Florida Senate - 2026 COMMITTEE AMENDMENT
Bill No. SB 1668
Ì1491821Î149182
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
02/25/2026 .
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The Appropriations Committee on Agriculture, Environment, and
General Government (Burton) recommended the following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Paragraph (a) of subsection (7) of section
6 409.910, Florida Statutes, is amended to read:
7 409.910 Responsibility for payments on behalf of Medicaid
8 eligible persons when other parties are liable.—
9 (7) The agency shall recover the full amount of all medical
10 assistance provided by Medicaid on behalf of the recipient to
11 the full extent of third-party benefits.
12 (a) Recovery of such benefits shall be collected directly
13 from:
14 1. Any third party;
15 2. The recipient or legal representative, if he or she has
16 received third-party benefits;
17 3. The provider of a recipient’s medical services if third
18 party benefits have been recovered by the provider;
19 notwithstanding any provision of this section, to the contrary,
20 however, no provider shall be required to refund or pay to the
21 agency any amount in excess of the actual third-party benefits
22 received by the provider from a third-party payor for medical
23 services provided to the recipient; or
24 4. Any person who has received the third-party benefits; or
25 5. The Florida Birth-Related Neurological Injury
26 Compensation Association for plan participant costs incurred
27 under s. 766.31.
28
29 The provisions of this subsection do not apply to any proceeds
30 received by the state, or any agency thereof, pursuant to a
31 final order, judgment, or settlement agreement, in any matter in
32 which the state asserts claims brought on its own behalf, and
33 not as a subrogee of a recipient, or under other theories of
34 liability. The provisions of this subsection do not apply to any
35 proceeds received by the state, or an agency thereof, pursuant
36 to a final order, judgment, or settlement agreement, in any
37 matter in which the state asserted both claims as a subrogee and
38 additional claims, except as to those sums specifically
39 identified in the final order, judgment, or settlement agreement
40 as reimbursements to the recipient as expenditures for the named
41 recipient on the subrogation claim.
42 Section 2. Section 766.302, Florida Statutes, is reordered
43 and amended to read:
44 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
45 766.301-766.316, the term:
46 (1)(4) “Administrative law judge” means an administrative
47 law judge appointed by the division.
48 (2)(1) “Association” means the Florida Birth-Related
49 Neurological Injury Compensation Association established in s.
50 766.315 to administer the Florida Birth-Related Neurological
51 Injury Compensation Plan and the plan of operation established
52 in s. 766.314.
53 (3)(2) “Birth-related neurological injury” means injury to
54 the brain or spinal cord of a live infant weighing at least
55 2,500 grams for a single gestation or, in the case of a multiple
56 gestation, a live infant weighing at least 2,000 grams at birth
57 caused by oxygen deprivation or mechanical injury occurring in
58 the course of labor, delivery, or resuscitation in the immediate
59 postdelivery period in a hospital, which renders the infant
60 permanently and substantially mentally and physically impaired.
61 This definition shall apply to live births only and does shall
62 not include disability or death caused by genetic or congenital
63 abnormality.
64 (4)(3) “Claimant” means any person who files a claim
65 pursuant to s. 766.305 for compensation for a birth-related
66 neurological injury to an infant. Such a claim may be filed by
67 any legal representative on behalf of an injured infant; and, in
68 the case of a deceased infant, the claim may be filed by an
69 administrator, personal representative, or other legal
70 representative thereof.
71 (5) “Division” means the Division of Administrative
72 Hearings of the Department of Management Services.
73 (6)(9) “Family member” means a father, mother, or legal
74 guardian.
75 (7)(10) “Family residential or custodial care” means care
76 normally rendered by trained professional attendants which is
77 beyond the scope of child care duties, but which is provided by
78 family members. Family members who provide nonprofessional
79 residential or custodial care may not be compensated under this
80 act for care that falls within the scope of child care duties
81 and other services normally and gratuitously provided by family
82 members. Family residential or custodial care shall be performed
83 only at the direction and control of a physician when such care
84 is medically necessary. Reasonable charges for expenses for
85 family residential or custodial care provided by a family member
86 shall be determined as follows:
87 (a) If the family member is not employed, the per-hour
88 value equals the federal minimum hourly wage.
89 (b) If the family member is employed and elects to leave
90 that employment to provide such care, the per-hour value of that
91 care shall equal the rates established by Medicaid for private
92 duty services provided by a home health aide. A family member or
93 a combination of family members providing care in accordance
94 with this definition may not be compensated for more than a
95 total of 10 hours per day. Family care is in lieu of
96 professional residential or custodial care, and no professional
97 residential or custodial care may be awarded for the period of
98 time during the day that family care is being provided.
99 (8)(6) “Hospital” means any hospital licensed in Florida.
100 (9) “Office” means the Office of Insurance Regulation.
101 (10) “Participant” means the person who suffered a birth
102 related neurological injury as an infant and who accepted
103 compensation under the plan by final order entered by an
104 administrative law judge pursuant to s. 766.309.
105 (11)(7) “Participating physician” means a physician
106 licensed in Florida to practice medicine who practices
107 obstetrics or performs obstetrical services either full time or
108 part time and who had paid or was exempted from payment at the
109 time of the injury the assessment required for participation in
110 the birth-related neurological injury compensation plan for the
111 year in which the injury occurred. Such term does shall not
112 apply to any physician who practices medicine as an officer,
113 employee, or agent of the Federal Government.
