Florida Senate - 2026 CS for SB 1668
By the Appropriations Committee on Agriculture, Environment, and
General Government; and Senator Burton
601-03238-26 20261668c1
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 for Health Care
5 Administration to recover from the Florida Birth
6 Related Neurological Injury Compensation Association
7 specified costs incurred by Medicaid; reordering and
8 amending s. 766.302, F.S.; defining the terms “office”
9 and “participant”; revising definitions; amending s.
10 766.303, F.S.; revising the exclusiveness of rights
11 and remedies of the Florida Birth-Related Neurological
12 Injury Compensation Plan; making technical and
13 conforming changes; amending s. 766.305, F.S.; making
14 technical and conforming changes; amending s. 766.309,
15 F.S.; conforming a cross-reference; amending s.
16 766.31, F.S.; revising the expenses covered by an
17 award for compensation under the plan; revising
18 services eligible for compensation under certain
19 annual benefits under the plan; providing an
20 additional benefit for psychotherapeutic services for
21 family members upon the death of a participant;
22 revising eligibility criteria for transportation and
23 housing assistance benefits under the plan; providing
24 coverage of certain legal costs under the plan;
25 requiring the plan to reimburse certain claims and
26 payments for plan participants also enrolled in the
27 state Medicaid program; requiring that such funds be
28 credited to the agency’s Medical Care Trust Fund;
29 requiring the plan to reimburse certain participants
30 by a specified date; prohibiting compensation under
31 the plan for family residential or custodial care
32 under certain circumstances; authorizing the
33 association to file a petition with the Division of
34 Administrative Hearings if there is a dispute
35 regarding overpayment of an expense reimbursement
36 under the plan; deleting obsolete language; requiring
37 family members of plan participants to continuously
38 maintain certain health insurance coverage for the
39 participant; requiring family members of plan
40 participants to obtain such coverage or apply for
41 Medicaid coverage within a specified timeframe after
42 entry of a final order for an award for compensation
43 under the plan; requiring family members of current
44 plan participants to obtain the requisite health
45 insurance coverage by a specified date; amending s.
46 766.314, F.S.; requiring the directors of the
47 association to submit a plan of operation, and any
48 amendments thereto, to the Office of Insurance
49 Regulation for approval; revising requirements for
50 such plan; revising the schedule of assessments
51 participating hospitals and physicians are required to
52 pay to the association; deleting obsolete language;
53 making technical and conforming changes; requiring the
54 association to submit revised quarterly claim
55 estimates to the office within a specified timeframe;
56 extending the timeframe in which the association is
57 authorized to accept new claims notwithstanding
58 certain other provisions; requiring the association to
59 notify the Governor, the Legislature, the office, the
60 agency, and the Department of Health within a
61 specified timeframe if certain plan estimates exceed
62 specified limits; postponing the future repeal of a
63 specified provision; amending s. 766.315, F.S.;
64 revising membership of the association’s board of
65 directors; prohibiting the board of directors from
66 creating new benefits or expanding existing benefits
67 under the plan under certain circumstances; revising
68 requirements for certain reports of the association;
69 providing an effective date.
70
71 Be It Enacted by the Legislature of the State of Florida:
72
73 Section 1. Paragraph (a) of subsection (7) of section
74 409.910, Florida Statutes, is amended to read:
75 409.910 Responsibility for payments on behalf of Medicaid
76 eligible persons when other parties are liable.—
77 (7) The agency shall recover the full amount of all medical
78 assistance provided by Medicaid on behalf of the recipient to
79 the full extent of third-party benefits.
80 (a) Recovery of such benefits shall be collected directly
81 from:
82 1. Any third party;
83 2. The recipient or legal representative, if he or she has
84 received third-party benefits;
85 3. The provider of a recipient’s medical services if third
86 party benefits have been recovered by the provider;
87 notwithstanding any provision of this section, to the contrary,
88 however, no provider shall be required to refund or pay to the
89 agency any amount in excess of the actual third-party benefits
90 received by the provider from a third-party payor for medical
91 services provided to the recipient; or
92 4. Any person who has received the third-party benefits; or
93 5. The Florida Birth-Related Neurological Injury
94 Compensation Association for plan participant costs incurred
95 under s. 766.31.
