Florida Senate - 2026 SB 1668
By Senator Burton
12-01354A-26 20261668__
1 A bill to be entitled
2 An act relating to the Florida Birth-Related
3 Neurological Injury Compensation Association; amending
4 s. 409.910, F.S.; requiring the agency to recover the
5 full amount of medical assistance from the
6 neurological injury compensation association; amending
7 s. 766.302, F.S.; defining terms and revising
8 definitions; amending s. 766.303, F.S.; revising the
9 exclusiveness of remedy under the Florida Birth
10 Related Neurological Injury Compensation Plan;
11 amending s. 766.305, F.S.; revising provisions
12 relating to filing claims; amending s. 766.309, F.S.;
13 conforming a cross-reference; amending s. 766.31,
14 F.S.; revising the list of items eligible for an award
15 providing compensation; requiring that compensation be
16 provided for certain actual expenses; requiring
17 compensation for the costs of major medical health
18 coverage; requiring the plan to reimburse certain
19 payments made for services provided; exempting
20 expenses for professional custodial care in certain
21 circumstances; requiring that, upon entry of a final
22 order for compensation, parents or legal guardians
23 obtain private health insurance or submit an
24 application for the Medicare program; amending s.
25 766.314, F.S.; requiring the directors to maintain a
26 plan of operation; requiring that certain assessments
27 be paid into the Florida Birth-Related Neurological
28 Injury Compensation Association at certain times for
29 certain purposes; requiring that the plan of operation
30 include a provision for fraud; deleting obsolete
31 provisions; revising provisions relating to an
32 actuarial valuation of the plan; requiring the
33 association to submit quarterly estimates; requiring
34 the association to state whether the plan is
35 actuarially sound; authorizing a transfer of funds to
36 the association from the Insurance Regulatory Trust
37 Fund if the plan is not actuarially sound; requiring
38 the association to require each entity to issue
39 casualty insurance and pay an annual assessment;
40 providing requirements for annual assessments;
41 requiring an increase in assessments after certain
42 findings; requiring the association to determine
43 whether the plan is actuarially sound after certain
44 revisions; providing criteria for such determination;
45 requiring notification to the Governor, Legislature,
46 and Office of Insurance Regulation after certain
47 findings; amending s. 766.315, F.S.; revising
48 membership of the directors of the association;
49 providing an effective date.
50
51 Be It Enacted by the Legislature of the State of Florida:
52
53 Section 1. Paragraph (a) of subsection (7) of section
54 409.910, Florida Statutes, is amended to read:
55 409.910 Responsibility for payments on behalf of Medicaid
56 eligible persons when other parties are liable.—
57 (7) The agency shall recover the full amount of all medical
58 assistance provided by Medicaid on behalf of the recipient to
59 the full extent of third-party benefits.
60 (a) Recovery of such benefits shall be collected directly
61 from:
62 1. Any third party;
63 2. The recipient or legal representative, if he or she has
64 received third-party benefits;
65 3. The provider of a recipient’s medical services if third
66 party benefits have been recovered by the provider;
67 notwithstanding any provision of this section, to the contrary,
68 however, no provider shall be required to refund or pay to the
69 agency any amount in excess of the actual third-party benefits
70 received by the provider from a third-party payor for medical
71 services provided to the recipient; or
72 4. Any person who has received the third-party benefits; or
73 5. The Florida Birth-Related Neurological Injury
74 Compensation Association for plan participant costs incurred
75 under s. 766.31.
76
77 The provisions of this subsection do not apply to any proceeds
78 received by the state, or any agency thereof, pursuant to a
79 final order, judgment, or settlement agreement, in any matter in
80 which the state asserts claims brought on its own behalf, and
81 not as a subrogee of a recipient, or under other theories of
82 liability. The provisions of this subsection do not apply to any
83 proceeds received by the state, or an agency thereof, pursuant
84 to a final order, judgment, or settlement agreement, in any
85 matter in which the state asserted both claims as a subrogee and
86 additional claims, except as to those sums specifically
87 identified in the final order, judgment, or settlement agreement
88 as reimbursements to the recipient as expenditures for the named
89 recipient on the subrogation claim.
90 Section 2. Section 766.302, Florida Statutes, is reordered
91 and amended to read:
92 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
93 766.301-766.316, the term:
94 (1) “Actuarially sound” means that the total plan assets
95 available to fund future liabilities are equal to or greater
96 than 90 percent of the present value of total estimated
97 liabilities excluding any risk margin.
98 (2)(4) “Administrative law judge” means an administrative
99 law judge appointed by the division.
100 (3)(1) “Association” means the Florida Birth-Related
101 Neurological Injury Compensation Association established in s.
102 766.315 to administer the Florida Birth-Related Neurological
103 Injury Compensation Plan and the plan of operation established
104 in s. 766.314.
105 (4)(2) “Birth-related neurological injury” means injury to
106 the brain or spinal cord of a live infant weighing at least
107 2,500 grams for a single gestation or, in the case of a multiple
108 gestation, a live infant weighing at least 2,000 grams at birth
109 caused by oxygen deprivation or mechanical injury occurring in
110 the course of labor, delivery, or resuscitation in the immediate
111 postdelivery period in a hospital, which renders the infant
112 permanently and substantially mentally and physically impaired.
113 This definition shall apply to live births only and shall not
114 include disability or death caused by genetic or congenital
115 abnormality.