114 (12)(8) “Plan” means the Florida Birth-Related Neurological
115 Injury Compensation Plan established under s. 766.303.
116 Section 3. Section 766.303, Florida Statutes, is amended to
117 read:
118 766.303 Florida Birth-Related Neurological Injury
119 Compensation Plan; exclusiveness of remedy.—
120 (1) There is established the Florida Birth-Related
121 Neurological Injury Compensation Plan for the purpose of
122 providing compensation, irrespective of fault, for birth-related
123 neurological injuries injury claims. Such plan shall apply to
124 births occurring on or after January 1, 1989, and shall be
125 administered by the Florida Birth-Related Neurological Injury
126 Compensation Association.
127 (2) The rights and remedies granted by this plan on account
128 of a birth-related neurological injury shall exclude all other
129 rights and remedies of such infant, her or his personal
130 representative, family members parents, dependents, and next of
131 kin, at common law or otherwise, against any person or entity
132 directly involved with the labor, delivery, or immediate
133 postdelivery resuscitation during which such injury occurs,
134 arising out of or related to a medical negligence claim with
135 respect to such injury; except that a civil action may shall not
136 be foreclosed where there is clear and convincing evidence of
137 bad faith or malicious purpose or willful and wanton disregard
138 of human rights, safety, or property, provided that such suit is
139 filed prior to and in lieu of payment of an award under ss.
140 766.301-766.316. Such suit shall be filed before the award of
141 the division becomes conclusive and binding as provided for in
142 s. 766.311.
143 (3) Sovereign immunity is hereby waived on behalf of the
144 Florida Birth-Related Neurological Injury Compensation
145 Association solely to the extent necessary to assure payment of
146 compensation as provided in s. 766.31.
147 (4) The association shall administer the plan in a manner
148 that promotes and protects the health and best interests of
149 participants children with birth-related neurological injuries.
150 Section 4. Subsections (1) and (3) of section 766.305,
151 Florida Statutes, are amended to read:
152 766.305 Filing of claims and responses; medical
153 disciplinary review.—
154 (1) All claims filed for compensation under the plan must
155 shall commence by the claimant filing with the division a
156 petition that includes all of seeking compensation. Such
157 petition shall include the following information:
158 (a) The name and address of the legal representative and
159 the basis for her or his representation of the injured infant.
160 (b) The name and address of the injured infant.
161 (c) The name and address of any physician providing
162 obstetrical services who was present at the birth and the name
163 and address of the hospital at which the birth occurred.
164 (d) A description of the disability for which the claim is
165 made.
166 (e) The time and place the injury occurred.
167 (f) A brief statement of the facts and circumstances
168 surrounding the injury and giving rise to the claim.
169 (3) The claimant shall furnish to the Florida Birth-Related
170 Neurological Injury Compensation association the following
171 information, which must be filed with the association within 10
172 days after the filing of the petition as set forth in subsection
173 (1):
174 (a) All available relevant medical records relating to the
175 birth-related neurological injury and a list identifying any
176 unavailable records known to the claimant and the reasons for
177 the records’ unavailability.
178 (b) Appropriate assessments, evaluations, and prognoses and
179 such other records and documents as are reasonably necessary for
180 the determination of the amount of compensation to be paid to,
181 or on behalf of, the injured infant on account of the birth
182 related neurological injury.
183 (c) Documentation of expenses and services incurred to date
184 which identifies any payment made for such expenses and services
185 and the payor.
186 (d) Documentation of any applicable private or governmental
187 source of services or reimbursement relative to the impairments.
188
189 The information required by paragraphs (a)-(d) shall remain
190 confidential and exempt under the provisions of s. 766.315(6)(b)
191 s. 766.315(5)(b).
192 Section 5. Paragraph (a) of subsection (1) of section
193 766.309, Florida Statutes, is amended to read:
194 766.309 Determination of claims; presumption; findings of
195 administrative law judge binding on participants.—
196 (1) The administrative law judge shall make the following
197 determinations based upon all available evidence:
198 (a) Whether the injury claimed is a birth-related
199 neurological injury. If the claimant has demonstrated, to the
200 satisfaction of the administrative law judge, that the infant
201 has sustained a brain or spinal cord injury caused by oxygen
202 deprivation or mechanical injury and that the infant was thereby
203 rendered permanently and substantially mentally and physically
204 impaired, a rebuttable presumption shall arise that the injury
205 is a birth-related neurological injury as defined in s. 766.302
206 s. 766.302(2).
207 Section 6. Section 766.31, Florida Statutes, is amended to
208 read:
209 766.31 Administrative law judge awards for birth-related
210 neurological injuries; notice of award.—
211 (1) Upon determining that an infant has sustained a birth
212 related neurological injury and that obstetrical services were
213 delivered by a participating physician at the birth, the
214 administrative law judge shall make an award providing
215 compensation for the following items relative to such injury:
216 (a) Actual expenses incurred since the date of birth for
217 medically necessary and reasonable:
218 1. Medical and hospital care and services;,
219 2. Habilitative services; and training,
220 3. Dental services;
221 4. Family residential or custodial care;,
222 5. Professional residential care;, and
223 6. Professional custodial care; and service,
224 7. for medically necessary Drugs;,
225 8. Special equipment;, and facilities, and
226 9. for Related travel.
