Florida Senate - 2021                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 1786
       
       
       
       
       
       
                                Ì439190+Î439190                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/22/2021 02:32 PM       .                                
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       Senator Burgess moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsection (4) is added to section 766.303,
    6  Florida Statutes, to read:
    7         766.303 Florida Birth-Related Neurological Injury
    8  Compensation Plan; exclusiveness of remedy.—
    9         (4) The Florida Birth-Related Neurological Injury
   10  Compensation Association shall administer the plan in a manner
   11  that promotes and protects the health and best interests of
   12  children with birth-related neurological injuries who have been
   13  accepted into the plan, and the association shall strive to
   14  ensure that all of their medically necessary needs are being
   15  met.
   16         Section 2. Subsection (5) of section 766.305, Florida
   17  Statutes, is amended to read:
   18         766.305 Filing of claims and responses; medical
   19  disciplinary review.—
   20         (5) Upon receipt of such petition, the Division of Medical
   21  Quality Assurance shall review the information therein and
   22  determine whether it involved conduct by a physician licensed
   23  under chapter 458 or an osteopathic physician licensed under
   24  chapter 459 which that is subject to disciplinary action. If a
   25  physician is involved in more than one filed claim, the division
   26  also must review the circumstances of all such claims together
   27  to determine whether the physician’s conduct establishes a
   28  pattern of practice subject to disciplinary action. Section
   29  456.073 applies in such cases, in which case the provisions of
   30  s. 456.073 shall apply.
   31         Section 3. Present subsection (3) of section 766.31,
   32  Florida Statutes, is redesignated as subsection (4), a new
   33  subsection (3) is added to that section, and subsections (1) and
   34  (2) are amended, to read:
   35         766.31 Administrative law judge awards for birth-related
   36  neurological injuries; notice of award.—
   37         (1) Upon determining that an infant has sustained a birth
   38  related neurological injury and that obstetrical services were
   39  delivered by a participating physician at the birth, the
   40  administrative law judge shall make an award providing
   41  compensation for the following items relative to such injury:
   42         (a) Actual expenses for medically necessary and reasonable
   43  medical and hospital, habilitative and training, family
   44  residential or custodial care, professional residential, and
   45  custodial care and service, for medically necessary drugs,
   46  special equipment, and facilities, and for related travel. At a
   47  minimum, compensation must be provided for the following actual
   48  expenses:
   49         1.Diapers and baby formula for the child from the time of
   50  birth and pureed baby food or other baby food for the child at
   51  the appropriate age or developmental stage.
   52         2.A total annual benefit of up to $10,000 for immediate
   53  family members who reside with the infant for psychotherapeutic
   54  services obtained from providers licensed under chapter 490 or
   55  chapter 491.
   56         3.Transportation-related assistance, including, but not
   57  limited to, the following:
   58         a.Reimbursement for all medically necessary trips,
   59  including travel to the pharmacy each month to purchase the
   60  child’s prescription medications.
   61         b.For the life of the child, providing parents or legal
   62  guardians with a reliable method of transportation for the care
   63  of the child or reimbursing the cost of upgrading an existing
   64  vehicle to accommodate the child’s needs when it becomes
   65  medically necessary for wheelchair transportation. The mode of
   66  transportation must take into account the special accommodations
   67  required for the specific child. The plan may not limit such
   68  transportation assistance based on the child’s age or weight.
   69  The plan must replace any vans purchased by the plan every 7
   70  years or 150,000 miles, whichever comes first.
   71         4.Housing assistance of up to $100,000 for the lifetime of
   72  the child, including home construction and modification costs.
   73         (b) However, the following expenses are not subject to
   74  compensation such expenses shall not include:
   75         1. Expenses for items or services that the infant has
   76  received, or is entitled to receive, under the laws of any state
   77  or the Federal Government, except to the extent such exclusion
   78  may be prohibited by federal law.
   79         2. Expenses for items or services that the infant has
   80  received, or is contractually entitled to receive, from any
   81  prepaid health plan, health maintenance organization, or other
   82  private insuring entity.