116 (5)(3) “Claimant” means any person who files a claim
117 pursuant to s. 766.305 for compensation for a birth-related
118 neurological injury to an infant. Such a claim may be filed by
119 any legal representative on behalf of an injured infant; and, in
120 the case of a deceased infant, the claim may be filed by an
121 administrator, personal representative, or other legal
122 representative thereof.
123 (6)(5) “Division” means the Division of Administrative
124 Hearings of the Department of Management Services.
125 (7)(9) “Family member” means a father, mother, or legal
126 guardian.
127 (8)(10) “Family residential or custodial care” means care
128 normally rendered by trained professional attendants which is
129 beyond the scope of child care duties, but which is provided by
130 family members. Family members who provide nonprofessional
131 residential or custodial care may not be compensated under this
132 act for care that falls within the scope of child care duties
133 and other services normally and gratuitously provided by family
134 members. Family residential or custodial care shall be performed
135 only at the direction and control of a physician when such care
136 is medically necessary. Reasonable charges for expenses for
137 family residential or custodial care provided by a family member
138 shall be determined as follows:
139 (a) If the family member is not employed, the per-hour
140 value equals the federal minimum hourly wage.
141 (b) If the family member is employed and elects to leave
142 that employment to provide such care, the per-hour value of that
143 care shall equal the rates established by Medicaid for private
144 duty services provided by a home health aide. A family member or
145 a combination of family members providing care in accordance
146 with this definition may not be compensated for more than a
147 total of 10 hours per day. Family care is in lieu of
148 professional residential or custodial care, and no professional
149 residential or custodial care may be awarded for the period of
150 time during the day that family care is being provided.
151 (9)(6) “Hospital” means any hospital licensed in Florida.
152 (10) “Participant” means the person who suffered a birth
153 related neurological injury as an infant and who accepted
154 compensation under the plan by final order entered by an
155 administrative law judge pursuant to s. 766.309.
156 (11)(7) “Participating physician” means a physician
157 licensed in Florida to practice medicine who practices
158 obstetrics or performs obstetrical services either full time or
159 part time and who had paid or was exempted from payment at the
160 time of the injury the assessment required for participation in
161 the birth-related neurological injury compensation plan for the
162 year in which the injury occurred. Such term shall not apply to
163 any physician who practices medicine as an officer, employee, or
164 agent of the Federal Government.
165 (12)(8) “Plan” means the Florida Birth-Related Neurological
166 Injury Compensation Plan established under s. 766.303.
167 (13) “Risk margin” means an additional, explicit allowance
168 above the best-estimate reserve to reflect uncertainty in future
169 claim payments, including variation in claimant life expectancy
170 and the number and cost of pending or unreported claims. The
171 risk margin is not included in the reserve amount used to
172 calculate the funding ratio.
173 Section 3. Section 766.303, Florida Statutes, is amended to
174 read:
175 766.303 Florida Birth-Related Neurological Injury
176 Compensation Plan; exclusiveness of remedy.—
177 (1) There is established the Florida Birth-Related
178 Neurological Injury Compensation Plan for the purpose of
179 providing compensation, irrespective of fault, for birth-related
180 neurological injuries injury claims. Such plan shall apply to
181 births occurring on or after January 1, 1989, and shall be
182 administered by the Florida Birth-Related Neurological Injury
183 Compensation Association.
184 (2) The rights and remedies granted by this plan on account
185 of a birth-related neurological injury shall exclude all other
186 rights and remedies of such infant, her or his personal
187 representative, family members parents, dependents, and next of
188 kin, at common law or otherwise, against any person or entity
189 directly involved with the labor, delivery, or immediate
190 postdelivery resuscitation during which such injury occurs,
191 arising out of or related to a medical negligence claim with
192 respect to such injury; except that a civil action shall not be
193 foreclosed where there is clear and convincing evidence of bad
194 faith or malicious purpose or willful and wanton disregard of
195 human rights, safety, or property, provided that such suit is
196 filed prior to and in lieu of payment of an award under ss.
197 766.301-766.316. Such suit shall be filed before the award of
198 the division becomes conclusive and binding as provided for in
199 s. 766.311.
200 (3) Sovereign immunity is hereby waived on behalf of the
201 Florida Birth-Related Neurological Injury Compensation
202 Association solely to the extent necessary to assure payment of
203 compensation as provided in s. 766.31.
204 (4) The association shall administer the plan in a manner
205 that promotes and protects the health and best interests of
206 participants children with birth-related neurological injuries.
207 Section 4. Subsections (1) and (3) of section 766.305,
208 Florida Statutes, are amended to read:
209 766.305 Filing of claims and responses; medical
210 disciplinary review.—
211 (1) All claims filed for compensation under the plan shall
212 commence by the claimant filing with the division a petition
213 that seeking compensation. Such petition shall include the
214 following information:
215 (a) The name and address of the legal representative and
216 the basis for her or his representation of the injured infant.
217 (b) The name and address of the injured infant.
218 (c) The name and address of any physician providing
219 obstetrical services who was present at the birth and the name
220 and address of the hospital at which the birth occurred.
221 (d) A description of the disability for which the claim is
222 made.
223 (e) The time and place the injury occurred.
224 (f) A brief statement of the facts and circumstances
225 surrounding the injury and giving rise to the claim.
226 (3) The claimant shall furnish to the Florida Birth-Related
227 Neurological Injury Compensation association the following
228 information, which must be filed with the association within 10
229 days after the filing of the petition as set forth in subsection
230 (1):
231 (a) All available relevant medical records relating to the
232 birth-related neurological injury and a list identifying any
233 unavailable records known to the claimant and the reasons for
234 the records’ unavailability.