96
97 The provisions of this subsection do not apply to any proceeds
98 received by the state, or any agency thereof, pursuant to a
99 final order, judgment, or settlement agreement, in any matter in
100 which the state asserts claims brought on its own behalf, and
101 not as a subrogee of a recipient, or under other theories of
102 liability. The provisions of this subsection do not apply to any
103 proceeds received by the state, or an agency thereof, pursuant
104 to a final order, judgment, or settlement agreement, in any
105 matter in which the state asserted both claims as a subrogee and
106 additional claims, except as to those sums specifically
107 identified in the final order, judgment, or settlement agreement
108 as reimbursements to the recipient as expenditures for the named
109 recipient on the subrogation claim.
110 Section 2. Section 766.302, Florida Statutes, is reordered
111 and amended to read:
112 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
113 766.301-766.316, the term:
114 (1)(4) “Administrative law judge” means an administrative
115 law judge appointed by the division.
116 (2)(1) “Association” means the Florida Birth-Related
117 Neurological Injury Compensation Association established in s.
118 766.315 to administer the Florida Birth-Related Neurological
119 Injury Compensation Plan and the plan of operation established
120 in s. 766.314.
121 (3)(2) “Birth-related neurological injury” means injury to
122 the brain or spinal cord of a live infant weighing at least
123 2,500 grams for a single gestation or, in the case of a multiple
124 gestation, a live infant weighing at least 2,000 grams at birth
125 caused by oxygen deprivation or mechanical injury occurring in
126 the course of labor, delivery, or resuscitation in the immediate
127 postdelivery period in a hospital, which renders the infant
128 permanently and substantially mentally and physically impaired.
129 This definition shall apply to live births only and does shall
130 not include disability or death caused by genetic or congenital
131 abnormality.
132 (4)(3) “Claimant” means any person who files a claim
133 pursuant to s. 766.305 for compensation for a birth-related
134 neurological injury to an infant. Such a claim may be filed by
135 any legal representative on behalf of an injured infant; and, in
136 the case of a deceased infant, the claim may be filed by an
137 administrator, personal representative, or other legal
138 representative thereof.
139 (5) “Division” means the Division of Administrative
140 Hearings of the Department of Management Services.
141 (6)(9) “Family member” means a father, mother, or legal
142 guardian.
143 (7)(10) “Family residential or custodial care” means care
144 normally rendered by trained professional attendants which is
145 beyond the scope of child care duties, but which is provided by
146 family members. Family members who provide nonprofessional
147 residential or custodial care may not be compensated under this
148 act for care that falls within the scope of child care duties
149 and other services normally and gratuitously provided by family
150 members. Family residential or custodial care shall be performed
151 only at the direction and control of a physician when such care
152 is medically necessary. Reasonable charges for expenses for
153 family residential or custodial care provided by a family member
154 shall be determined as follows:
155 (a) If the family member is not employed, the per-hour
156 value equals the federal minimum hourly wage.
157 (b) If the family member is employed and elects to leave
158 that employment to provide such care, the per-hour value of that
159 care shall equal the rates established by Medicaid for private
160 duty services provided by a home health aide. A family member or
161 a combination of family members providing care in accordance
162 with this definition may not be compensated for more than a
163 total of 10 hours per day. Family care is in lieu of
164 professional residential or custodial care, and no professional
165 residential or custodial care may be awarded for the period of
166 time during the day that family care is being provided.
167 (8)(6) “Hospital” means any hospital licensed in Florida.
168 (9) “Office” means the Office of Insurance Regulation.
169 (10) “Participant” means the person who suffered a birth
170 related neurological injury as an infant and who accepted
171 compensation under the plan by final order entered by an
172 administrative law judge pursuant to s. 766.309.
173 (11)(7) “Participating physician” means a physician
174 licensed in Florida to practice medicine who practices
175 obstetrics or performs obstetrical services either full time or
176 part time and who had paid or was exempted from payment at the
177 time of the injury the assessment required for participation in
178 the birth-related neurological injury compensation plan for the
179 year in which the injury occurred. Such term does shall not
180 apply to any physician who practices medicine as an officer,
181 employee, or agent of the Federal Government.