227 (b) At a minimum, compensation must be provided for the
228 following actual expenses:
229 1. Psychotherapeutic services for A total annual benefit of
230 up to $10,000 for immediate family members and other relatives
231 who have resided reside with the participant, which are infant
232 for psychotherapeutic services obtained from a psychiatrist
233 licensed under chapter 458 or chapter 459, a provider providers
234 licensed under chapter 490 or chapter 491, or a psychiatrist or
235 provider who has equivalent licensure by another jurisdiction.
236 This benefit for such family members and relatives shall be up
237 to a total of $10,000 annually during the participant’s lifetime
238 and up to a total of $20,000 subsequent to the participant’s
239 death.
240 2. For the life of the participant child, providing family
241 members parents or legal guardians with a reliable method of
242 transporting transportation for the care of the participant and
243 child or reimbursing the cost of upgrading an existing vehicle
244 to accommodate the participant’s wheelchair and medically
245 necessary equipment child’s needs when it becomes medically
246 necessary for wheelchair transportation. The mode of
247 transportation must take into account the special accommodations
248 required for the specific child. The plan may not limit such
249 transportation assistance based on the participant’s child’s age
250 or weight. The plan must replace any vehicle vans purchased by
251 the plan every 7 years or 150,000 miles, whichever comes first.
252 3. Housing assistance of up to $100,000 for the life of the
253 participant child, including, but not limited to, a down payment
254 on a new home, moving expenses, and home construction and
255 modification costs.
256 4. Legal costs associated with establishing and maintaining
257 guardianship for a participant.
258 (c)1. The costs of a health insurance policy or contract
259 that provides major medical or similar comprehensive health
260 coverage for the participant obtained pursuant to subsection
261 (3), including, but not limited to, the premium and out-of
262 pocket costs. For participants enrolled in the state Medicaid
263 program, the plan must reimburse fee-for-service paid claims and
264 capitation payments, as applicable, for services provided to
265 such participants pursuant to this section and for the
266 administrative and support costs associated with the provided
267 medical assistance. Such funds shall be credited to the Agency
268 for Health Care Administration’s Medical Care Trust Fund.
269 2. By December 31, 2026, the plan shall reimburse any
270 participant for reasonable, medically necessary care received by
271 the participant on or before June 30, 2026, which was reduced or
272 not paid by the plan because such participant did not have
273 health coverage.
274 (d)(b) However, the following expenses are not subject to
275 compensation:
276 1. Expenses for items or services that the participant
277 infant has received, or is entitled to receive, under the laws
278 of any state or the Federal Government, except to the extent
279 such exclusion may be prohibited by federal law.
280 2. Expenses for items or services that the participant
281 infant has received, or is contractually entitled to receive,
282 from any prepaid health plan, health maintenance organization,
283 or other private insuring entity.
284 3. Expenses for which the participant infant has received
285 reimbursement, or for which the participant infant is entitled
286 to receive reimbursement, under the laws of any state or the
287 Federal Government, except to the extent such exclusion may be
288 prohibited by federal law.
289 4. Expenses for which the participant infant has received
290 reimbursement, or for which the participant infant is
291 contractually entitled to receive reimbursement, pursuant to the
292 provisions of any health or sickness insurance policy or other
293 private insurance program.
294 5. Expenses for family residential or custodial care
295 provided by a family member while:
296 a. Care and supervision of the participant is
297 simultaneously being provided by another person or entity; or
298 b. The family member receives compensation from another
299 source for work performed during the same time for which
300 compensation is sought from the association.
301 (e)(c) Expenses included under paragraphs paragraph (a) and
302 (b) are limited to reasonable charges prevailing in the same
303 community for similar treatment of injured persons when such
304 treatment is paid for by the injured person.
305 (f)1. A family member The parents or legal guardians
306 receiving benefits under the plan may file a petition with the
307 division of Administrative Hearings to dispute the amount of
308 actual expenses reimbursed or a denial of reimbursement.
309 2. In the case of an alleged overpayment of an expense
310 reimbursement by the association to a family member, if the
311 family member does not agree that an overpayment has occurred,
312 the association may file a petition for division review of the
313 overpayment for a determination of the amount, if any, to be
314 recouped by the association.
315 (g)1.(d)1.a. Periodic payments of an award to the family
316 members parents or legal guardians of the participant infant
317 found to have sustained a birth-related neurological injury,
318 which award may not exceed $100,000. However, at the discretion
319 of the administrative law judge, such award may be made in a
320 lump sum. Beginning on January 1, 2021, the award may not exceed
321 $250,000, and each January 1 thereafter, the maximum award
322 authorized under this paragraph shall increase by 3 percent.
323 b. Parents or legal guardians who received an award
324 pursuant to this section before January 1, 2021, must receive a
325 retroactive payment in an amount sufficient to bring the total
326 award paid to the parents or legal guardians pursuant to sub
327 subparagraph a. to $250,000. This additional payment may be made
328 in a lump sum or in periodic payments as designated by the
329 parents or legal guardians and must be paid by July 1, 2021.
330 2.a. Death benefit for the participant infant in an amount
331 of $50,000.
332 b. Parents or legal guardians who received an award
333 pursuant to this section, and whose child died since the
334 inception of the program, must receive a retroactive payment in
335 an amount sufficient to bring the total award paid to the
336 parents or legal guardians pursuant to sub-subparagraph a. to
337 $50,000. This additional payment may be made in a lump sum or in
338 periodic payments as designated by the parents or legal
339 guardians and must be paid by July 1, 2021.