   83         3. Expenses for which the infant has received
   84  reimbursement, or for which the infant is entitled to receive
   85  reimbursement, under the laws of any state or the Federal
   86  Government, except to the extent such exclusion may be
   87  prohibited by federal law.
   88         4. Expenses for which the infant has received
   89  reimbursement, or for which the infant is contractually entitled
   90  to receive reimbursement, pursuant to the provisions of any
   91  health or sickness insurance policy or other private insurance
   92  program.
   93         (c) Expenses included under this paragraph (a) may not
   94  exceed usual and customary shall be limited to reasonable
   95  charges prevailing in the same community for similar treatment
   96  of injured persons when such treatment is paid for by the
   97  injured person.
   98         (d)1.a.(b)1. Periodic payments of an award to the parents
   99  or legal guardians of the infant found to have sustained a
  100  birth-related neurological injury, which award may shall not
  101  exceed $100,000. However, at the discretion of the
  102  administrative law judge, such award may be made in a lump sum.
  103  Beginning on January 1, 2021, the award may not exceed $250,000,
  104  and each January 1 thereafter the maximum award authorized under
  105  this paragraph shall increase by 3 percent.
  106         b.Parents or legal guardians who received an award
  107  pursuant to this section before January 1, 2021, and whose child
  108  currently receives benefits under the plan must receive a
  109  retroactive payment in an amount sufficient to bring the total
  110  award paid to the parents or legal guardians pursuant to sub
  111  subparagraph a. to $250,000. This additional payment may be made
  112  in a lump sum or in periodic payments as designated by the
  113  parents or legal guardians.
  114         2. Death benefit for the infant in an amount of $50,000.
  115  Parents or legal guardians who received an award pursuant to
  116  this section, and whose child died since the inception of the
  117  program, must receive a retroactive payment in an amount
  118  sufficient to bring the total award paid to the parents or legal
  119  guardians pursuant to this subparagraph to $50,000. This
  120  additional payment may be made in a lump sum or in periodic
  121  payments as designated by the parents or legal guardians
  122  $10,000.
  123         (e)(c) Reasonable expenses incurred in connection with the
  124  filing of a claim under ss. 766.301-766.316, including
  125  reasonable attorney attorney’s fees, which are shall be subject
  126  to the approval and award of the administrative law judge. In
  127  determining an award for attorney attorney’s fees, the
  128  administrative law judge shall consider the following factors:
  129         1. The time and labor required, the novelty and difficulty
  130  of the questions involved, and the skill requisite to perform
  131  the legal services properly.
  132         2. The fee customarily charged in the locality for similar
  133  legal services.
  134         3. The time limitations imposed by the claimant or the
  135  circumstances.
  136         4. The nature and length of the professional relationship
  137  with the claimant.
  138         5. The experience, reputation, and ability of the lawyer or
  139  lawyers performing services.
  140         6. The contingency or certainty of a fee.
  141  
  142  Should there be a final determination of compensability, and the
  143  claimants accept an award under this section, the claimants are
  144  shall not be liable for any expenses, including attorney
  145  attorney’s fees, incurred in connection with the filing of a
  146  claim under ss. 766.301-766.316 other than those expenses
  147  awarded under this section.
  148         (2) The award shall require the immediate payment of
  149  expenses previously incurred and shall require that future
  150  expenses be paid as incurred.
  151         (3)(a)To request reimbursement from the plan for actual
  152  expenses, the parents or legal guardians of a child under the
  153  plan must submit a letter of medical necessity to the plan from
  154  the child’s physician, who must be licensed under chapter 458 or
  155  chapter 459 or, if the child resides in another state, must be
  156  licensed under the laws of that state, or from another licensed
  157  treating health care practitioner as defined in s. 456.001
  158  requesting reimbursement of the medically necessary services,
  159  drugs, equipment, or treatment. Within 20 days after the receipt
  160  of a request for reimbursement of expenses, the plan must
  161  reimburse the expenses or notify the parents or legal guardians
  162  and the ombudsman appointed pursuant to s. 766.315(4)(i)1. that
  163  specific additional information or documentation is needed to
  164  evaluate the request or that the request for payment of the
  165  expenses is being denied. Before denying the request, the plan
  166  must consult with the ombudsman concerning the request and any
  167  relevant information concerning the child’s unique needs. The
  168  plan must provide the ombudsman with a detailed written
  169  explanation for the proposed denial. If the plan denies the
  170  request because it determines that the services or treatment
  171  were not medically necessary, the plan must request the parents
  172  or legal guardians to provide a letter of medical necessity from
  173  a second licensed physician or health care provider who is not
  174  affiliated with or does not have an investment interest, as
  175  described in s. 456.053, with the first physician or health care
  176  provider who provided the medical necessity letter. If such
  177  letter is provided, the plan must reimburse the parents or legal
  178  guardians for the actual expenses, including the expenses
  179  associated with obtaining the second medical necessity letter
  180  from a physician or other health care practitioner. If the
  181  parents or legal guardians are unable to provide a second
  182  letter, the plan is not required to reimburse the expenses.