182 (12)(8) “Plan” means the Florida Birth-Related Neurological
183 Injury Compensation Plan established under s. 766.303.
184 Section 3. Section 766.303, Florida Statutes, is amended to
185 read:
186 766.303 Florida Birth-Related Neurological Injury
187 Compensation Plan; exclusiveness of remedy.—
188 (1) There is established the Florida Birth-Related
189 Neurological Injury Compensation Plan for the purpose of
190 providing compensation, irrespective of fault, for birth-related
191 neurological injuries injury claims. Such plan shall apply to
192 births occurring on or after January 1, 1989, and shall be
193 administered by the Florida Birth-Related Neurological Injury
194 Compensation Association.
195 (2) The rights and remedies granted by this plan on account
196 of a birth-related neurological injury shall exclude all other
197 rights and remedies of such infant, her or his personal
198 representative, family members parents, dependents, and next of
199 kin, at common law or otherwise, against any person or entity
200 directly involved with the labor, delivery, or immediate
201 postdelivery resuscitation during which such injury occurs,
202 arising out of or related to a medical negligence claim with
203 respect to such injury; except that a civil action may shall not
204 be foreclosed where there is clear and convincing evidence of
205 bad faith or malicious purpose or willful and wanton disregard
206 of human rights, safety, or property, provided that such suit is
207 filed prior to and in lieu of payment of an award under ss.
208 766.301-766.316. Such suit shall be filed before the award of
209 the division becomes conclusive and binding as provided for in
210 s. 766.311.
211 (3) Sovereign immunity is hereby waived on behalf of the
212 Florida Birth-Related Neurological Injury Compensation
213 Association solely to the extent necessary to assure payment of
214 compensation as provided in s. 766.31.
215 (4) The association shall administer the plan in a manner
216 that promotes and protects the health and best interests of
217 participants children with birth-related neurological injuries.
218 Section 4. Subsections (1) and (3) of section 766.305,
219 Florida Statutes, are amended to read:
220 766.305 Filing of claims and responses; medical
221 disciplinary review.—
222 (1) All claims filed for compensation under the plan must
223 shall commence by the claimant filing with the division a
224 petition that includes all of seeking compensation. Such
225 petition shall include the following information:
226 (a) The name and address of the legal representative and
227 the basis for her or his representation of the injured infant.
228 (b) The name and address of the injured infant.
229 (c) The name and address of any physician providing
230 obstetrical services who was present at the birth and the name
231 and address of the hospital at which the birth occurred.
232 (d) A description of the disability for which the claim is
233 made.
234 (e) The time and place the injury occurred.
235 (f) A brief statement of the facts and circumstances
236 surrounding the injury and giving rise to the claim.
237 (3) The claimant shall furnish to the Florida Birth-Related
238 Neurological Injury Compensation association the following
239 information, which must be filed with the association within 10
240 days after the filing of the petition as set forth in subsection
241 (1):
242 (a) All available relevant medical records relating to the
243 birth-related neurological injury and a list identifying any
244 unavailable records known to the claimant and the reasons for
245 the records’ unavailability.
246 (b) Appropriate assessments, evaluations, and prognoses and
247 such other records and documents as are reasonably necessary for
248 the determination of the amount of compensation to be paid to,
249 or on behalf of, the injured infant on account of the birth
250 related neurological injury.
251 (c) Documentation of expenses and services incurred to date
252 which identifies any payment made for such expenses and services
253 and the payor.
254 (d) Documentation of any applicable private or governmental
255 source of services or reimbursement relative to the impairments.
256
257 The information required by paragraphs (a)-(d) shall remain
258 confidential and exempt under the provisions of s. 766.315(6)(b)
259 s. 766.315(5)(b).
260 Section 5. Paragraph (a) of subsection (1) of section
261 766.309, Florida Statutes, is amended to read:
262 766.309 Determination of claims; presumption; findings of
263 administrative law judge binding on participants.—
264 (1) The administrative law judge shall make the following
265 determinations based upon all available evidence:
266 (a) Whether the injury claimed is a birth-related
267 neurological injury. If the claimant has demonstrated, to the
268 satisfaction of the administrative law judge, that the infant
269 has sustained a brain or spinal cord injury caused by oxygen
270 deprivation or mechanical injury and that the infant was thereby
271 rendered permanently and substantially mentally and physically
272 impaired, a rebuttable presumption shall arise that the injury
273 is a birth-related neurological injury as defined in s. 766.302
274 s. 766.302(2).
