Florida Senate - 2021 SENATOR AMENDMENT
Bill No. CS/CS/SB 1786, 1st Eng.
Ì2584267Î258426
LEGISLATIVE ACTION
Senate . House
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Floor: WD/RM .
04/29/2021 09:39 AM .
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Senator Burgess moved the following:
1 Senate Amendment to House Amendment (401309) (with title
2 amendment)
3
4 Delete lines 44 - 342
5 and insert:
6 At a minimum, compensation must be provided for the following
7 actual expenses:
8 1. A total annual benefit of up to $10,000 for immediate
9 family members who reside with the infant for psychotherapeutic
10 services obtained from providers licensed under chapter 490 or
11 chapter 491.
12 2. For the life of the child, providing parents or legal
13 guardians with a reliable method of transportation for the care
14 of the child or reimbursing the cost of upgrading an existing
15 vehicle to accommodate the child’s needs when it becomes
16 medically necessary for wheelchair transportation. The mode of
17 transportation must take into account the special accommodations
18 required for the specific child. The plan may not limit such
19 transportation assistance based on the child’s age or weight.
20 The plan must replace any vans purchased by the plan every 7
21 years or 150,000 miles, whichever comes first.
22 3. Housing assistance of up to $100,000 for the life of the
23 child, including home construction and modification costs.
24 (b) However, the following expenses are not subject to
25 compensation such expenses shall not include:
26 1. Expenses for items or services that the infant has
27 received, or is entitled to receive, under the laws of any state
28 or the Federal Government, except to the extent such exclusion
29 may be prohibited by federal law.
30 2. Expenses for items or services that the infant has
31 received, or is contractually entitled to receive, from any
32 prepaid health plan, health maintenance organization, or other
33 private insuring entity.
34 3. Expenses for which the infant has received
35 reimbursement, or for which the infant is entitled to receive
36 reimbursement, under the laws of any state or the Federal
37 Government, except to the extent such exclusion may be
38 prohibited by federal law.
39 4. Expenses for which the infant has received
40 reimbursement, or for which the infant is contractually entitled
41 to receive reimbursement, pursuant to the provisions of any
42 health or sickness insurance policy or other private insurance
43 program.
44 (c) Expenses included under this paragraph (a) are shall be
45 limited to reasonable charges prevailing in the same community
46 for similar treatment of injured persons when such treatment is
47 paid for by the injured person. The parents or legal guardians
48 receiving benefits under the plan may file a petition with the
49 Division of Administrative Hearings to dispute the amount of
50 actual expenses reimbursed or a denial of reimbursement.
51 (d)1.a.(b)1. Periodic payments of an award to the parents
52 or legal guardians of the infant found to have sustained a
53 birth-related neurological injury, which award may shall not
54 exceed $100,000. However, at the discretion of the
55 administrative law judge, such award may be made in a lump sum.
56 Beginning on January 1, 2021, the award may not exceed $250,000,
57 and each January 1 thereafter, the maximum award authorized
58 under this paragraph shall increase by 3 percent.
59 b. Parents or legal guardians who received an award
60 pursuant to this section before January 1, 2021, and whose child
61 currently receives benefits under the plan must receive a
62 retroactive payment in an amount sufficient to bring the total
63 award paid to the parents or legal guardians pursuant to sub
64 subparagraph a. to $250,000. This additional payment may be made
65 in a lump sum or in periodic payments as designated by the
66 parents or legal guardians.
67 2.a. Death benefit for the infant in an amount of $50,000.
68 b. Parents or legal guardians who received an award
69 pursuant to this section, and whose child died since the
70 inception of the program, must receive a retroactive payment in
71 an amount sufficient to bring the total award paid to the
72 parents or legal guardians pursuant to sub-subparagraph a. to
73 $50,000. This additional payment may be made in a lump sum or in
74 periodic payments as designated by the parents or legal
75 guardians $10,000.
76 Section 4. Section 766.3145, Florida Statutes, is created
77 to read:
78 766.3145 Code of ethics.—
79 (1) On or before July 1 of each year, employees of the
80 association must sign and submit a statement attesting that they
81 do not have a conflict of interest as defined in part III of
82 chapter 112. As a condition of employment, all prospective
83 employees must sign and submit to the association a conflict-of
84 interest statement.