340 (h)(e) Reasonable expenses incurred in connection with the
341 filing of a claim under ss. 766.301-766.316, including
342 reasonable attorney attorney’s fees, which shall be subject to
343 the approval and award of the administrative law judge. In
344 determining an award for attorney attorney’s fees, the
345 administrative law judge shall consider the following factors:
346 1. The time and labor required, the novelty and difficulty
347 of the questions involved, and the skill requisite to perform
348 the legal services properly.
349 2. The fee customarily charged in the locality for similar
350 legal services.
351 3. The time limitations imposed by the claimant or the
352 circumstances.
353 4. The nature and length of the professional relationship
354 with the claimant.
355 5. The experience, reputation, and ability of the lawyer or
356 lawyers performing services.
357 6. The contingency or certainty of a fee.
358
359 If there is Should there be a final determination of
360 compensability, and the claimants accept an award under this
361 section, the claimants are not liable for any expenses,
362 including attorney fees, incurred in connection with the filing
363 of a claim under ss. 766.301-766.316 other than those expenses
364 awarded under this section.
365 (2) The award shall require the immediate payment of
366 expenses previously incurred and shall require that future
367 expenses be paid as incurred.
368 (3) A family member must continuously maintain
369 comprehensive major medical health coverage for the participant.
370 (a) If the participant does not have such coverage at the
371 time of entry of a final order by an administrative law judge
372 approving a claim for compensation, the family member must
373 obtain coverage within 60 days after entry of such order or
374 apply for Medicaid coverage within 30 days after entry of such
375 order.
376 (b) If the participant is determined to be ineligible for
377 Medicaid, the family member must obtain other coverage within 60
378 days after receiving the Medicaid application denial.
379 (c) A family member of an individual who is a participant
380 on June 30, 2026, must obtain the required coverage for the
381 participant by January 1, 2027.
382 (4)(3) A copy of the award shall be sent immediately by
383 registered or certified mail to each person served with a copy
384 of the petition under s. 766.305(2).
385 Section 7. Section 766.314, Florida Statutes, is amended to
386 read:
387 766.314 Assessments; plan of operation.—
388 (1) The assessments established under pursuant to this
389 section shall be used to finance the Florida Birth-Related
390 Neurological Injury Compensation Plan.
391 (2) The assessments and appropriations dedicated to the
392 plan shall be administered by the Florida Birth-Related
393 Neurological Injury Compensation Association established in s.
394 766.315, in accordance with the following requirements:
395 (a) On or before July 1, 1988, The directors of the
396 association shall submit to the office Department of Insurance
397 for review and approval a plan of operation and any amendment
398 thereto which shall provide for the efficient administration of
399 the plan and for prompt processing of claims against and awards
400 made on behalf of the plan.
401 (b) The plan of operation must shall include provision for:
402 1. Establishment of necessary facilities;
403 2. Management of the funds collected on behalf of the plan;
404 3. Processing of claims against the plan;
405 4. Assessment of the persons and entities listed in
406 subsections (4) and (5) to pay awards and expenses, which
407 assessments shall be on an actuarially sound basis subject to
408 the limits set forth in subsections (4) and (5);
409 5. A fraud and overpayment prevention and detection
410 program; and
411 6.5. Any other matters necessary for the efficient
412 operation of the Florida Birth-Related Neurological Injury
413 Compensation Plan.
414 (b) Amendments to the plan of operation may be made by the
415 directors of the plan, subject to the approval of the office of
416 Insurance Regulation of the Financial Services Commission.
417 (3) All assessments shall be deposited with the Florida
418 Birth-Related Neurological Injury Compensation association. The
419 funds collected by the association and any income therefrom
420 shall be disbursed only for the payment of awards under ss.
421 766.301-766.316 and for the payment of the reasonable expenses
422 of administering the plan.
423 (4) The following persons and entities shall pay into the
424 association assessments as follows an initial assessment in
425 accordance with the plan of operation:
426 (a)1. On or before October 1, 1988, Each hospital licensed
427 under chapter 395 shall pay an initial assessment of $50 per
428 infant delivered in that the hospital during the prior calendar
429 year, as reported to the Agency for Health Care Administration;
430 provided, however, that a hospital owned or operated by the
431 state or a county, special taxing district, or other political
432 subdivision of the state shall not be required to pay the
433 initial assessment or any assessment required by this subsection
434 or subsection (5). The term “infant delivered” includes live
435 births and not stillbirths, but the term does not include
436 infants delivered by employees or agents of the board of
437 trustees of a state university, those born in a teaching
438 hospital as defined in s. 408.07, or those born in a teaching
439 hospital as defined in s. 395.806 that have been deemed by the
440 association as being exempt from assessments since fiscal year
441 1997 to fiscal year 2001. The initial assessment and any
442 assessment imposed pursuant to subsection (5) may not include
443 any infant born to a charity patient (as defined by rule of the
444 Agency for Health Care Administration) or born to a patient for
445 whom the hospital receives Medicaid reimbursement, if the sum of
446 the annual charges for charity patients plus the annual Medicaid
447 contractuals of the hospital exceeds 10 percent of the total
448 annual gross operating revenues of the hospital. The hospital is
449 responsible for documenting, to the satisfaction of the
450 association, the exclusion of any birth from the computation of
451 the assessment. Upon demonstration of financial need by a
452 hospital, the association may provide for installment payments
453 of assessments.
454 2. Assessments are due, and hospitals shall pay all
455 assessments required under this section, by December 31 of the
456 calendar year immediately subsequent to the birth year.