275 Section 6. Section 766.31, Florida Statutes, is amended to
276 read:
277 766.31 Administrative law judge awards for birth-related
278 neurological injuries; notice of award.—
279 (1) Upon determining that an infant has sustained a birth
280 related neurological injury and that obstetrical services were
281 delivered by a participating physician at the birth, the
282 administrative law judge shall make an award providing
283 compensation for the following items relative to such injury:
284 (a) Actual expenses incurred since the date of birth for
285 medically necessary and reasonable:
286 1. Medical and hospital care and services;,
287 2. Habilitative services; and training,
288 3. Dental services;
289 4. Family residential or custodial care;,
290 5. Professional residential care;, and
291 6. Professional custodial care; and service,
292 7. for medically necessary Drugs;,
293 8. Special equipment;, and facilities, and
294 9. for Related travel.
295 (b) At a minimum, compensation must be provided for the
296 following actual expenses:
297 1. Psychotherapeutic services for A total annual benefit of
298 up to $10,000 for immediate family members and other relatives
299 who have resided reside with the participant, which are infant
300 for psychotherapeutic services obtained from a psychiatrist
301 licensed under chapter 458 or chapter 459, a provider providers
302 licensed under chapter 490 or chapter 491, or a psychiatrist or
303 provider who has equivalent licensure by another jurisdiction.
304 This benefit for such family members and relatives shall be up
305 to a total of $10,000 annually during the participant’s lifetime
306 and up to a total of $20,000 subsequent to the participant’s
307 death.
308 2. For the life of the participant child, providing family
309 members parents or legal guardians with a reliable method of
310 transporting transportation for the care of the participant and
311 child or reimbursing the cost of upgrading an existing vehicle
312 to accommodate the participant’s wheelchair and medically
313 necessary equipment child’s needs when it becomes medically
314 necessary for wheelchair transportation. The mode of
315 transportation must take into account the special accommodations
316 required for the specific child. The plan may not limit such
317 transportation assistance based on the participant’s child’s age
318 or weight. The plan must replace any vehicle vans purchased by
319 the plan every 7 years or 150,000 miles, whichever comes first.
320 3. Housing assistance of up to $100,000 for the life of the
321 participant child, including, but not limited to, a down payment
322 on a new home, moving expenses, and home construction and
323 modification costs.
324 4. Legal costs associated with establishing and maintaining
325 guardianship for a participant.
326 (c)1. The costs of a health insurance policy or contract
327 that provides major medical or similar comprehensive health
328 coverage for the participant obtained pursuant to subsection
329 (3), including, but not limited to, the premium and out-of
330 pocket costs. For participants enrolled in the state Medicaid
331 program, the plan must reimburse fee-for-service paid claims and
332 capitation payments, as applicable, for services provided to
333 such participants pursuant to this section and for the
334 administrative and support costs associated with the provided
335 medical assistance. Such funds shall be credited to the Agency
336 for Health Care Administration’s Medical Care Trust Fund.
337 2. By December 31, 2026, the plan shall reimburse any
338 participant for reasonable, medically necessary care received by
339 the participant on or before June 30, 2026, which was reduced or
340 not paid by the plan because such participant did not have
341 health coverage.
342 (d)(b) However, the following expenses are not subject to
343 compensation:
344 1. Expenses for items or services that the participant
345 infant has received, or is entitled to receive, under the laws
346 of any state or the Federal Government, except to the extent
347 such exclusion may be prohibited by federal law.
348 2. Expenses for items or services that the participant
349 infant has received, or is contractually entitled to receive,
350 from any prepaid health plan, health maintenance organization,
351 or other private insuring entity.
352 3. Expenses for which the participant infant has received
353 reimbursement, or for which the participant infant is entitled
354 to receive reimbursement, under the laws of any state or the
355 Federal Government, except to the extent such exclusion may be
356 prohibited by federal law.
357 4. Expenses for which the participant infant has received
358 reimbursement, or for which the participant infant is
359 contractually entitled to receive reimbursement, pursuant to the
360 provisions of any health or sickness insurance policy or other
361 private insurance program.