85 (2) The executive director, senior managers, and members of
86 the board of directors are subject to the code of ethics under
87 part III of chapter 112. For purposes of applying part III of
88 chapter 112 to activities of the executive director, senior
89 managers, and members of the board of directors, those persons
90 are considered public officers or employees and the association
91 is considered their agency. A board member may not vote on any
92 measure that would inure to his or her special private gain or
93 loss and, notwithstanding s. 112.3143(2), may not vote on any
94 measure that he or she knows would inure to the special private
95 gain or loss of any principal by whom he or she is retained or
96 to the parent organization or subsidiary of a corporate
97 principal by which he or she is retained, other than an agency
98 as defined in s. 112.312; or that he or she knows would inure to
99 the special private gain or loss of a relative or business
100 associate of the public officer. Before the vote is taken, such
101 member shall publicly state to the board the nature of his or
102 her interest in the matter from which he or she is abstaining
103 from voting and, within 15 days after the vote occurs, disclose
104 the nature of his or her interest as a public record in a
105 memorandum filed with the person responsible for recording the
106 minutes of the meeting, who shall incorporate the memorandum in
107 the minutes.
108 (3) Notwithstanding s. 112.3148, s. 112.3149, or any other
109 law, an employee or board member may not knowingly accept,
110 directly or indirectly, any gift or expenditure from a person or
111 entity, or an employee or representative of such person or
112 entity, which has a contractual relationship with the
113 association or which is under consideration for a contract.
114 (4) An employee or board member who fails to comply with
115 subsection (2) or subsection (3) is subject to penalties
116 provided under ss. 112.317 and 112.3173.
117 (5) Any senior manager or executive director of the
118 association who is employed on or after January 1, 2022,
119 regardless of the date of hire, who subsequently retires or
120 terminates employment is prohibited from representing another
121 person or entity before the association for 2 years after
122 retirement or termination of employment from the association.
123 Section 5. Section 766.315, Florida Statutes, is amended to
124 read:
125 766.315 Florida Birth-Related Neurological Injury
126 Compensation Association; board of directors; notice of
127 meetings; report.—
128 (1)(a) The Florida Birth-Related Neurological Injury
129 Compensation Plan shall be governed by a board of seven five
130 directors which shall be known as the Florida Birth-Related
131 Neurological Injury Compensation Association. The association is
132 not a state agency, board, or commission. Notwithstanding the
133 provision of s. 15.03, the association is authorized to use the
134 state seal.
135 (b) The directors shall be appointed for staggered terms of
136 3 years or until their successors are appointed and have
137 qualified; however, a director may not serve for more than 6
138 consecutive years.
139 (c) The directors shall be appointed by the Chief Financial
140 Officer as follows:
141 1. One citizen representative who is not affiliated with
142 any of the groups identified in subparagraphs 2.-7.
143 2. One representative of participating physicians.
144 3. One representative of hospitals.
145 4. One representative of casualty insurers.
146 5. One representative of physicians other than
147 participating physicians.
148 6. One parent or legal guardian representative of an
149 injured infant under the plan.
150 7. One representative of an advocacy organization for
151 children with disabilities.
152 (2)(a) The Chief Financial Officer may select the
153 representative of the participating physicians from a list of at
154 least three names recommended by the American Congress of
155 Obstetricians and Gynecologists, District XII; the
156 representative of hospitals from a list of at least three names
157 recommended by the Florida Hospital Association; the
158 representative of casualty insurers from a list of at least
159 three names, one of which is recommended by the American
160 Insurance Association, one of which is recommended by the
161 Florida Insurance Council, and one of which is recommended by
162 the Property Casualty Insurers Association of America; and the
163 representative of physicians, other than participating
164 physicians, from a list of three names recommended by the
165 Florida Medical Association and a list of three names
166 recommended by the Florida Osteopathic Medical Association.
167 However, the Chief Financial Officer is not required to make an
168 appointment from among the nominees of the respective
169 associations. A participating physician who is named in a
170 pending petition for a claim may not be appointed to the board.
171 An appointed director who is a participating physician may not
172 vote on any board matter relating to a claim accepted for an
173 award for compensation if the physician is named in the petition
174 for the claim.
175 (b) If applicable, the Chief Financial Officer shall
176 promptly notify the appropriate medical association or person
177 identified in paragraph (a) to make recommendations upon the
178 occurrence of any vacancy, and like nominations may be made for
179 the filling of the vacancy.