457 (b)1.a. On or before October 15, 1988, All physicians
458 licensed pursuant to chapter 458 or chapter 459 as of October 1,
459 1988, other than participating physicians, shall be assessed an
460 annual initial assessment of $250.,
461 b. Payment for all assessments required under this
462 paragraph is due on or before December 31 of each year which
463 must be paid no later than December 1, 1988.
464 2. Any such physician who becomes licensed after September
465 30, 1988, and before January 1, 1989, shall pay into the
466 association an initial assessment of $250 upon licensure.
467 3. Any such physician who becomes licensed on or after
468 January 1, 1989, shall pay an initial assessment equal to the
469 most recent assessment made pursuant to this paragraph,
470 paragraph (5)(a), or paragraph (7)(b).
471 2.4. However, if the physician is a physician specified in
472 this subparagraph, the assessment is not applicable:
473 a. A resident physician, assistant resident physician, or
474 intern in an approved postgraduate training program, as defined
475 by the Board of Medicine or the Board of Osteopathic Medicine by
476 rule;
477 b. A retired physician who has withdrawn from the practice
478 of medicine but who maintains an active license as evidenced by
479 an affidavit filed with the Department of Health. Prior to
480 reentering the practice of medicine in this state, a retired
481 physician as herein defined must notify the Board of Medicine or
482 the Board of Osteopathic Medicine and pay the appropriate
483 assessments pursuant to this section;
484 c. A physician who holds a limited license pursuant to s.
485 458.317 and who is not being compensated for medical services;
486 d. A physician who is employed full time by the United
487 States Department of Veterans Affairs and whose practice is
488 confined to United States Department of Veterans Affairs
489 hospitals; or
490 e. A physician who is a member of the Armed Forces of the
491 United States and who meets the requirements of s. 456.024.
492 f. A physician who is employed full time by the State of
493 Florida and whose practice is confined to state-owned
494 correctional institutions, a county health department, or state
495 owned mental health or developmental services facilities, or who
496 is employed full time by the Department of Health.
497 (c)1. On or before December 1, 1988, Each physician
498 licensed pursuant to chapter 458 or chapter 459 who wishes to
499 participate in the Florida Birth-Related Neurological Injury
500 Compensation Plan and who otherwise qualifies as a participating
501 physician under ss. 766.301-766.316 shall pay an annual initial
502 assessment of $5,000 and any assessment required under paragraph
503 (5)(a), if assessed. However, if the physician is either a
504 resident physician, assistant resident physician, or intern in
505 an approved postgraduate training program, as defined by the
506 Board of Medicine or the Board of Osteopathic Medicine by rule,
507 and is supervised in accordance with program requirements
508 established by the Accreditation Council for Graduate Medical
509 Education or the American Osteopathic Association by a physician
510 who is participating in the plan, such resident physician,
511 assistant resident physician, or intern is deemed to be a
512 participating physician without the payment of the assessment.
513 Participating physicians also include any employee of the board
514 of trustees of a state university who has paid the assessment
515 required by this paragraph and, if assessed, paragraph (5)(a),
516 and any certified nurse midwife supervised by such employee.
517 Participating physicians include any certified nurse midwife who
518 has paid 50 percent of the physician assessment required by this
519 paragraph and, if assessed, paragraph (5)(a) and who is
520 supervised by a participating physician who has paid the
521 assessment required by this paragraph and, if assessed,
522 paragraph (5)(a). Supervision for nurse midwives shall require
523 that the supervising physician will be easily available and have
524 a prearranged plan of treatment for specified patient problems
525 which the supervised certified nurse midwife may carry out in
526 the absence of any complicating features. Any physician who
527 elects to participate in such plan on or after January 1, 1989,
528 who was not a participating physician at the time of such
529 election to participate and who otherwise qualifies as a
530 participating physician under ss. 766.301-766.316 shall pay an
531 additional initial assessment equal to the most recent
532 assessment made pursuant to this paragraph, paragraph (5)(a), or
533 paragraph (7)(b).
534 2. Payment of assessments required by this paragraph is due
535 on or before December 31 of each year for qualification as a
536 participating physician during the next calendar year. If
537 payment of the assessments is received by the association on or
538 before January 31 of any calendar year, the physician shall
539 qualify as a participating physician for that entire calendar
540 year. If the payment is received after January 31, the physician
541 shall qualify as a participating physician for that calendar
542 year only from the date the payment was received by the
543 association.
544 (d) Any hospital located in a county with a population in
545 excess of 1.1 million as of January 1, 2003, as determined by
546 the Agency for Health Care Administration under the Health Care
547 Responsibility Act, may elect to pay the assessments required by
548 paragraph (c) fee for the participating physician and the
549 certified nurse midwife if the hospital first determines that
550 the primary motivating purpose for making such payment is to
551 ensure coverage for the hospital’s patients under the provisions
552 of ss. 766.301-766.316; however, no hospital may restrict any
553 participating physician or nurse midwife, directly or
554 indirectly, from being on the staff of hospitals other than the
555 staff of the hospital making the payment. Each hospital shall
556 file with the association an affidavit setting forth
557 specifically the reasons why the hospital elected to make the
558 payment on behalf of each participating physician and certified
559 nurse midwife. The payments authorized under this paragraph
560 shall be in addition to the assessment set forth in paragraph
561 (5)(a).