362 5. Expenses for family residential or custodial care
363 provided by a family member while:
364 a. Care and supervision of the participant is
365 simultaneously being provided by another person or entity; or
366 b. The family member receives compensation from another
367 source for work performed during the same time for which
368 compensation is sought from the association.
369 (e)(c) Expenses included under paragraphs paragraph (a) and
370 (b) are limited to reasonable charges prevailing in the same
371 community for similar treatment of injured persons when such
372 treatment is paid for by the injured person.
373 (f)1. A family member The parents or legal guardians
374 receiving benefits under the plan may file a petition with the
375 division of Administrative Hearings to dispute the amount of
376 actual expenses reimbursed or a denial of reimbursement.
377 2. In the case of an alleged overpayment of an expense
378 reimbursement by the association to a family member, if the
379 family member does not agree that an overpayment has occurred,
380 the association may file a petition for division review of the
381 overpayment for a determination of the amount, if any, to be
382 recouped by the association.
383 (g)1.(d)1.a. Periodic payments of an award to the family
384 members parents or legal guardians of the participant infant
385 found to have sustained a birth-related neurological injury,
386 which award may not exceed $100,000. However, at the discretion
387 of the administrative law judge, such award may be made in a
388 lump sum. Beginning on January 1, 2021, the award may not exceed
389 $250,000, and each January 1 thereafter, the maximum award
390 authorized under this paragraph shall increase by 3 percent.
391 b. Parents or legal guardians who received an award
392 pursuant to this section before January 1, 2021, must receive a
393 retroactive payment in an amount sufficient to bring the total
394 award paid to the parents or legal guardians pursuant to sub
395 subparagraph a. to $250,000. This additional payment may be made
396 in a lump sum or in periodic payments as designated by the
397 parents or legal guardians and must be paid by July 1, 2021.
398 2.a. Death benefit for the participant infant in an amount
399 of $50,000.
400 b. Parents or legal guardians who received an award
401 pursuant to this section, and whose child died since the
402 inception of the program, must receive a retroactive payment in
403 an amount sufficient to bring the total award paid to the
404 parents or legal guardians pursuant to sub-subparagraph a. to
405 $50,000. This additional payment may be made in a lump sum or in
406 periodic payments as designated by the parents or legal
407 guardians and must be paid by July 1, 2021.
408 (h)(e) Reasonable expenses incurred in connection with the
409 filing of a claim under ss. 766.301-766.316, including
410 reasonable attorney attorney’s fees, which shall be subject to
411 the approval and award of the administrative law judge. In
412 determining an award for attorney attorney’s fees, the
413 administrative law judge shall consider the following factors:
414 1. The time and labor required, the novelty and difficulty
415 of the questions involved, and the skill requisite to perform
416 the legal services properly.
417 2. The fee customarily charged in the locality for similar
418 legal services.
419 3. The time limitations imposed by the claimant or the
420 circumstances.
421 4. The nature and length of the professional relationship
422 with the claimant.
423 5. The experience, reputation, and ability of the lawyer or
424 lawyers performing services.
425 6. The contingency or certainty of a fee.
426
427 If there is Should there be a final determination of
428 compensability, and the claimants accept an award under this
429 section, the claimants are not liable for any expenses,
430 including attorney fees, incurred in connection with the filing
431 of a claim under ss. 766.301-766.316 other than those expenses
432 awarded under this section.
433 (2) The award shall require the immediate payment of
434 expenses previously incurred and shall require that future
435 expenses be paid as incurred.
436 (3) A family member must continuously maintain
437 comprehensive major medical health coverage for the participant.
438 (a) If the participant does not have such coverage at the
439 time of entry of a final order by an administrative law judge
440 approving a claim for compensation, the family member must
441 obtain coverage within 60 days after entry of such order or
442 apply for Medicaid coverage within 30 days after entry of such
443 order.
444 (b) If the participant is determined to be ineligible for
445 Medicaid, the family member must obtain other coverage within 60
446 days after receiving the Medicaid application denial.
447 (c) A family member of an individual who is a participant
448 on June 30, 2026, must obtain the required coverage for the
449 participant by January 1, 2027.
450 (4)(3) A copy of the award shall be sent immediately by
451 registered or certified mail to each person served with a copy
452 of the petition under s. 766.305(2).