180 (c) The Governor or the Chief Financial Officer may remove
181 a director from office for misconduct, malfeasance, misfeasance,
182 or neglect of duty in office. Any vacancy so created shall be
183 filled as provided in paragraph (a).
184 (3) The directors may shall not transact any business or
185 exercise any power of the plan except upon the affirmative vote
186 of four three directors. The directors shall serve without
187 salary, but are entitled to receive reimbursement each director
188 shall be reimbursed for actual and necessary expenses incurred
189 in the performance of his or her official duties as a director
190 of the plan in accordance with s. 112.061. The directors are
191 shall not be subject to any liability with respect to the
192 administration of the plan.
193 (4) The board of directors has shall have the power to:
194 (a) Administer the plan.
195 (b) Administer the funds collected on behalf of the plan.
196 (c) Administer the payment of claims on behalf of the plan.
197 (d) Direct the investment and reinvestment of any surplus
198 funds over losses and expenses, if provided that any investment
199 income generated thereby remains credited to the plan.
200 (e) Reinsure the risks of the plan in whole or in part.
201 (f) Sue and be sued, and appear and defend, in all actions
202 and proceedings in its name to the same extent as a natural
203 person.
204 (g) Have and exercise all powers necessary or convenient to
205 effect any or all of the purposes for which the plan is created.
206 (h) Enter into such contracts as are necessary or proper to
207 administer the plan.
208 (i) Employ or retain such persons as are necessary to
209 perform the administrative and financial transactions and
210 responsibilities of the plan and to perform other necessary and
211 proper functions not prohibited by law.
212 (j) Take such legal action as may be necessary to avoid
213 payment of improper claims.
214 (k) Indemnify any employee, agent, member of the board of
215 directors or alternate thereof, or person acting on behalf of
216 the plan in an official capacity, for expenses, including
217 attorney attorney’s fees, judgments, fines, and amounts paid in
218 settlement actually and reasonably incurred in connection with
219 any action, suit, or proceeding, including any appeal thereof,
220 arising out of such person’s capacity to act acting on behalf of
221 the plan, if; provided that such person acted in good faith and
222 in a manner he or she reasonably believed to be in, or not
223 opposed to, the best interests of the plan and the health and
224 best interest of the child having birth-related neurological
225 injuries, and if provided that, with respect to any criminal
226 action or proceeding, such the person had reasonable cause to
227 believe his or her conduct was lawful.
228 (5)(a) Money may be withdrawn on account of the plan only
229 upon a voucher as authorized by the association.
230 (b) All meetings of the board of directors are subject to
231 the requirements of s. 286.011, and all books, records, and
232 audits of the plan are open to the public for reasonable
233 inspection to the general public, except that a claim file in
234 the possession of the association or its representative is
235 confidential and exempt from the provisions of s. 119.07(1) and
236 s. 24(a), Art. I of the State Constitution until termination of
237 litigation or settlement of the claim, although medical records
238 and other portions of the claim file may remain confidential and
239 exempt as otherwise provided by law. Any book, record, document,
240 audit, or asset acquired by, prepared for, or paid for by the
241 association is subject to the authority of the board of
242 directors, which is responsible therefor.
243 (c) Except in the case of emergency meetings, the
244 association shall give notice of any board meeting by
245 publication on the association’s website not fewer than 7 days
246 before the meeting. The association shall prepare an agenda in
247 time to ensure that a copy of the agenda may be received at
248 least 7 days before the meeting by any person who requests a
249 copy and who pays the reasonable cost of the copy. The agenda,
250 along with any meeting materials available in electronic form,
251 excluding confidential and exempt information, shall be
252 published on the association’s website. The agenda shall contain
253 the items to be considered in order of presentation and a
254 telephone number for members of the public to participate
255 telephonically at the board meeting. After the agenda has been
256 made available, a change shall be made only for good cause, as
257 determined by the person designated to preside, and must be
258 stated in the record. Notification of such change shall be at
259 the earliest practicable time.
260 (d) Each person authorized to receive deposits, issue
261 vouchers, or withdraw or otherwise disburse any funds shall post
262 a blanket fidelity bond in an amount reasonably sufficient to
263 protect plan assets, as determined by the plan of operation. The
264 cost of such bond will be paid from the assets of the plan.
