necessity from a second
   74  health care provider. If such letter is provided, the
   75  association may not take further action. If the parents or legal
   76  guardians are unable to provide a second letter, the association
   77  may debit the reimbursement from future reimbursements.
   78         (c)For experimental treatments, therapies, or programs,
   79  the parents or legal guardians of the child must submit a report
   80  of medical necessity from the physician or other health care
   81  provider which details the medical necessity for the
   82  experimental treatment, therapy, or program and provides proof
   83  that it has shown objective, observable, and demonstrable
   84  medical benefits to other patients similarly situated to the
   85  child under the plan. The association may use its review process
   86  established under paragraph (b) to conclude whether the report
   87  reasonably supports the determination of medical necessity. If
   88  the review finds that such determination is not reasonable, the
   89  association may require the parents or legal guardians to
   90  provide a second report from a different health care provider.
   91  If such report is provided, the association must reimburse the
   92  parents or legal guardians for the experimental treatment,
   93  therapy, or program, as applicable. If the parents or legal
   94  guardians are unable to provide a second report, the association
   95  is not required to provide reimbursement.
   96         (2)Parents or legal guardians of a child under the plan
   97  are eligible for reimbursement of expenses for any of the
   98  following, at a minimum:
   99         (a)Medical, dental, and hospital care; habilitative
  100  services and training; mental health services; music or art
  101  therapy; family residential or custodial care; and professional
  102  residential and custodial care and services. Reimbursement for
  103  private nursing staff or attendant care under this paragraph
  104  must be provided at a rate at least equal to the state or
  105  federal minimum wage, whichever is greater, and must be
  106  reimbursed at the same rate regardless of the setting in which
  107  the care is provided.
  108         (b)Medically necessary drugs, special equipment, and
  109  facilities.
  110         (c)Family support services for immediate family members
  111  living with the child, including, but not limited to, mental
  112  health services.
  113         (d)Travel expenses related to the child’s care. The
  114  association may not limit the amount or type of travel which may
  115  be reimbursed or differentiate reimbursement rates based on the
  116  purpose of such travel, provided that it is related to the
  117  child’s care.
  118         (e)Entertainment and other promotion of the child’s mental
  119  and emotional well-being. The parents or legal guardians of the
  120  child are entitled to a reimbursement of at least $1,500 per
  121  year under this paragraph.
  122         (f)Nutrition and hygiene needs of the child. The
  123  association may not limit reimbursement for diapers, baby food,
  124  or formula if such items are appropriate for the child’s age or
  125  developmental stage.
  126         (3)The association is also responsible for the following:
  127         (a)Providing ongoing transportation assistance for the
  128  life of the child. The association must provide parents or legal
  129  guardians with a reliable method of transportation for the care
  130  of the child or reimburse the cost of upgrading an existing
  131  vehicle to accommodate the child’s needs. The mode of
  132  transportation must take into account the special accommodations
  133  required for the specific child. The association may not limit
  134  such transportation assistance based on the child’s age or
  135  weight.
  136         (b)Providing ongoing housing assistance for the life of
  137  the child. Such assistance includes, but is not limited to:
  138         1.Payment assistance for rent and utilities to cover the
  139  cost of any increase due to the accommodation of the child’s
  140  condition and medical needs.
  141         2.Reimbursement of moving costs.
  142         3.Payment assistance for home construction costs up to
  143  $100,000.
  144         (c)Establishing an online network portal for parents and
  145  legal guardians of children under the plan to support one
  146  another and exchange information and resources. Access to the
  147  online network must be provided at no cost to parents and legal
  148  guardians.
  149         Section 6. Paragraph (a) of subsection (5) of section
  150  766.314, Florida Statutes, is amended to read:
  151         766.314 Assessments; plan of operation.—
  152         (5)(a) Beginning January 1, 1990, the persons and entities
  153  listed in paragraphs (4)(b) and (c), except those persons or
  154  entities who are specifically excluded from said provisions, as
  155  of the date determined in accordance with the plan of operation,
  156  taking into account persons licensed subsequent to the payment
  157  of the initial assessment, shall pay an annual assessment in the
  158  amount equal to the initial assessments provided in paragraphs
  159  (4)(b) and (c). If payment of the annual assessment by a
  160  physician is received by the association by January 31 of any
  161  calendar year, the physician shall qualify as a participating
  162  physician for that entire calendar year. If the payment is
  163  received after January 31 of any calendar year, the physician
  164  shall qualify as a participating physician for that calendar
  165  year only from the date the payment was received by the
  166  association. Beginning on January 1, 2022, and on each January 1
  167  thereafter, the annual assessment shall increase by 3 percent.