562 (5)(a) Beginning January 1, 1990, The persons and entities
563 listed in paragraphs (4)(b) and (c), except those persons or
564 entities who are specifically excluded from such said
565 provisions, as of the date determined in accordance with the
566 plan of operation, taking into account persons licensed
567 subsequent to the payment of the initial assessment, shall pay
568 an annual assessment in the amount equal to the initial
569 assessments provided in paragraphs (4)(b) and (c). If payment of
570 the annual assessment by a physician is received by the
571 association by January 31 of any calendar year, the physician
572 shall qualify as a participating physician for that entire
573 calendar year. If the payment is received after January 31 of
574 any calendar year, the physician shall qualify as a
575 participating physician for that calendar year only from the
576 date the payment was received by the association. On January 1,
577 1991, and on each January 1 thereafter, the association shall
578 determine the amount of additional assessments necessary
579 pursuant to subsection (7), in the manner required by the plan
580 of operation, subject to any increase determined to be necessary
581 by the office of Insurance Regulation pursuant to paragraph
582 (7)(b). On July 1, 1991, and on each July 1 thereafter, the
583 persons and entities listed in paragraphs (4)(b) and (c), except
584 those persons or entities who are specifically excluded from
585 such said provisions, shall pay the additional assessments which
586 were determined on January 1. Beginning January 1, 1990, the
587 entities listed in paragraph (4)(a), including those licensed on
588 or after October 1, 1988, shall pay an annual assessment of $50
589 per infant delivered during the prior calendar year. The
590 additional assessments which were determined on January 1, 1991,
591 pursuant to the provisions of subsection (7) shall not be due
592 and payable by the entities listed in paragraph (4)(a) until
593 July 1.
594 (b) If the assessments collected pursuant to subsection (4)
595 and the appropriation of funds provided by s. 76, chapter 88-1,
596 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
597 Florida, to the plan from the Insurance Regulatory Trust Fund
598 are insufficient to maintain the plan on an actuarially sound
599 basis, there is hereby appropriated for transfer to the
600 association from the Insurance Regulatory Trust Fund an
601 additional amount of up to $20 million.
602 (c)1. Taking into account the assessments collected
603 pursuant to subsection (4) and appropriations from the Insurance
604 Regulatory Trust Fund, if required to maintain the plan on an
605 actuarially sound basis, the office of Insurance Regulation
606 shall require each entity licensed to issue casualty insurance
607 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
608 association an annual assessment in an amount determined by the
609 office pursuant to paragraph (7)(a), in the manner required by
610 the plan of operation.
611 2. All annual assessments shall be made on the basis of net
612 direct premiums written for the business activity that which
613 forms the basis for each such entity’s inclusion as a funding
614 source for the plan in the state during the prior year ending
615 December 31, as reported to the office of Insurance Regulation,
616 and shall be in the proportion that the net direct premiums
617 written by each carrier on account of the business activity
618 forming the basis for its inclusion in the plan bears to the
619 aggregate net direct premiums for all such business activity
620 written in this state by all such entities.
621 3. No entity listed in this paragraph shall be individually
622 liable for an annual assessment in excess of 0.25 percent of
623 that entity’s net direct premiums written.
624 4. Casualty insurance carriers shall be entitled to recover
625 their initial and annual assessments through a surcharge on
626 future policies, a rate increase applicable prospectively, or a
627 combination of the two.
628 (6)(a) The association shall make all assessments required
629 by this section, except initial assessments of physicians newly
630 licensed by the Department of Health, which assessments will be
631 made by the Department of Health, and except assessments of
632 casualty insurers pursuant to subparagraph (5)(c)1., which
633 assessments will be made by the office of Insurance Regulation.
634 The Department of Health shall provide the association, in an
635 electronic format, with a monthly report of the names and
636 license numbers of all physicians licensed under chapter 458 or
637 chapter 459.
638 (b)1. The association may enforce collection of assessments
639 required to be paid pursuant to ss. 766.301-766.316 by suit
640 filed in county court, or in circuit court if the amount due
641 could exceed the jurisdictional limits of county court. The
642 association is entitled to an award of attorney fees, costs, and
643 interest upon the entry of a judgment against a physician for
644 failure to pay such assessment, with such interest accruing
645 until paid. Notwithstanding chapters 47 and 48, the association
646 may file such suit in either Leon County or the county of the
647 residence of the defendant. The association shall notify the
648 Department of Health and the applicable board of any unpaid
649 final judgment against a physician within 7 days after the entry
650 of final judgment.
651 2. The Department of Health, upon notification by the
652 association that an assessment has not been paid and that there
653 is an unsatisfied judgment against a physician, shall refuse to
654 renew any license issued to such physician under chapter 458 or
655 chapter 459 until the association notifies the Department of
656 Health that the judgment is satisfied in full.
657 (c) The Agency for Health Care Administration shall, upon
658 notification by the association that an assessment has not been
659 timely paid, enforce collection of such assessments required to
660 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
661 a hospital to pay such assessment is grounds for disciplinary
662 action pursuant to s. 395.1065 notwithstanding any law to the
663 contrary.
664 (7)(a) The office of Insurance Regulation shall undertake
665 an actuarial investigation of the requirements of the plan based
666 on the plan’s experience in the first year of operation and any
667 additional relevant information, including without limitation
668 the assets and liabilities of the plan. Pursuant to such
669 investigation, the office of Insurance Regulation shall
670 establish the rate of contribution of the entities listed in
671 paragraph (5)(c) for the tax year beginning January 1, 1990.