  183         (b)Parents or legal guardians, or their designee, must
  184  submit any additional information or documentation requested by
  185  the plan within 35 days after receipt of the notification by the
  186  plan that additional information or documentation is needed.
  187  Additional information is considered submitted on the date it is
  188  mailed or electronically submitted to the plan.
  189         (c)A request for reimbursement of expenses must be paid or
  190  denied within 90 days after receipt of the request. A denial of
  191  reimbursement by the plan must be accompanied by a detailed
  192  written explanation of why the request was denied. Failure to
  193  pay or deny the request for reimbursement within 120 days after
  194  receipt of the request creates an uncontestable obligation to
  195  reimburse the expenses.
  196         Section 4. Section 766.313, Florida Statutes, is amended to
  197  read:
  198         766.313 Limitation on claim.—Any claim for compensation
  199  under ss. 766.301-766.316 which that is filed more than 8 5
  200  years after the birth of an infant alleged to have a birth
  201  related neurological injury is shall be barred.
  202         Section 5. Section 766.3145, Florida Statutes, is created
  203  to read:
  204         766.3145 Code of ethics.—
  205         (1)On or before July 1 of each year, employees of the
  206  association must sign and submit a statement attesting that they
  207  do not have a conflict of interest as defined in part III of
  208  chapter 112. As a condition of employment, all prospective
  209  employees must sign and submit to the association a conflict-of
  210  interest statement.
  211         (2)The executive director, the ombudsman, senior managers,
  212  and members of the board of directors are subject to the code of
  213  ethics under part III of chapter 112. For purposes of applying
  214  part III of chapter 112 to activities of the executive director,
  215  senior managers, and members of the board of directors, those
  216  persons are considered public officers or employees and the
  217  association is considered their agency. A board member may not
  218  vote on any measure that would inure to his or her special
  219  private gain or loss and, notwithstanding s. 112.3143(2), may
  220  not vote on any measure that he or she knows would inure to the
  221  special private gain or loss of any principal by whom he or she
  222  is retained or to the parent organization or subsidiary of a
  223  corporate principal by which he or she is retained, other than
  224  an agency as defined in s. 112.312; or that he or she knows
  225  would inure to the special private gain or loss of a relative or
  226  business associate of the public officer. Before the vote is
  227  taken, such member shall publicly state to the board the nature
  228  of his or her interest in the matter from which he or she is
  229  abstaining from voting and, within 15 days after the vote
  230  occurs, disclose the nature of his or her interest as a public
  231  record in a memorandum filed with the person responsible for
  232  recording the minutes of the meeting, who shall incorporate the
  233  memorandum in the minutes.
  234         (3) Notwithstanding s. 112.3148, s. 112.3149, or any other
  235  law, an employee or board member may not knowingly accept,
  236  directly or indirectly, any gift or expenditure from a person or
  237  entity, or an employee or representative of such person or
  238  entity, which has a contractual relationship with the
  239  association or which is under consideration for a contract.
  240         (4)An employee or board member who fails to comply with
  241  subsection (2) or subsection (3) is subject to penalties
  242  provided under ss. 112.317 and 112.3173.