235 (b) Appropriate assessments, evaluations, and prognoses and
236 such other records and documents as are reasonably necessary for
237 the determination of the amount of compensation to be paid to,
238 or on behalf of, the injured infant on account of the birth
239 related neurological injury.
240 (c) Documentation of expenses and services incurred to date
241 which identifies any payment made for such expenses and services
242 and the payor.
243 (d) Documentation of any applicable private or governmental
244 source of services or reimbursement relative to the impairments.
245
246 The information required by paragraphs (a)-(d) shall remain
247 confidential and exempt under the provisions of s.
248 766.315(5)(b).
249 Section 5. Paragraph (a) of subsection (1) of section
250 766.309, Florida Statutes, is amended to read:
251 766.309 Determination of claims; presumption; findings of
252 administrative law judge binding on participants.—
253 (1) The administrative law judge shall make the following
254 determinations based upon all available evidence:
255 (a) Whether the injury claimed is a birth-related
256 neurological injury. If the claimant has demonstrated, to the
257 satisfaction of the administrative law judge, that the infant
258 has sustained a brain or spinal cord injury caused by oxygen
259 deprivation or mechanical injury and that the infant was thereby
260 rendered permanently and substantially mentally and physically
261 impaired, a rebuttable presumption shall arise that the injury
262 is a birth-related neurological injury as defined in s. 766.302
263 s. 766.302(2).
264 Section 6. Section 766.31, Florida Statutes, is amended to
265 read:
266 766.31 Administrative law judge awards for birth-related
267 neurological injuries; notice of award.—
268 (1) Upon determining that an infant has sustained a birth
269 related neurological injury and that obstetrical services were
270 delivered by a participating physician at the birth, the
271 administrative law judge shall make an award providing
272 compensation for the following items relative to such injury:
273 (a) Actual expenses incurred since date of birth for
274 medically necessary and reasonable:
275 1. Medical and hospital care and services;,
276 2. Habilitative services; and training,
277 3. Dental services;
278 4. Family residential or custodial care;,
279 5. Professional residential care;, and
280 6. Professional custodial care; and service,
281 7. for medically necessary Drugs;,
282 8. Special equipment;, and facilities, and
283 9. for Related travel.
284 (b) At a minimum, compensation must be provided for the
285 following actual expenses:
286 1. Psychotherapeutic services for A total annual benefit of
287 up to $10,000 for immediate family members and other relatives
288 who have resided reside with the participant, which are infant
289 for psychotherapeutic services obtained from a psychiatrist
290 licensed under chapter 458 or chapter 459, a provider providers
291 licensed under chapter 490 or chapter 491, or a psychiatrist or
292 provider who has equivalent licensure by another jurisdiction.
293 This benefit for such family members and relatives shall be up
294 to a total of $10,000 annually during the participant’s lifetime
295 and up to a total of $20,000 subsequent to the participant’s
296 death.
297 2. For the life of the participant child, providing family
298 members parents or legal guardians with a reliable method of
299 transporting transportation for the care of the participant and
300 child or reimbursing the cost of upgrading an existing vehicle
301 to accommodate the participant’s wheelchair and medically
302 necessary equipment child’s needs when it becomes medically
303 necessary for wheelchair transportation. The mode of
304 transportation must take into account the special accommodations
305 required for the specific child. The plan may not limit such
306 transportation assistance based on the participant’s child’s age
307 or weight. The plan must replace any vehicle vans purchased by
308 the plan every 7 years or 150,000 miles, whichever comes first.
309 3. Housing assistance of up to $100,000 for the life of the
310 participant child, including, but not limited to, a down payment
311 on a new home, moving expenses, and home construction and
312 modification costs.
313 4. Legal costs associated with establishing and maintaining
314 guardianship for a participant.
315 (c) The costs of major medical health coverage for the
316 participant obtained pursuant to subsection (3), including, but
317 not limited to, the premium and out-of-pocket costs. For
318 participants enrolled in Florida Medicaid, the plan must
319 reimburse fee-for-service paid claims and capitation payments,
320 as applicable, for services to persons enrolled in the Medicaid
321 program for compensation pursuant to this section and for the
322 administrative and support costs associated with the provided
323 medical assistance. Such funds shall be credited to the Agency
324 for Health Care Administration Medical Care Trust Fund.
325 (d)(b) However, the following expenses are not subject to
326 compensation:
327 1. Expenses for items or services that the participant
328 infant has received, or is entitled to receive, under the laws
329 of any state or the Federal Government, except to the extent
330 such exclusion may be prohibited by federal law.
331 2. Expenses for items or services that the participant
332 infant has received, or is contractually entitled to receive,
333 from any prepaid health plan, health maintenance organization,
334 or other private insuring entity.
335 3. Expenses for which the participant infant has received
336 reimbursement, or for which the participant infant is entitled
337 to receive reimbursement, under the laws of any state or the
338 Federal Government, except to the extent such exclusion may be
339 prohibited by federal law.
340 4. Expenses for which the participant infant has received
341 reimbursement, or for which the participant infant is
342 contractually entitled to receive reimbursement, pursuant to the
343 provisions of any health or sickness insurance policy or other
344 private insurance program.
345 5. Expenses for professional custodial care provided by a
346 family member while:
347 a. Care and supervision of the participant is
348 simultaneously being provided by another person or entity; or
349 b. The family member receives compensation from another
350 source for work performed during the same time for which
351 compensation is sought from the association.