453 Section 7. Section 766.314, Florida Statutes, is amended to
454 read:
455 766.314 Assessments; plan of operation.—
456 (1) The assessments established under pursuant to this
457 section shall be used to finance the Florida Birth-Related
458 Neurological Injury Compensation Plan.
459 (2) The assessments and appropriations dedicated to the
460 plan shall be administered by the Florida Birth-Related
461 Neurological Injury Compensation Association established in s.
462 766.315, in accordance with the following requirements:
463 (a) On or before July 1, 1988, The directors of the
464 association shall submit to the office Department of Insurance
465 for review and approval a plan of operation and any amendment
466 thereto which shall provide for the efficient administration of
467 the plan and for prompt processing of claims against and awards
468 made on behalf of the plan.
469 (b) The plan of operation must shall include provision for:
470 1. Establishment of necessary facilities;
471 2. Management of the funds collected on behalf of the plan;
472 3. Processing of claims against the plan;
473 4. Assessment of the persons and entities listed in
474 subsections (4) and (5) to pay awards and expenses, which
475 assessments shall be on an actuarially sound basis subject to
476 the limits set forth in subsections (4) and (5);
477 5. A fraud and overpayment prevention and detection
478 program; and
479 6.5. Any other matters necessary for the efficient
480 operation of the Florida Birth-Related Neurological Injury
481 Compensation Plan.
482 (b) Amendments to the plan of operation may be made by the
483 directors of the plan, subject to the approval of the office of
484 Insurance Regulation of the Financial Services Commission.
485 (3) All assessments shall be deposited with the Florida
486 Birth-Related Neurological Injury Compensation association. The
487 funds collected by the association and any income therefrom
488 shall be disbursed only for the payment of awards under ss.
489 766.301-766.316 and for the payment of the reasonable expenses
490 of administering the plan.
491 (4) The following persons and entities shall pay into the
492 association assessments as follows an initial assessment in
493 accordance with the plan of operation:
494 (a)1. On or before October 1, 1988, Each hospital licensed
495 under chapter 395 shall pay an initial assessment of $50 per
496 infant delivered in that the hospital during the prior calendar
497 year, as reported to the Agency for Health Care Administration;
498 provided, however, that a hospital owned or operated by the
499 state or a county, special taxing district, or other political
500 subdivision of the state shall not be required to pay the
501 initial assessment or any assessment required by this subsection
502 or subsection (5). The term “infant delivered” includes live
503 births and not stillbirths, but the term does not include
504 infants delivered by employees or agents of the board of
505 trustees of a state university, those born in a teaching
506 hospital as defined in s. 408.07, or those born in a teaching
507 hospital as defined in s. 395.806 that have been deemed by the
508 association as being exempt from assessments since fiscal year
509 1997 to fiscal year 2001. The initial assessment and any
510 assessment imposed pursuant to subsection (5) may not include
511 any infant born to a charity patient (as defined by rule of the
512 Agency for Health Care Administration) or born to a patient for
513 whom the hospital receives Medicaid reimbursement, if the sum of
514 the annual charges for charity patients plus the annual Medicaid
515 contractuals of the hospital exceeds 10 percent of the total
516 annual gross operating revenues of the hospital. The hospital is
517 responsible for documenting, to the satisfaction of the
518 association, the exclusion of any birth from the computation of
519 the assessment. Upon demonstration of financial need by a
520 hospital, the association may provide for installment payments
521 of assessments.
522 2. Assessments are due, and hospitals shall pay all
523 assessments required under this section, by December 31 of the
524 calendar year immediately subsequent to the birth year.
525 (b)1.a. On or before October 15, 1988, All physicians
526 licensed pursuant to chapter 458 or chapter 459 as of October 1,
527 1988, other than participating physicians, shall be assessed an
528 annual initial assessment of $250.,
529 b. Payment for all assessments required under this
530 paragraph is due on or before December 31 of each year which
531 must be paid no later than December 1, 1988.
532 2. Any such physician who becomes licensed after September
533 30, 1988, and before January 1, 1989, shall pay into the
534 association an initial assessment of $250 upon licensure.