  243         (5) Any senior manager or executive director of the
  244  association who is employed on or after January 1, 2022,
  245  regardless of the date of hire, who subsequently retires or
  246  terminates employment is prohibited from representing another
  247  person or entity before the association for 2 years after
  248  retirement or termination of employment from the association.
  249         Section 6. Paragraphs (a) and (c) of subsection (1),
  250  paragraph (a) of subsection (2), and paragraph (i) of subsection
  251  (4) of section 766.315, Florida Statutes, are amended, and
  252  subsection (6) is added to that section, to read:
  253         766.315 Florida Birth-Related Neurological Injury
  254  Compensation Association; board of directors.—
  255         (1)(a) The Florida Birth-Related Neurological Injury
  256  Compensation Plan shall be governed by a board of seven five
  257  directors which shall be known as the Florida Birth-Related
  258  Neurological Injury Compensation Association. The association is
  259  not a state agency, board, or commission. Notwithstanding the
  260  provision of s. 15.03, the association is authorized to use the
  261  state seal.
  262         (c) The Chief Financial Officer shall appoint the directors
  263  shall be appointed by the Chief Financial Officer as follows:
  264         1. One citizen representative.
  265         2. One representative of participating physicians.
  266         3. One representative of hospitals.
  267         4. One representative of casualty insurers.
  268         5. One representative of physicians other than
  269  participating physicians.
  270         6.One parent or legal guardian representative of an
  271  injured infant under the plan.
  272         7.One representative of an advocacy organization for
  273  children with disabilities.
  274         (2)(a) The Chief Financial Officer may select the
  275  representative of the participating physicians from a list of at
  276  least three names recommended by the American Congress of
  277  Obstetricians and Gynecologists, District XII; the
  278  representative of hospitals from a list of at least three names
  279  recommended by the Florida Hospital Association; the
  280  representative of casualty insurers from a list of at least
  281  three names, one of which is recommended by the American
  282  Insurance Association, one of which is recommended by the
  283  Florida Insurance Council, and one of which is recommended by
  284  the Property Casualty Insurers Association of America; and the
  285  representative of physicians, other than participating
  286  physicians, from a list of three names recommended by the
  287  Florida Medical Association and a list of three names
  288  recommended by the Florida Osteopathic Medical Association.
  289  However, the Chief Financial Officer is not required to make an
  290  appointment from among the nominees of the respective
  291  associations. A participating physician who is named in a
  292  pending petition for a claim may not be appointed to the board.
  293  An appointed director who is a participating physician may not
  294  vote on any board matter relating to a claim accepted for an
  295  award for compensation if the physician was named in the
  296  petition for the claim.
  297         (4) The board of directors shall have the power to:
  298         (i) Employ or retain such persons as are necessary to
  299  perform the administrative and financial transactions and
  300  responsibilities of the plan and to perform other necessary and
  301  proper functions not prohibited by law.
  302         1.The board of directors shall employ an ombudsman who
  303  will serve at the pleasure of, and must report directly to, the
  304  board and who will act as an advocate for the parents and legal
  305  guardians of children under the plan. The board must appoint or
  306  remove the ombudsman by a majority vote with at least four
  307  affirmative votes, with the board member who is the parent or
  308  legal guardian representative of an injured child under the plan
  309  and the board member who is a representative of an advocacy
  310  organization for children with disabilities on the prevailing
  311  side.
  312         2. At a minimum, the person appointed as the ombudsman must
  313  have at least 5 years of experience and employment in the field
  314  of children with disabilities, which includes advocacy for
  315  children with disabilities.
  316         3.The ombudsman shall do all of the following:
  317         a.Provide information and assistance, outreach, and
  318  education to parents and legal guardians of children under the
  319  plan regarding plan benefits; assist parents and legal guardians
  320  in the resolution of benefit and payment disputes; and inform
  321  parents and legal guardians regarding community, state, and
  322  federal government resources.
  323         b.Investigate complaints of parents or legal guardians of
  324  children under the plan regarding the operation of the plan.
  325         c.Provide an annual report to the board regarding the
  326  ombudsman’s activities, the disposition of complaints, and any
  327  recommendations to improve the operations of the plan,
  328  resolution of disputes, and the delivery of benefits to
  329  participants.