352 (e)(c) Expenses included under paragraphs paragraph (a) and
353 (b) are limited to reasonable charges prevailing in the same
354 community for similar treatment of injured persons when such
355 treatment is paid for by the injured person.
356 (f)1. A family member The parents or legal guardians
357 receiving benefits under the plan may file a petition with the
358 division of Administrative Hearings to dispute the amount of
359 actual expenses reimbursed or a denial of reimbursement.
360 2. In the case of an alleged overpayment of an expense
361 reimbursement by the association to a family member, if the
362 family member does not agree that an overpayment has occurred,
363 the association may file a petition for division review of the
364 overpayment for a determination of the amount, if any, to be
365 recouped by the association.
366 (g)1.(d)1.a. Periodic payments of an award to the family
367 members parents or legal guardians of the participant infant
368 found to have sustained a birth-related neurological injury,
369 which award may not exceed $100,000. However, at the discretion
370 of the administrative law judge, such award may be made in a
371 lump sum. Beginning on January 1, 2021, the award may not exceed
372 $250,000, and each January 1 thereafter, the maximum award
373 authorized under this paragraph shall increase by 3 percent.
374 b. Parents or legal guardians who received an award
375 pursuant to this section before January 1, 2021, must receive a
376 retroactive payment in an amount sufficient to bring the total
377 award paid to the parents or legal guardians pursuant to sub
378 subparagraph a. to $250,000. This additional payment may be made
379 in a lump sum or in periodic payments as designated by the
380 parents or legal guardians and must be paid by July 1, 2021.
381 2.a. Death benefit for the participant infant in an amount
382 of $50,000.
383 b. Parents or legal guardians who received an award
384 pursuant to this section, and whose child died since the
385 inception of the program, must receive a retroactive payment in
386 an amount sufficient to bring the total award paid to the
387 parents or legal guardians pursuant to sub-subparagraph a. to
388 $50,000. This additional payment may be made in a lump sum or in
389 periodic payments as designated by the parents or legal
390 guardians and must be paid by July 1, 2021.
391 (h)(e) Reasonable expenses incurred in connection with the
392 filing of a claim under ss. 766.301-766.316, including
393 reasonable attorney attorney’s fees, which shall be subject to
394 the approval and award of the administrative law judge. In
395 determining an award for attorney attorney’s fees, the
396 administrative law judge shall consider the following factors:
397 1. The time and labor required, the novelty and difficulty
398 of the questions involved, and the skill requisite to perform
399 the legal services properly.
400 2. The fee customarily charged in the locality for similar
401 legal services.
402 3. The time limitations imposed by the claimant or the
403 circumstances.
404 4. The nature and length of the professional relationship
405 with the claimant.
406 5. The experience, reputation, and ability of the lawyer or
407 lawyers performing services.
408 6. The contingency or certainty of a fee.
409
410 Should there be a final determination of compensability, and the
411 claimants accept an award under this section, the claimants are
412 not liable for any expenses, including attorney fees, incurred
413 in connection with the filing of a claim under ss. 766.301
414 766.316 other than those expenses awarded under this section.
415 (2) The award shall require the immediate payment of
416 expenses previously incurred and shall require that future
417 expenses be paid as incurred.
418 (3) A family member must continuously maintain
419 comprehensive major medical health coverage for the participant.
420 (a) If the participant does not have such coverage at the
421 time of entry of a final order by an administrative law judge
422 approving a claim for compensation, the family member must
423 obtain coverage within 60 days after entry of such order or
424 apply for Medicaid coverage within 30 days after entry of such
425 order.
426 (b) If the participant is determined to be ineligible for
427 Medicaid, the family member must obtain other coverage within 60
428 days after receiving the Medicaid application denial.
429 (c) A family member of an individual who is a participant
430 on June 30, 2026, must obtain the required coverage for the
431 participant by January 1, 2027.
432 (4)(3) A copy of the award shall be sent immediately by
433 registered or certified mail to each person served with a copy
434 of the petition under s. 766.305(2).
435 Section 7. Section 766.314, Florida Statutes, is amended to
436 read:
437 766.314 Assessments; plan of operation.—
438 (1) The assessments established pursuant to this section
439 shall be used to finance the Florida Birth-Related Neurological
440 Injury Compensation Plan.
441 (2) The assessments and appropriations dedicated to the
442 plan shall be administered by the Florida Birth-Related
443 Neurological Injury Compensation Association established in s.
444 766.315, in accordance with the following requirements:
445 (a) On or before July 1, 1988, The directors of the
446 association shall maintain submit to the Department of Insurance
447 for review a plan of operation which shall provide for the
448 efficient administration of the plan and for prompt processing
449 of claims against and awards made on behalf of the plan. The
450 plan of operation shall include provision for:
451 1. Establishment of necessary facilities;
452 2. Management of the funds collected on behalf of the plan;
453 3. Processing of claims against the plan;
454 4. Assessment of the persons and entities listed in
455 subsections (4) and (7) (5) to pay awards and expenses, which
456 assessments shall be on an actuarially sound basis subject to
457 the limits set forth in subsections (4) and (5);
458 5. A fraud and overpayment prevention and detection
459 program; and
460 6.5. Any other matters necessary for the efficient
461 operation of the birth-related neurological injury compensation
462 plan.
463 (b) Amendments to the plan of operation may be made by the
464 directors of the plan, subject to the approval of the office of
465 Insurance Regulation of the Financial Services Commission.
466 (3) All assessments shall be deposited with the Florida
467 Birth-Related Neurological Injury Compensation association. The
468 funds collected by the association and any income therefrom
469 shall be disbursed only for the payment of awards under ss.