535 3. Any such physician who becomes licensed on or after
536 January 1, 1989, shall pay an initial assessment equal to the
537 most recent assessment made pursuant to this paragraph,
538 paragraph (5)(a), or paragraph (7)(b).
539 2.4. However, if the physician is a physician specified in
540 this subparagraph, the assessment is not applicable:
541 a. A resident physician, assistant resident physician, or
542 intern in an approved postgraduate training program, as defined
543 by the Board of Medicine or the Board of Osteopathic Medicine by
544 rule;
545 b. A retired physician who has withdrawn from the practice
546 of medicine but who maintains an active license as evidenced by
547 an affidavit filed with the Department of Health. Prior to
548 reentering the practice of medicine in this state, a retired
549 physician as herein defined must notify the Board of Medicine or
550 the Board of Osteopathic Medicine and pay the appropriate
551 assessments pursuant to this section;
552 c. A physician who holds a limited license pursuant to s.
553 458.317 and who is not being compensated for medical services;
554 d. A physician who is employed full time by the United
555 States Department of Veterans Affairs and whose practice is
556 confined to United States Department of Veterans Affairs
557 hospitals; or
558 e. A physician who is a member of the Armed Forces of the
559 United States and who meets the requirements of s. 456.024.
560 f. A physician who is employed full time by the State of
561 Florida and whose practice is confined to state-owned
562 correctional institutions, a county health department, or state
563 owned mental health or developmental services facilities, or who
564 is employed full time by the Department of Health.
565 (c)1. On or before December 1, 1988, Each physician
566 licensed pursuant to chapter 458 or chapter 459 who wishes to
567 participate in the Florida Birth-Related Neurological Injury
568 Compensation Plan and who otherwise qualifies as a participating
569 physician under ss. 766.301-766.316 shall pay an annual initial
570 assessment of $5,000 and any assessment required under paragraph
571 (5)(a), if assessed. However, if the physician is either a
572 resident physician, assistant resident physician, or intern in
573 an approved postgraduate training program, as defined by the
574 Board of Medicine or the Board of Osteopathic Medicine by rule,
575 and is supervised in accordance with program requirements
576 established by the Accreditation Council for Graduate Medical
577 Education or the American Osteopathic Association by a physician
578 who is participating in the plan, such resident physician,
579 assistant resident physician, or intern is deemed to be a
580 participating physician without the payment of the assessment.
581 Participating physicians also include any employee of the board
582 of trustees of a state university who has paid the assessment
583 required by this paragraph and, if assessed, paragraph (5)(a),
584 and any certified nurse midwife supervised by such employee.
585 Participating physicians include any certified nurse midwife who
586 has paid 50 percent of the physician assessment required by this
587 paragraph and, if assessed, paragraph (5)(a) and who is
588 supervised by a participating physician who has paid the
589 assessment required by this paragraph and, if assessed,
590 paragraph (5)(a). Supervision for nurse midwives shall require
591 that the supervising physician will be easily available and have
592 a prearranged plan of treatment for specified patient problems
593 which the supervised certified nurse midwife may carry out in
594 the absence of any complicating features. Any physician who
595 elects to participate in such plan on or after January 1, 1989,
596 who was not a participating physician at the time of such
597 election to participate and who otherwise qualifies as a
598 participating physician under ss. 766.301-766.316 shall pay an
599 additional initial assessment equal to the most recent
600 assessment made pursuant to this paragraph, paragraph (5)(a), or
601 paragraph (7)(b).
602 2. Payment of assessments required by this paragraph is due
603 on or before December 31 of each year for qualification as a
604 participating physician during the next calendar year. If
605 payment of the assessments is received by the association on or
606 before January 31 of any calendar year, the physician shall
607 qualify as a participating physician for that entire calendar
608 year. If the payment is received after January 31, the physician
609 shall qualify as a participating physician for that calendar
610 year only from the date the payment was received by the
611 association.