672 Following the initial valuation, the office of Insurance
673 Regulation shall cause an actuarial valuation to be made of the
674 assets and liabilities of the plan no less frequently than
675 biennially. Pursuant to the results of such valuations, the
676 office of Insurance Regulation shall prepare a statement as to
677 the contribution rate applicable to the entities listed in
678 paragraph (5)(c). However, at no time shall the rate be greater
679 than 0.25 percent of net direct premiums written.
680 (b) If the office of Insurance Regulation finds that the
681 plan cannot be maintained on an actuarially sound basis based on
682 the assessments and appropriations listed in subsections (4) and
683 (5), the office shall increase the assessments specified in
684 subsection (4) on a proportional basis as needed.
685 (8) The association shall report to the Legislature its
686 determination as to the annual cost of maintaining the fund on
687 an actuarially sound basis. In making its determination, the
688 association shall consider the recommendations of all hospitals,
689 physicians, casualty insurers, attorneys, consumers, and any
690 associations representing any such person or entity.
691 Notwithstanding the provisions of s. 395.3025, all hospitals,
692 casualty insurers, departments, boards, commissions, and
693 legislative committees shall provide the association with all
694 relevant records and information upon request to assist the
695 association in making its determination. All hospitals shall,
696 upon request by the association, provide the association with
697 information from their records regarding any live birth. Such
698 information may shall not include the name of any physician, the
699 name of any hospital employee or agent, the name of the patient,
700 or any other information which will identify the infant involved
701 in the birth. Such information thereby obtained must shall be
702 utilized solely for the purpose of assisting the association and
703 may shall not subject the hospital to any civil or criminal
704 liability for the release thereof. Such information shall
705 otherwise be confidential and exempt from the provisions of s.
706 119.07(1) and s. 24(a), Art. I of the State Constitution.
707 (9)(a) Within 60 days after a claim is filed, the
708 association shall estimate the present value of the total cost
709 of the claim, including the estimated amount to be paid to the
710 claimant, the claimant’s attorney, the attorney attorney’s fees
711 of the association incident to the claim, and any other expenses
712 that are reasonably anticipated to be incurred by the
713 association in connection with the adjudication and payment of
714 the claim. For purposes of this estimate, the association should
715 include the maximum benefits for noneconomic damages.
716 (b) The association shall revise these estimates quarterly
717 based upon the actual costs incurred and any additional
718 information that becomes available to the association since the
719 last review of this estimate. The estimate shall be reduced by
720 any amounts paid by the association that were included in the
721 current estimate. The association shall submit revised quarterly
722 claim estimates to the office within 15 business days after the
723 end of each quarter.
724 (c)1. If the total of all current estimates equals or
725 exceeds 100 percent of the funds on hand and the funds that will
726 become available to the association within the next 12 months
727 from all sources described in subsection (4) and paragraph
728 (5)(a), the association may not accept any new claims without
729 express authority from the Legislature. This section does not
730 preclude the association from accepting any claim if the injury
731 occurred 18 months or more before the effective date of this
732 suspension. Within 30 days after the effective date of this
733 suspension, the association shall notify the Governor, the
734 President of the Senate, the Speaker of the House of
735 Representatives, the President of the Senate, the office of
736 Insurance Regulation, the Agency for Health Care Administration,
737 and the Department of Health of this suspension.
738 2. Notwithstanding this paragraph, the association is
739 authorized to accept new claims during the 2026-2027 2025-2026
740 fiscal year even if the total of all current estimates exceeds
741 the limits described in subparagraph 1. during that fiscal year;
742 however, if the total of all current estimates exceeds such
743 limits, the association must notify the Governor, the President
744 of the Senate, the Speaker of the House of Representatives, the
745 office, the Agency for Health Care Administration, and the
746 Department of Health within 5 days after it makes such
747 determination. This subparagraph expires July 1, 2027 2026.
748 (d) If any person is precluded from asserting a claim
749 against the association because of paragraph (c), the plan shall
750 not constitute the exclusive remedy for such person, his or her
751 personal representative, parents, dependents, or next of kin.
752 Section 8. Present subsections (5) through (8) of section
753 766.315, Florida Statutes, are redesignated as subsections (6)
754 through (9), respectively, a new subsection (5) is added to that
755 section, and subsection (1), paragraph (e) of present subsection
756 (5), and present subsections (7) and (8) of that section are
757 amended, to read:
758 766.315 Florida Birth-Related Neurological Injury
759 Compensation Association; board of directors; notice of
760 meetings; report.—
761 (1)(a) The Florida Birth-Related Neurological Injury
762 Compensation Plan shall be governed by a board of seven
763 directors which shall be known as the Florida Birth-Related
764 Neurological Injury Compensation Association. The association is
765 not a state agency, board, or commission. Notwithstanding the
766 provision of s. 15.03, the association is authorized to use the
767 state seal.
768 (b) The directors shall be appointed for staggered terms of
769 3 years or until their successors are appointed and have
770 qualified; however, a director may not serve for more than 6
771 consecutive years.
772 (c) The directors shall be appointed by the Chief Financial
773 Officer as follows:
774 1. One citizen representative who is not affiliated with
775 any of the groups identified in subparagraphs 2.-7.
776 2. One representative of participating physicians.
777 3. One representative of hospitals.
778 4. One representative of casualty insurers.
779 5. One representative of physicians other than
780 participating physicians.
781 6. One family member of a participant parent or legal
782 guardian representative of an injured infant under the plan.
783 7. One representative of an advocacy organization for
784 children with disabilities.