  168  On January 1, 1991, and on each January 1 thereafter, the
  169  association shall determine the amount of additional assessments
  170  necessary pursuant to subsection (7), in the manner required by
  171  the plan of operation, subject to any increase determined to be
  172  necessary by the Office of Insurance Regulation pursuant to
  173  paragraph (7)(b). On July 1, 1991, and on each July 1
  174  thereafter, the persons and entities listed in paragraphs (4)(b)
  175  and (c), except those persons or entities who are specifically
  176  excluded from said provisions, shall pay the additional
  177  assessments which were determined on January 1. Beginning
  178  January 1, 1990, the entities listed in paragraph (4)(a),
  179  including those licensed on or after October 1, 1988, shall pay
  180  an annual assessment of $50 per infant delivered during the
  181  prior calendar year. The additional assessments which were
  182  determined on January 1, 1991, pursuant to the provisions of
  183  subsection (7) are shall not be due and payable by the entities
  184  listed in paragraph (4)(a) until July 1.
  185         Section 7. Subsections (1) and (2) of section 766.31,
  186  Florida Statutes, are amended to read:
  187         766.31 Administrative law judge awards for birth-related
  188  neurological injuries; notice of award.—
  189         (1) Upon determining that an infant has sustained a birth
  190  related neurological injury and that obstetrical services were
  191  delivered by a participating physician at the birth, the
  192  administrative law judge shall make an award providing
  193  compensation for the following items relative to such injury:
  194         (a) Actual expenses for medically necessary and reasonable
  195  medical and hospital, habilitative and training, family
  196  residential or custodial care, professional residential, and
  197  custodial care and service, for medically necessary drugs,
  198  special equipment, and facilities, and for related travel. At a
  199  minimum, compensation must be provided for the following actual
  200  expenses:
  201         1.Diapers and baby formula for the infant from the time of
  202  birth and pureed baby food or other baby food for the infant at
  203  the appropriate age or developmental stage.
  204         2.A total annual benefit of up to $5,000 for immediate
  205  family members who reside with the infant for psychotherapeutic
  206  services obtained from providers licensed under chapter 490 or
  207  chapter 491.
  208         3.Transportation reimbursement for all necessary trips to
  209  the pharmacy each month for prescription fills for the infant.
  210         (b) However, the following expenses are not subject to
  211  compensation such expenses shall not include:
  212         1. Expenses for items or services that the infant has
  213  received, or is entitled to receive, under the laws of any state
  214  or the Federal Government, except to the extent such exclusion
  215  may be prohibited by federal law.
  216         2. Expenses for items or services that the infant has
  217  received, or is contractually entitled to receive, from any
  218  prepaid health plan, health maintenance organization, or other
  219  private insuring entity.
  220         3. Expenses for which the infant has received
  221  reimbursement, or for which the infant is entitled to receive
  222  reimbursement, under the laws of any state or the Federal
  223  Government, except to the extent such exclusion may be
  224  prohibited by federal law.
  225         4. Expenses for which the infant has received
  226  reimbursement, or for which the infant is contractually entitled
  227  to receive reimbursement, pursuant to the provisions of any
  228  health or sickness insurance policy or other private insurance
  229  program.
  230         (c) Expenses included under this paragraph (a) may not
  231  exceed shall be limited to reasonable charges prevailing in the
  232  same community for similar treatment of injured persons when
  233  such treatment is paid for by the injured person.
  234         (d)1.a.(b)1. Periodic payments of an award to the parents
  235  or legal guardians of the infant found to have sustained a
  236  birth-related neurological injury, which award may shall not
  237  exceed $100,000. However, at the discretion of the
  238  administrative law judge, such award may be made in a lump sum.
  239  Beginning on January 1, 2021, the award may not exceed $250,000,
  240  and each January 1 thereafter the maximum award authorized under
  241  this paragraph shall increase by 3 percent.