470 766.301-766.316 and for the payment of the reasonable expenses
471 of administering the plan.
472 (4) The following persons and entities shall pay into the
473 association assessments as follows an initial assessment in
474 accordance with the plan of operation:
475 (a)1. On or before October 1, 1988, Each hospital licensed
476 under chapter 395 shall pay an initial assessment of $50 per
477 infant delivered in that the hospital during the prior calendar
478 year, as reported to the Agency for Health Care Administration;
479 provided, however, that a hospital owned or operated by the
480 state or a county, special taxing district, or other political
481 subdivision of the state shall not be required to pay the
482 initial assessment or any assessment required by this subsection
483 or subsection (7) (5). The term “infant delivered” includes live
484 births and not stillbirths, but the term does not include
485 infants delivered by employees or agents of the board of
486 trustees of a state university, those born in a teaching
487 hospital as defined in s. 408.07, or those born in a teaching
488 hospital as defined in s. 395.806 that have been deemed by the
489 association as being exempt from assessments since fiscal year
490 1997 to fiscal year 2001. The initial assessment and any
491 assessment imposed pursuant to subsection (7) (5) may not
492 include any infant born to a charity patient (as defined by rule
493 of the Agency for Health Care Administration) or born to a
494 patient for whom the hospital receives Medicaid reimbursement,
495 if the sum of the annual charges for charity patients plus the
496 annual Medicaid contractuals of the hospital exceeds 10 percent
497 of the total annual gross operating revenues of the hospital.
498 The hospital is responsible for documenting, to the satisfaction
499 of the association, the exclusion of any birth from the
500 computation of the assessment. Upon demonstration of financial
501 need by a hospital, the association may provide for installment
502 payments of assessments.
503 2. Assessments shall be due, and hospitals shall pay, all
504 assessments required under this section by December 31 of the
505 calendar year immediately subsequent to the birth year.
506 (b)1.a. On or before October 15, 1988, All physicians
507 licensed pursuant to chapter 458 or chapter 459 as of October 1,
508 1988, other than participating physicians, shall be assessed an
509 annual initial assessment of $250.,
510 b. Payment for all assessments required under this
511 paragraph is due on or before December 31 of each year which
512 must be paid no later than December 1, 1988.
513 2. Any such physician who becomes licensed after September
514 30, 1988, and before January 1, 1989, shall pay into the
515 association an initial assessment of $250 upon licensure.
516 3. Any such physician who becomes licensed on or after
517 January 1, 1989, shall pay an initial assessment equal to the
518 most recent assessment made pursuant to this paragraph,
519 paragraph (5)(a), or paragraph (7)(b).
520 2.4. However, if the physician is a physician specified in
521 this subparagraph, the assessment is not applicable:
522 a. A resident physician, assistant resident physician, or
523 intern in an approved postgraduate training program, as defined
524 by the Board of Medicine or the Board of Osteopathic Medicine by
525 rule;
526 b. A retired physician who has withdrawn from the practice
527 of medicine but who maintains an active license as evidenced by
528 an affidavit filed with the Department of Health. Prior to
529 reentering the practice of medicine in this state, a retired
530 physician as herein defined must notify the Board of Medicine or
531 the Board of Osteopathic Medicine and pay the appropriate
532 assessments pursuant to this section;
533 c. A physician who holds a limited license pursuant to s.
534 458.317 and who is not being compensated for medical services;
535 d. A physician who is employed full time by the United
536 States Department of Veterans Affairs and whose practice is
537 confined to United States Department of Veterans Affairs
538 hospitals; or
539 e. A physician who is a member of the Armed Forces of the
540 United States and who meets the requirements of s. 456.024.
541 f. A physician who is employed full time by the State of
542 Florida and whose practice is confined to state-owned
543 correctional institutions, a county health department, or state
544 owned mental health or developmental services facilities, or who
545 is employed full time by the Department of Health.
546 (c)1. On or before December 1, 1988, Each physician
547 licensed pursuant to chapter 458 or chapter 459 who wishes to
548 participate in the Florida Birth-Related Neurological Injury
549 Compensation Plan and who otherwise qualifies as a participating
550 physician under ss. 766.301-766.316 shall pay an annual initial
551 assessment of $5,000 and any assessment required under paragraph
552 (7)(d), if assessed. However, if the physician is either a
553 resident physician, assistant resident physician, or intern in
554 an approved postgraduate training program, as defined by the
555 Board of Medicine or the Board of Osteopathic Medicine by rule,
556 and is supervised in accordance with program requirements
557 established by the Accreditation Council for Graduate Medical
558 Education or the American Osteopathic Association by a physician
559 who is participating in the plan, such resident physician,
560 assistant resident physician, or intern is deemed to be a
561 participating physician without the payment of the assessment.
562 Participating physicians also include any employee of the board
563 of trustees of a state university who has paid the assessment
564 required by this paragraph and, if assessed, paragraph (7)(d)
565 (5)(a), and any certified nurse midwife supervised by such
566 employee. Participating physicians include any certified nurse
567 midwife who has paid 50 percent of the physician assessment
568 required by this paragraph and, if assessed, paragraph (7)(d),
569 (5)(a) and who is supervised by a participating physician who
570 has paid the assessment required by this paragraph and, if
571 assessed, paragraph (7)(d) (5)(a). Supervision for nurse
572 midwives shall require that the supervising physician will be
573 easily available and have a prearranged plan of treatment for
574 specified patient problems which the supervised certified nurse
575 midwife may carry out in the absence of any complicating
576 features. Any physician who elects to participate in such plan
577 on or after January 1, 1989, who was not a participating
578 physician at the time of such election to participate and who
579 otherwise qualifies as a participating physician under ss.