  330         (6)On or before November 1, 2021, and by each November 1
  331  thereafter, the association shall submit an annual report to the
  332  Governor, the President of the Senate, the Speaker of the House
  333  of Representatives, and the Chief Financial Officer. The report
  334  must include:
  335         (a)The number of petitions filed for compensation with the
  336  division, the number of claimants awarded compensation, the
  337  number of claimants denied compensation, and the reasons for the
  338  denial of compensation.
  339         (b)The number and dollar amount of paid and denied
  340  compensation for expenses by category and the reasons for any
  341  denied compensation for expenses by category.
  342         (c)The average turnaround time for paying or denying
  343  compensation for expenses.
  344         (d)Legislative recommendations to improve the program.
  345         (e)A summary of any pending or resolved litigation during
  346  the year which affects the plan.
  347         (f)The amount of compensation paid to each association
  348  employee or member or the board of directors.
  349         (g)For the initial report due on or before November 1,
  350  2021, an actuarial report conducted by an independent actuary
  351  which provides an analysis of the estimated costs of
  352  implementing the following changes to the plan:
  353         1.Reducing the minimum birth weight eligibility for a
  354  participant in the plan from 2,500 grams to 2,000 grams.
  355         2.Revising the eligibility for participation in the plan
  356  by providing that an infant must be permanently and
  357  substantially mentally or physically impaired, rather than
  358  permanently and substantially mentally and physically impaired.
  359         3.Increasing the annual special benefit or quality of life
  360  benefit from $500 to $2,500 per calendar year.
  361         Section 7. The Auditor General shall conduct a performance
  362  audit of the association and plan to evaluate management’s
  363  performance in administering the laws, policies, and procedures
  364  governing the operations of the association and plan in an
  365  efficient and effective manner.
  366         (1)The audit must include evaluations of all of the
  367  following:
  368         (a)The protocols used for the payment of expenses,
  369  including standards for determining medical necessity and
  370  reasonableness of requests for medical care, services, or other
  371  benefits provided under the plan and the timeliness of the
  372  payment of expenses.
  373         (b)The effectiveness of the association’s outreach to
  374  inform parents and legal guardians of participants of available
  375  benefits and any changes in benefits and processes to resolve
  376  disputes regarding the payment of expenses internally.
  377         (c)The efficacy of the current processes for the
  378  procurement of goods and services.
  379         (d)The internal controls of the plan and association.
  380         (2)The Auditor General shall release the audit by January
  381  15, 2022.
  382         Section 8. The amendments made to s. 766.31(1)(d)1.a. and
  383  2., Florida Statutes, by this act apply to all claims filed
  384  under s. 766.305, Florida Statutes, for which an award was made
  385  through entry of final order under s. 766.31(1), Florida
  386  Statutes, on or after January 1, 2021.
  387         Section 9. The Agency for Health Care Administration shall
  388  review its Medicaid third-party liability functions and rights
  389  under s. 409.910, Florida Statutes, relative to the Florida
  390  Birth-Related Neurological Injury Compensation Plan established
  391  under s. 766.303, Florida Statutes, and must include in its
  392  review the extent and value of the liabilities owed by the plan
  393  as a third-party benefit provider. On or before November 1,
  394  2021, the agency must submit to the President of the Senate, the
  395  Speaker of the House of Representatives, and the Chief Financial
  396  Officer a report of its findings regarding the extent and value
  397  of the liabilities owed by the plan.
  398         Section 10. This act shall take effect upon becoming a law.
  399  
  400  ================= T I T L E  A M E N D M E N T ================
  401  And the title is amended as follows:
  402         Delete everything before the enacting clause
  403  and insert:
  404                        A bill to be entitled                      
  405         An act relating to the Florida Birth-Related
  406         Neurological Injury Compensation Plan; amending s.
  407         766.303, F.S.; requiring the Florida Birth-Related
  408         Neurological Injury Compensation Association to
  409         administer the Florida Birth-Related Neurological
  410         Injury Compensation Plan in a specified manner;
  411         amending s. 766.305, F.S.; requiring that, if a
  412         physician is involved in more than one filed claim,
  413         the Division of Medical Quality Assurance of the
  414         Department of Health review all such claims together
  415         when making certain determinations; providing
  416         applicability; amending s. 766.31, F.S.; revising
  417         requirements for the award for compensation for claims
  418         under the plan; increasing the maximum amount that may
  419         be awarded to the parents or legal guardians of an
  420         infant found to have sustained a birth-related
  421         neurological injury, as of a specified date; requiring
  422         that the maximum award amount be increased by a
  423         certain percentage annually; requiring the plan to
  424         provide retroactive payments to certain parents or
  425         legal guardians which are sufficient to bring the
  426         total award to a specified amount; authorizing such
  427         payments to be made in a lump sum or periodically;
  428         increasing the amount of the death benefit that must
  429         be awarded; requiring the plan to provide retroactive
  430         payments to certain parents or legal guardians which
  431         are sufficient to bring the total death benefit award
  432         to a specified amount; authorizing such payments to be
  433         made in a lump sum or periodically; requiring parents
  434         and legal guardians to submit a certain letter of
  435         medical necessity to request reimbursement for actual
  436         expenses; requiring the plan to act on a request for
  437         reimbursement of expenses within a specified
  438         timeframe; requiring the plan to notify the parents or
  439         legal guardians and the ombudsman if specific
  440         additional information or documentation is needed;
  441         requiring the plan to consult with the ombudsman
  442         before denying a request; requiring the plan to
  443         provide a detailed written explanation of the reason
  444         for a denial; requiring the plan to request a second
  445         letter of medical necessity if it denies a request on
  446         certain grounds; providing requirements for the second
  447         letter of medical necessity; requiring the plan to
  448         reimburse expenses if a second letter is provided;
  449         providing that the plan is not required to reimburse
  450         expenses if a second letter is not provided; requiring
  451         parents or legal guardians, or their designee, to
  452         submit any additional information or documentation
  453         requested by the plan within a specified timeframe;
  454         requiring the plan to pay or deny a request within a
  455         specified timeframe; providing that failure to pay or
  456         deny a request within a specified timeframe results in
  457         an uncontestable obligation to reimburse the expenses;
  458         amending s. 766.313, F.S.; revising the timeframe
  459         within which birth-related neurological injury
  460         compensation claims must be filed; creating s.
  461         766.3145, F.S.; requiring association employees to
  462         annually sign and submit a conflict-of-interest
  463         statement as a condition of employment; requiring
  464         prospective employees to sign and submit such
  465         statement as a condition of employment; providing that
  466         the executive director, the ombudsman, senior
  467         managers, and the board of directors are subject to
  468         specified provisions; prohibiting board members from
  469         voting on measures under certain circumstances;
  470         providing procedures and requirements for board
  471         members who have a conflict of interest; prohibiting
  472         employees and board members from accepting gifts or
  473         expenditures from certain individuals; providing
  474         penalties; prohibiting certain senior managers and
  475         executive directors from representing persons or
  476         entities before the association for a specified
  477         timeframe; amending s. 766.315, F.S.; revising
  478         membership of the plan’s board of directors;
  479         prohibiting certain appointed directors from voting on
  480         board matters relating to a claim if they were named
  481         in the petition for the claim; requiring the board of
  482         directors to employ an ombudsman for a specified
  483         purpose; providing appointment and removal procedures
  484         for the ombudsman; providing qualifications for and
  485         duties of the ombudsman; requiring the association to
  486         submit an annual report to the Governor, the
  487         Legislature, and the Chief Financial Officer by a
  488         specified date; providing requirements for the report;
  489         requiring that the first report include a certain
  490         actuarial report; providing requirements for the
  491         actuarial report; requiring the Auditor General to
  492         conduct a performance audit of the association and
  493         plan; providing requirements for the audit; requiring
  494         the Auditor General to release the audit by a
  495         specified date; providing applicability; requiring the
  496         Agency for Health Care Administration to conduct a
  497         certain review of its Medicaid third-party liability
  498         functions and rights with respect to the plan;
  499         requiring the agency to submit a report of its
  500         findings to the Legislature and the Chief Financial
  501         Officer by a specified date; providing an effective
  502         date.