785 (5) Notwithstanding this section, the board of directors
786 may not create new benefits or expand existing benefits that
787 result in additional costs to the plan if the plan is operating
788 at an annual cash flow deficit, as documented in the plan’s
789 audited financial statements for the prior fiscal year.
790 (6)(5)
791 (e) Annually, the association shall furnish audited
792 financial reports to any plan participant upon request, to the
793 office of Insurance Regulation of the Financial Services
794 Commission, and to the Joint Legislative Auditing Committee. The
795 reports must be prepared in accordance with generally accepted
796 auditing standards accounting procedures and must include such
797 information as may be required by the office of Insurance
798 Regulation or the Joint Legislative Auditing Committee. At any
799 time determined to be necessary, the office of Insurance
800 Regulation or the Joint Legislative Auditing Committee may
801 conduct an audit of the plan.
802 (8)(7) The association shall publish a report on its
803 website by January 1 of each year. The report must shall include
804 all of the following:
805 (a) The names and terms of each board member and executive
806 staff member.
807 (b) The amount of compensation paid to each association
808 employee or independent contractor.
809 (c) A summary of reimbursement disputes and resolutions.
810 (d) A list of expenditures for attorney fees and lobbying
811 fees.
812 (e) Other expenses to oppose each plan claim. Any personal
813 identifying information of the parent, legal guardian, or child
814 involved in the claim must be removed from this list.
815 (9)(8) By November 1 of each year, the association shall
816 submit a report to the Governor, the President of the Senate,
817 the Speaker of the House of Representatives, and the Chief
818 Financial Officer. The report must include all of the following:
819 (a) The number of petitions filed for compensation with the
820 division, the number of claimants awarded compensation, the
821 number of claimants denied compensation, and the reasons for the
822 denial of compensation.
823 (b) The number and dollar amount of paid and denied
824 compensation for expenses by category and the reasons for any
825 denied compensation for expenses by category.
826 (c) The average turnaround time for paying or denying
827 compensation for expenses.
828 (d) Legislative recommendations to improve the program.
829 (e) A summary of any pending or resolved litigation during
830 the year which affects the plan.
831 (f) The amount of compensation paid to each association
832 employee, independent contractor, or member of the board of
833 directors.
834 Section 9. This act shall take effect July 1, 2026.
835
836 ================= T I T L E A M E N D M E N T ================
837 And the title is amended as follows:
838 Delete everything before the enacting clause
839 and insert:
840 A bill to be entitled
841 An act relating to the Florida Birth-Related
842 Neurological Injury Compensation Association; amending
843 s. 409.910, F.S.; requiring the Agency for Health Care
844 Administration to recover from the Florida Birth
845 Related Neurological Injury Compensation Association
846 specified costs incurred by Medicaid; reordering and
847 amending s. 766.302, F.S.; defining the terms “office”
848 and “participant”; revising definitions; amending s.
849 766.303, F.S.; revising the exclusiveness of rights
850 and remedies of the Florida Birth-Related Neurological
851 Injury Compensation Plan; making technical and
852 conforming changes; amending s. 766.305, F.S.; making
853 technical and conforming changes; amending s. 766.309,
854 F.S.; conforming a cross-reference; amending s.
855 766.31, F.S.; revising the expenses covered by an
856 award for compensation under the plan; revising
857 services eligible for compensation under certain
858 annual benefits under the plan; providing an
859 additional benefit for psychotherapeutic services for
860 family members upon the death of a participant;
861 revising eligibility criteria for transportation and
862 housing assistance benefits under the plan; providing
863 coverage of certain legal costs under the plan;
864 requiring the plan to reimburse certain claims and
865 payments for plan participants also enrolled in the
866 state Medicaid program; requiring that such funds be
867 credited to the agency’s Medical Care Trust Fund;
868 requiring the plan to reimburse certain participants
869 by a specified date; prohibiting compensation under
870 the plan for family residential or custodial care
871 under certain circumstances; authorizing the
872 association to file a petition with the Division of
873 Administrative Hearings if there is a dispute
874 regarding overpayment of an expense reimbursement
875 under the plan; deleting obsolete language; requiring
876 family members of plan participants to continuously
877 maintain certain health insurance coverage for the
878 participant; requiring family members of plan
879 participants to obtain such coverage or apply for
880 Medicaid coverage within a specified timeframe after
881 entry of a final order for an award for compensation
882 under the plan; requiring family members of current
883 plan participants to obtain the requisite health
884 insurance coverage by a specified date; amending s.
885 766.314, F.S.; requiring the directors of the
886 association to submit a plan of operation, and any
887 amendments thereto, to the Office of Insurance
888 Regulation for approval; revising requirements for
889 such plan; revising the schedule of assessments
890 participating hospitals and physicians are required to
891 pay to the association; deleting obsolete language;
892 making technical and conforming changes; requiring the
893 association to submit revised quarterly claim
894 estimates to the office within a specified timeframe;
895 extending the timeframe in which the association is
896 authorized to accept new claims notwithstanding
897 certain other provisions; requiring the association to
898 notify the Governor, the Legislature, the office, the
899 agency, and the Department of Health within a
900 specified timeframe if certain plan estimates exceed
901 specified limits; postponing the future repeal of a
902 specified provision; amending s. 766.315, F.S.;
903 revising membership of the association’s board of
904 directors; prohibiting the board of directors from
905 creating new benefits or expanding existing benefits
906 under the plan under certain circumstances; revising
907 requirements for certain reports of the association;
908 providing an effective date.