580 766.301-766.316 shall pay an additional initial assessment equal
581 to the most recent assessment made pursuant to this paragraph,
582 paragraph (5)(a), or paragraph (7)(b).
583 2. Payment of assessments required by this paragraph is due
584 on or before December 31 of each year for qualification as a
585 participating physician during the next calendar year. If
586 payment of the assessments is received by the association on or
587 before January 31 of any calendar year, the physician shall
588 qualify as a participating physician for that entire calendar
589 year. If the payment is received after January 31, the physician
590 shall qualify as a participating physician for that calendar
591 year only from the date the payment was received by the
592 association.
593 (d) Any hospital located in a county with a population in
594 excess of 1.1 million as of January 1, 2003, as determined by
595 the Agency for Health Care Administration under the Health Care
596 Responsibility Act, may elect to pay the assessments required by
597 paragraph (c) fee for the participating physician and the
598 certified nurse midwife if the hospital first determines that
599 the primary motivating purpose for making such payment is to
600 ensure coverage for the hospital’s patients under the provisions
601 of ss. 766.301-766.316; however, no hospital may restrict any
602 participating physician or nurse midwife, directly or
603 indirectly, from being on the staff of hospitals other than the
604 staff of the hospital making the payment. Each hospital shall
605 file with the association an affidavit setting forth
606 specifically the reasons why the hospital elected to make the
607 payment on behalf of each participating physician and certified
608 nurse midwife. The payments authorized under this paragraph
609 shall be in addition to the assessment set forth in paragraph
610 (5)(a).
611 (5)(a) Beginning January 1, 1990, the persons and entities
612 listed in paragraphs (4)(b) and (c), except those persons or
613 entities who are specifically excluded from said provisions, as
614 of the date determined in accordance with the plan of operation,
615 taking into account persons licensed subsequent to the payment
616 of the initial assessment, shall pay an annual assessment in the
617 amount equal to the initial assessments provided in paragraphs
618 (4)(b) and (c). If payment of the annual assessment by a
619 physician is received by the association by January 31 of any
620 calendar year, the physician shall qualify as a participating
621 physician for that entire calendar year. If the payment is
622 received after January 31 of any calendar year, the physician
623 shall qualify as a participating physician for that calendar
624 year only from the date the payment was received by the
625 association. On January 1, 1991, and on each January 1
626 thereafter, the association shall determine the amount of
627 additional assessments necessary pursuant to subsection (7), in
628 the manner required by the plan of operation, subject to any
629 increase determined to be necessary by the Office of Insurance
630 Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on
631 each July 1 thereafter, the persons and entities listed in
632 paragraphs (4)(b) and (c), except those persons or entities who
633 are specifically excluded from said provisions, shall pay the
634 additional assessments which were determined on January 1.
635 Beginning January 1, 1990, the entities listed in paragraph
636 (4)(a), including those licensed on or after October 1, 1988,
637 shall pay an annual assessment of $50 per infant delivered
638 during the prior calendar year. The additional assessments which
639 were determined on January 1, 1991, pursuant to the provisions
640 of subsection (7) shall not be due and payable by the entities
641 listed in paragraph (4)(a) until July 1.
642 (b) If the assessments collected pursuant to subsection (4)
643 and the appropriation of funds provided by s. 76, chapter 88-1,
644 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
645 Florida, to the plan from the Insurance Regulatory Trust Fund
646 are insufficient to maintain the plan on an actuarially sound
647 basis, there is hereby appropriated for transfer to the
648 association from the Insurance Regulatory Trust Fund an
649 additional amount of up to $20 million.
650 (c)1. Taking into account the assessments collected
651 pursuant to subsection (4) and appropriations from the Insurance
652 Regulatory Trust Fund, if required to maintain the plan on an
653 actuarially sound basis, the Office of Insurance Regulation
654 shall require each entity licensed to issue casualty insurance
655 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
656 association an annual assessment in an amount determined by the
657 office pursuant to paragraph (7)(a), in the manner required by
658 the plan of operation.
659 2. All annual assessments shall be made on the basis of net
660 direct premiums written for the business activity which forms
661 the basis for each such entity’s inclusion as a funding source
662 for the plan in the state during the prior year ending December
663 31, as reported to the Office of Insurance Regulation, and shall
664 be in the proportion that the net direct premiums written by
665 each carrier on account of the business activity forming the
666 basis for its inclusion in the plan bears to the aggregate net
667 direct premiums for all such business activity written in this
668 state by all such entities.
669 3. No entity listed in this paragraph shall be individually
670 liable for an annual assessment in excess of 0.25 percent of
671 that entity’s net direct premiums written.
672 4. Casualty insurance carriers shall be entitled to recover
673 their initial and annual assessments through a surcharge on
674 future policies, a rate increase applicable prospectively, or a
675 combination of the two.
676 (5)(a)(6)(a) The association shall make all assessments
677 required by this section, except initial assessments of
678 physicians newly licensed by the Department of Health, which
679 assessments will be made by the Department of Health, and except
680 assessments of casualty insurers pursuant to paragraph (7)(c)
681 subparagraph (5)(c)1., which assessments will be made by the
682 office of Insurance Regulation. The Department of Health shall
683 provide the association, in an electronic format, with a monthly
684 report of the names and license numbers of all physicians
685 licensed under chapter 458 or chapter 459.