265 (e)(d) Annually, the association shall furnish audited
266 financial reports to any plan participant upon request, to the
267 Office of Insurance Regulation of the Financial Services
268 Commission, and to the Joint Legislative Auditing Committee. The
269 reports must be prepared in accordance with accepted accounting
270 procedures and must include such information as may be required
271 by the Office of Insurance Regulation or the Joint Legislative
272 Auditing Committee. At any time determined to be necessary, the
273 Office of Insurance Regulation or the Joint Legislative Auditing
274 Committee may conduct an audit of the plan.
275 (f)(e) Funds held on behalf of the plan are funds of the
276 State of Florida. The association may only invest plan funds in
277 the investments and securities described in s. 215.47, and shall
278 be subject to the limitations on investments contained in that
279 section. All income derived from such investments will be
280 credited to the plan. The State Board of Administration may
281 invest and reinvest funds held on behalf of the plan in
282 accordance with the trust agreement approved by the association
283 and the State Board of Administration and within the provisions
284 of ss. 215.44-215.53.
285 (6) The association shall furnish annually to each parent
286 and legal guardian receiving benefits under the plan either by
287 mail or electronically a list of expenses compensable under the
288 plan.
289 (7) The association shall publish a report on its website
290 by January 1, 2022, and every January 1 thereafter. The report
291 shall include:
292 (a) The names and terms of each board member and executive
293 staff member.
294 (b) The amount of compensation paid to each association
295 employee.
296 (c) A summary of reimbursement disputes and resolutions.
297 (d) A list of expenditures for attorney fees and lobbying
298 fees.
299 (e) Other expenses to oppose each plan claim. Any personal
300 identifying information of the parent, legal guardian, or child
301 involved in the claim must be removed from this list.
302 (8) On or before November 1, 2021, and by each November 1
303 thereafter, the association shall submit a report to the
304 Governor, the President of the Senate, the Speaker of the House
305 of Representatives, and the Chief Financial Officer. The report
306 must include:
307 (a) The number of petitions filed for compensation with the
308 division, the number of claimants awarded compensation, the
309 number of claimants denied compensation, and the reasons for the
310 denial of compensation.
311 (b) The number and dollar amount of paid and denied
312 compensation for expenses by category and the reasons for any
313 denied compensation for expenses by category.
314 (c) The average turnaround time for paying or denying
315 compensation for expenses.
316 (d) Legislative recommendations to improve the program.
317 (e) A summary of any pending or resolved litigation during
318 the year which affects the plan.
319 (f) The amount of compensation paid to each association
320 employee or member of the board of directors.
321 (g) For the initial report due on or before November 1,
322 2021, an actuarial report conducted by an independent actuary
323 which provides an analysis of the estimated costs of
324 implementing the following changes to the plan:
325 1. Reducing the minimum birth weight eligibility for a
326 participant in the plan from 2,500 grams to 2,000 grams.
327 2. Revising the eligibility for participation in the plan
328 by providing that an infant must be permanently and
329 substantially mentally or physically impaired, rather than
330 permanently and substantially mentally and physically impaired.
331 3. Increasing the annual special benefit or quality of life
332 benefit from $500 to $2,500 per calendar year.
333 Section 6. The amendments made to s. 766.31, Florida
334 Statutes, by this act, apply to petitions pending or filed under
335 s. 766.305, Florida Statutes, on or after January 1, 2021.
336 However, s. 766.31(1)(d)1.b. and 2.b., Florida Statutes, as
337 created by this act, apply retroactively.
338
339 ================= T I T L E A M E N D M E N T ================
340 And the title is amended as follows:
341 Delete lines 376 - 386
342 and insert:
343 766.31, F.S.; revising requirements for the award for
344 compensation for claims under the plan; authorizing
345 parents or legal guardians receiving benefits under
346 the plan to file a petition with the Division of
347 Administrative Hearings to dispute the denial or
348 amount of reimbursement of actual expenses; increasing
349 the amount that may be awarded to the parents or legal
350 guardians of an infant found to have sustained a
351 birth-related neurological injury; requiring that such
352 amount be increased annually; requiring the plan to
353 provide retroactive payments to certain parents or
354 legal guardians which are sufficient to bring the
355 total award to a specified amount; authorizing such
356 payments to be made in a lump sum or periodically;
357 increasing the death benefit for an infant found to
358 have sustained a birth-related neurological injury;
359 requiring the plan to provide retroactive payments to
360 certain parents or legal guardians which are
361 sufficient to bring the total death benefit award to a
362 specified amount; authorizing such payments to be made
363 in a lump sum or periodically; creating s. 766.3145,
364 F.S.; requiring