  242         b.Parents or legal guardians who received an award
  243  pursuant to this section before January 1, 2021, and whose child
  244  currently receives benefits under the plan must receive a
  245  retroactive payment in an amount sufficient to bring the total
  246  award paid to the parents or legal guardians pursuant to sub
  247  subparagraph a. to $250,000. This additional payment may be made
  248  in a lump sum or in periodic payments as designated by the
  249  parents or legal guardians.
  250         2. Death benefit for the infant in an amount of $50,000
  251  $10,000.
  252         (e)(c) Reasonable expenses incurred in connection with the
  253  filing of a claim under ss. 766.301-766.316, including
  254  reasonable attorney attorney’s fees, which are shall be subject
  255  to the approval and award of the administrative law judge. In
  256  determining an award for attorney’s fees, the administrative law
  257  judge shall consider the following factors:
  258         1. The time and labor required, the novelty and difficulty
  259  of the questions involved, and the skill requisite to perform
  260  the legal services properly.
  261         2. The fee customarily charged in the locality for similar
  262  legal services.
  263         3. The time limitations imposed by the claimant or the
  264  circumstances.
  265         4. The nature and length of the professional relationship
  266  with the claimant.
  267         5. The experience, reputation, and ability of the lawyer or
  268  lawyers performing services.
  269         6. The contingency or certainty of a fee.
  270  
  271  Should there be a final determination of compensability, and the
  272  claimants accept an award under this section, the claimants are
  273  shall not be liable for any expenses, including attorney
  274  attorney’s fees, incurred in connection with the filing of a
  275  claim under ss. 766.301-766.316 other than those expenses
  276  awarded under this section.
  277         (2) The award shall require the immediate payment of
  278  expenses previously incurred and shall require that future
  279  expenses be paid as incurred.
  280         (a)Within 20 days after the receipt of a request for
  281  payment of expenses, the plan must pay the expenses or notify
  282  the parents or legal guardians, or their designee, that specific
  283  additional information or documentation is needed to evaluate
  284  the request or that the request for payment of the expenses is
  285  being denied.
  286         (b)Parents or legal guardians, or their designee, must
  287  submit any additional information or documentation requested by
  288  the plan within 35 days after receipt of the notification by the
  289  plan that additional information or documentation is needed.
  290  Additional information is considered submitted on the date it is
  291  mailed or electronically submitted to the plan.
  292         (c)A request for payment of expenses must be paid or
  293  denied within 90 days after receipt of the request. Failure to
  294  pay or deny the claim within 120 days after receipt of the
  295  request creates an uncontestable obligation to pay the expenses.
  296         Section 8. Section 766.3145, Florida Statutes, is created
  297  to read:
  298         766.3145 Code of ethics.—
  299         (1)On or before July 1 of each year, employees of the
  300  association must sign and submit a statement attesting that they
  301  do not have a conflict of interest as defined in part III of
  302  chapter 112. As a condition of employment, all prospective
  303  employees must sign and submit to the association a conflict-of
  304  interest statement.
  305         (2)The executive director, the ombudsman, senior managers,
  306  and members of the board of directors are subject to part III of
  307  chapter 112, including, but not limited to, the code of ethics
  308  and the public disclosure and reporting of financial interests
  309  requirements of s. 112.3145. For purposes of applying part III
  310  of chapter 112 to activities of the executive director, senior
  311  managers, and members of the board of directors, those persons
  312  are considered public officers or employees and the association
  313  is considered their agency. A board member may not vote on any
  314  measure that would inure to his or her special private gain or
  315  loss and, notwithstanding s. 112.3143(2), may not vote on any
  316  measure that he or she knows would inure to the special private
  317  gain or loss of any principal by whom he or she is retained or
  318  to the parent organization or subsidiary of a corporate
  319  principal by which he or she is retained, other than an agency
  320  as defined in s. 112.312; or that he or she knows would inure to
  321  the special private gain or loss of a relative or business
  322  associate of the public officer. Before the vote is taken, such
  323  member shall publicly state to the board the nature of his or
  324  her interest in the matter from which he or she is abstaining
  325  from voting and, within 15 days after the vote occurs, disclose
  326  the nature of his or her interest as a public record in a
  327  memorandum filed with the person responsible for recording the
  328  minutes of the meeting, who shall incorporate the memorandum in
  329  the minutes. The executive director, senior managers, and board
  330  members are also required to file such disclosures with the
  331  Commission on Ethics and the Office of Insurance Regulation. The
  332  executive director of the association or his or her designee
  333  shall notify each existing and newly appointed member of the
  334  board of directors and senior managers of his or her duty to
  335  comply with the reporting requirements of part III of chapter
  336  112. At least quarterly, the executive director or his or her
  337  designee shall submit to the Commission on Ethics a list of
  338  names of the members of the board of directors and senior
  339  managers who are subject to the public disclosure requirements
  340  under s. 112.3145.