686 (b)1. The association may enforce collection of assessments
687 required to be paid pursuant to ss. 766.301-766.316 by suit
688 filed in county court, or in circuit court if the amount due
689 could exceed the jurisdictional limits of county court. The
690 association is entitled to an award of attorney fees, costs, and
691 interest upon the entry of a judgment against a physician for
692 failure to pay such assessment, with such interest accruing
693 until paid. Notwithstanding chapters 47 and 48, the association
694 may file such suit in either Leon County or the county of the
695 residence of the defendant. The association shall notify the
696 Department of Health and the applicable board of any unpaid
697 final judgment against a physician within 7 days after the entry
698 of final judgment.
699 2. The Department of Health, upon notification by the
700 association that an assessment has not been paid and that there
701 is an unsatisfied judgment against a physician, shall refuse to
702 renew any license issued to such physician under chapter 458 or
703 chapter 459 until the association notifies the Department of
704 Health that the judgment is satisfied in full.
705 (c) The Agency for Health Care Administration shall, upon
706 notification by the association that an assessment has not been
707 timely paid, enforce collection of such assessments required to
708 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
709 a hospital to pay such assessment is grounds for disciplinary
710 action pursuant to s. 395.1065 notwithstanding any law to the
711 contrary.
712 (7)(a) The office of Insurance Regulation shall undertake
713 an actuarial investigation of the requirements of the plan based
714 on the plan’s experience in the first year of operation and any
715 additional relevant information, including without limitation
716 the assets and liabilities of the plan. Pursuant to such
717 investigation, the Office of Insurance Regulation shall
718 establish the rate of contribution of the entities listed in
719 paragraph (5)(c) for the tax year beginning January 1, 1990.
720 Following the initial valuation, the Office of Insurance
721 Regulation shall cause an actuarial valuation to be made of the
722 assets and liabilities of the plan no less frequently than
723 biennially. Pursuant to the results of such valuations, the
724 Office of Insurance Regulation shall prepare a statement as to
725 the contribution rate applicable to the entities listed in
726 paragraph (5)(c). However, at no time shall the rate be greater
727 than 0.25 percent of net direct premiums written.
728 (b) If the office of Insurance Regulation finds that the
729 plan cannot be maintained on an actuarially sound basis based on
730 the assessments and appropriations listed in subsections (4) and
731 (5), the office shall increase the assessments specified in
732 subsection (4) on a proportional basis as needed.
733 (8) The association shall report to the Legislature its
734 determination as to the annual cost of maintaining the fund on
735 an actuarially sound basis. In making its determination, the
736 association shall consider the recommendations of all hospitals,
737 physicians, casualty insurers, attorneys, consumers, and any
738 associations representing any such person or entity.
739 Notwithstanding the provisions of s. 395.3025, all hospitals,
740 casualty insurers, departments, boards, commissions, and
741 legislative committees shall provide the association with all
742 relevant records and information upon request to assist the
743 association in making its determination. All hospitals shall,
744 upon request by the association, provide the association with
745 information from their records regarding any live birth. Such
746 information shall not include the name of any physician, the
747 name of any hospital employee or agent, the name of the patient,
748 or any other information which will identify the infant involved
749 in the birth. Such information thereby obtained shall be
750 utilized solely for the purpose of assisting the association and
751 shall not subject the hospital to any civil or criminal
752 liability for the release thereof. Such information shall
753 otherwise be confidential and exempt from the provisions of s.
754 119.07(1) and s. 24(a), Art. I of the State Constitution.
755 (6)(a)(9)(a) Within 60 days after a claim is filed, the
756 association shall estimate the present value of the total cost
757 of the claim, including the estimated amount to be paid to the
758 claimant, the claimant’s attorney, the attorney attorney’s fees
759 of the association incident to the claim, and any other expenses
760 that are reasonably anticipated to be incurred by the
761 association in connection with the adjudication and payment of
762 the claim. For purposes of this estimate, the association should
763 include the maximum benefits for noneconomic damages.
764 (b) The association shall revise these estimates quarterly
765 based upon the actual costs incurred and any additional
766 information that becomes available to the association since the
767 last review of this estimate. The estimate shall be reduced by
768 any amounts paid by the association that were included in the
769 current estimate. The association shall submit such quarterly
770 estimates to the office within 10 business days after
771 completion.
772 (c) After the revisions of estimates required under
773 paragraph (b), each quarter, the association shall calculate
774 whether the plan is actuarially sound. If the association’s
775 calculation indicates that the plan is not actuarially sound,
776 the association must immediately notify the office as described
777 in subsection (7). The office shall review the association’s
778 calculations and, within 60 days after the association’s
779 notification, determine whether to initiate an actuarial
780 valuation as described in subsection (7), and notify the
781 association of its determination. At a minimum, the office shall
782 make its determination based on the degree to which the
783 association’s calculations indicate that the plan is not
784 actuarially sound, the direction and consistency of recent
785 trends in the calculations of the plan’s actuarial soundness,
786 and the length of time since the most recent actuarial valuation
787 conducted by the office and until the next biennial valuation.
788 The office shall initiate such actuarial valuation within 30
789 days after its determination that there is a need for a
790 valuation.
791 1. If the total of all current estimates equals or exceeds
792 100 percent of the funds on hand and the funds that will become
793 available to the association within the next 12 months from all
794 sources described in subsection (4) and paragraph (5)(a), the
795 association may not accept any new claims without express
796 authority from the Legislature. This section does not preclude
797 the association from accepting any claim if the injury occurred
798 18 months or more before the effective date of this suspension.
799 Within 30 days after the effective date of this suspension, the
800 association shall notify the Governor, the Speaker of the House
801 of Representatives, the President of the Senate, the Office of
802 Insurance Regulation, the Agency for Health Care Administration,
803 and the Department of Health of this suspension.
804 2. Notwithstanding this paragraph, the association is
805 authorized to accept new claims during the 2025-2026 fiscal year
806 if the total of all current estimates exceeds the limits
807 described in subparagraph 1. during that fiscal year. This
808 subparagraph expires July 1, 2026.
809 (d) If any person is precluded from asserting a claim
810 against the association because of paragraph (c), the plan shall
811 not constitute the exclusive remedy for such person, his or her
812 personal representative, parents, dependents, or next of kin.
813 (7)(a) The office shall cause an actuarial valuation to be
814 made of the assets and liabilities of the plan at a minimum
815 biennially on or before December 31 of even-numbered years and
816 as provided in subsection (6). Such valuation must be based on
817 the assets and liabilities of the plan for the calendar year
818 before the year in which the actuarial valuation is due. The
819 office shall also determine whether the plan has adequate
820 estimated cash flow for the following fiscal year, whether,
821 based on the actuarial valuation, the plan is actuarially sound,
822 and if not, whether the plan is likely to return to actuarial
823 soundness before the next biennial review.
824 (b) If the office determines that the plan lacks adequate
825 cash flow for the following fiscal year pursuant to the review
826 in paragraph (a), the office must authorize a transfer of up to
827 up to $50 million from the Insurance Regulatory Trust Fund to
828 the association within 30 calendar days.
829 (c) If the office finds that the plan is not likely to
830 return to actuarial soundness before the next biennial review
831 pursuant to the review in paragraph (a), the office must, within
832 60 calendar days after this finding, order one or more of the
833 following actions:
834 1. Require each entity licensed to issue casualty insurance
835 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
836 association an annual assessment that is calculated to generate
837 a total amount no greater than the amount required to achieve
838 actuarial soundness of the plan within 5 years after the date of
839 the order, subject to the limitations of this subparagraph.
840 a. These assessments shall be made on the basis of net
841 direct premiums written for the business activity which forms
842 the basis for each such entity’s inclusion as a funding source
843 for the plan in the state during the prior year ending December
844 31, as reported to the office, and shall be in the proportion
845 that the net direct premiums written by each carrier on account
846 of the business activity forming the basis for its inclusion in
847 the plan bears to the aggregate net direct premiums for all such
848 business activity written in this state by all such entities.
849 b. No entity shall be individually liable for an annual
850 assessment in excess of 0.25 percent of that entity’s net direct
851 premiums written.
852 c. Casualty insurance carriers shall be entitled to recover
853 their assessments through a surcharge on future policies, a rate
854 increase applicable prospectively, or a combination of the two.
855 d. An assessment under this paragraph must not extend 5
856 years after the date of the order.
857 2. If actuarial soundness cannot be achieved after using
858 the remedy in subparagraph 1., increase the assessments
859 specified in subsection (4) on a proportional basis that is
860 calculated to generate a total amount no greater than the amount
861 required to maintain the plan on an actuarially sound basis.
862 (d) If the office finds that the plan is not actuarially
863 sound pursuant to the review in paragraph (a), the plan must
864 provide the office with quarterly reports projecting the plan’s
865 financial health and, if assessments were ordered by the office
866 under this paragraph, projected revenues for such assessments.
867 (e) If the association finds that the plan is not
868 actuarially sound and the remedies provided under subsection (7)
869 are insufficient to reestablish the actuarial soundness of the
870 plan, the association must, within 60 days after such finding,
871 notify the Governor, the President of the Senate, the Speaker of
872 the House of Representatives, and the office. If the plan issues
873 the notice, the association may not accept any new claims
874 without express authority from the Legislature. This paragraph
875 does not preclude the association from accepting any claim if
876 the injury occurred 18 months or more before the effective date
877 of this suspension.
878 Section 8. Subsection (1) of section 766.315, Florida
879 Statutes, is amended to read:
880 766.315 Florida Birth-Related Neurological Injury
881 Compensation Association; board of directors; notice of
882 meetings; report.—
883 (1)(a) The Florida Birth-Related Neurological Injury
884 Compensation Plan shall be governed by a board of seven
885 directors which shall be known as the Florida Birth-Related
886 Neurological Injury Compensation Association. The association is
887 not a state agency, board, or commission. Notwithstanding the
888 provision of s. 15.03, the association is authorized to use the
889 state seal.
890 (b) The directors shall be appointed for staggered terms of
891 3 years or until their successors are appointed and have
892 qualified; however, a director may not serve for more than 6
893 consecutive years.
894 (c) The directors shall be appointed by the Chief Financial
895 Officer as follows:
896 1. One citizen representative who is not affiliated with
897 any of the groups identified in subparagraphs 2.-7.
898 2. One representative of participating physicians.
899 3. One representative of hospitals.
900 4. One representative of casualty insurers.
901 5. One representative of physicians other than
902 participating physicians.
903 6. One family member of a participant parent or legal
904 guardian representative of an injured infant under the plan.
905 7. One representative of an advocacy organization for
906 children with disabilities.
907 Section 9. This act shall take effect July 1, 2026.