  341         (3) Notwithstanding s. 112.3148, s. 112.3149, or any other
  342  law, an employee or board member may not knowingly accept,
  343  directly or indirectly, any gift or expenditure from a person or
  344  entity, or an employee or representative of such person or
  345  entity, which has a contractual relationship with the
  346  association or which is under consideration for a contract.
  347         (4)An employee or board member who fails to comply with
  348  subsection (2) or subsection (3) is subject to penalties
  349  provided under ss. 112.317 and 112.3173.
  350         (5) Any senior manager or executive director of the
  351  association who is employed on or after January 1, 2022,
  352  regardless of the date of hire, who subsequently retires or
  353  terminates employment is prohibited from representing another
  354  person or entity before the association for 2 years after
  355  retirement or termination of employment from the association.
  356         Section 9. Paragraphs (a) and (c) of subsection (1),
  357  paragraph (a) of subsection (2), and paragraph (i) of subsection
  358  (4) of section 766.315, Florida Statutes, are amended, and
  359  subsection (6) is added to that section, to read:
  360         766.315 Florida Birth-Related Neurological Injury
  361  Compensation Association; board of directors.—
  362         (1)(a) The Florida Birth-Related Neurological Injury
  363  Compensation Plan shall be governed by a board of seven five
  364  directors which shall be known as the Florida Birth-Related
  365  Neurological Injury Compensation Association. The association is
  366  not a state agency, board, or commission. Notwithstanding the
  367  provision of s. 15.03, the association is authorized to use the
  368  state seal.
  369         (c) The Chief Financial Officer shall appoint the
  370  directors, ensuring that at least one board member is a woman,
  371  shall be appointed by the Chief Financial Officer as follows:
  372  
  373  ================= T I T L E  A M E N D M E N T ================
  374  And the title is amended as follows:
  375         Between lines 309 and 310
  376  insert:
  377         766.301, F.S.; revising legislative intent; amending
  378         s. 766.303, F.S.; requiring the Florida Birth-Related
  379         Neurological Injury Compensation Association to
  380         administer the Florida Birth-Related Neurological
  381         Injury Compensation Plan in a specified manner;
  382         amending s. 766.305, F.S.; requiring the Division of
  383         Medical Quality Assurance of the Department of Health
  384         to review all claims under the plan involving a
  385         particular physician together when making certain
  386         determinations; amending s. 766.313, F.S.; revising
  387         the timeframe within which birth-related neurological
  388         injury compensation claims must be filed; creating s.
  389         766.3135, F.S.; providing that the Florida Birth
  390         Related Neurological Injury Compensation Association
  391         is responsible for reimbursing parents and legal
  392         guardians for actual expenses for medically necessary
  393         and reasonable services for an injured child;
  394         prohibiting the association from holding itself out as
  395         the payor of last resort for services under the plan;
  396         requiring the association to reimburse parents and
  397         legal guardians for services, drugs, equipment, or
  398         treatment if they provide a certain letter of medical
  399         necessity; authorizing the association to establish a
  400         review process for such reimbursements; requiring
  401         parents and legal guardians to submit a certain report
  402         to the association for reimbursement of experimental
  403         treatments, therapies, or programs; authorizing the
  404         association to use its review process to make certain
  405         determinations regarding such reimbursements;
  406         requiring the association to reimburse parents and
  407         legal guardians for experimental treatments,
  408         therapies, and programs under certain circumstances;
  409         specifying expenses for which parents and legal
  410         guardians are eligible to receive reimbursement;
  411         providing duties for the association; amending s.
  412         766.314, F.S.; beginning on a specified date,
  413         requiring the annual assessments imposed on physicians
  414         and certain entities participating in the plan to be
  415         increased by a certain percentage annually; amending
  416         s.