612 (d) Any hospital located in a county with a population in
613 excess of 1.1 million as of January 1, 2003, as determined by
614 the Agency for Health Care Administration under the Health Care
615 Responsibility Act, may elect to pay the assessments required by
616 paragraph (c) fee for the participating physician and the
617 certified nurse midwife if the hospital first determines that
618 the primary motivating purpose for making such payment is to
619 ensure coverage for the hospital’s patients under the provisions
620 of ss. 766.301-766.316; however, no hospital may restrict any
621 participating physician or nurse midwife, directly or
622 indirectly, from being on the staff of hospitals other than the
623 staff of the hospital making the payment. Each hospital shall
624 file with the association an affidavit setting forth
625 specifically the reasons why the hospital elected to make the
626 payment on behalf of each participating physician and certified
627 nurse midwife. The payments authorized under this paragraph
628 shall be in addition to the assessment set forth in paragraph
629 (5)(a).
630 (5)(a) Beginning January 1, 1990, The persons and entities
631 listed in paragraphs (4)(b) and (c), except those persons or
632 entities who are specifically excluded from such said
633 provisions, as of the date determined in accordance with the
634 plan of operation, taking into account persons licensed
635 subsequent to the payment of the initial assessment, shall pay
636 an annual assessment in the amount equal to the initial
637 assessments provided in paragraphs (4)(b) and (c). If payment of
638 the annual assessment by a physician is received by the
639 association by January 31 of any calendar year, the physician
640 shall qualify as a participating physician for that entire
641 calendar year. If the payment is received after January 31 of
642 any calendar year, the physician shall qualify as a
643 participating physician for that calendar year only from the
644 date the payment was received by the association. On January 1,
645 1991, and on each January 1 thereafter, the association shall
646 determine the amount of additional assessments necessary
647 pursuant to subsection (7), in the manner required by the plan
648 of operation, subject to any increase determined to be necessary
649 by the office of Insurance Regulation pursuant to paragraph
650 (7)(b). On July 1, 1991, and on each July 1 thereafter, the
651 persons and entities listed in paragraphs (4)(b) and (c), except
652 those persons or entities who are specifically excluded from
653 such said provisions, shall pay the additional assessments which
654 were determined on January 1. Beginning January 1, 1990, the
655 entities listed in paragraph (4)(a), including those licensed on
656 or after October 1, 1988, shall pay an annual assessment of $50
657 per infant delivered during the prior calendar year. The
658 additional assessments which were determined on January 1, 1991,
659 pursuant to the provisions of subsection (7) shall not be due
660 and payable by the entities listed in paragraph (4)(a) until
661 July 1.
662 (b) If the assessments collected pursuant to subsection (4)
663 and the appropriation of funds provided by s. 76, chapter 88-1,
664 Laws of Florida, as amended by s. 41, chapter 88-277, Laws of
665 Florida, to the plan from the Insurance Regulatory Trust Fund
666 are insufficient to maintain the plan on an actuarially sound
667 basis, there is hereby appropriated for transfer to the
668 association from the Insurance Regulatory Trust Fund an
669 additional amount of up to $20 million.
670 (c)1. Taking into account the assessments collected
671 pursuant to subsection (4) and appropriations from the Insurance
672 Regulatory Trust Fund, if required to maintain the plan on an
673 actuarially sound basis, the office of Insurance Regulation
674 shall require each entity licensed to issue casualty insurance
675 as defined in s. 624.605(1)(b), (k), and (q) to pay into the
676 association an annual assessment in an amount determined by the
677 office pursuant to paragraph (7)(a), in the manner required by
678 the plan of operation.
679 2. All annual assessments shall be made on the basis of net
680 direct premiums written for the business activity that which
681 forms the basis for each such entity’s inclusion as a funding
682 source for the plan in the state during the prior year ending
683 December 31, as reported to the office of Insurance Regulation,
684 and shall be in the proportion that the net direct premiums
685 written by each carrier on account of the business activity
686 forming the basis for its inclusion in the plan bears to the
687 aggregate net direct premiums for all such business activity
688 written in this state by all such entities.
689 3. No entity listed in this paragraph shall be individually
690 liable for an annual assessment in excess of 0.25 percent of
691 that entity’s net direct premiums written.
692 4. Casualty insurance carriers shall be entitled to recover
693 their initial and annual assessments through a surcharge on
694 future policies, a rate increase applicable prospectively, or a
695 combination of the two.
696 (6)(a) The association shall make all assessments required
697 by this section, except initial assessments of physicians newly
698 licensed by the Department of Health, which assessments will be
699 made by the Department of Health, and except assessments of
700 casualty insurers pursuant to subparagraph (5)(c)1., which
701 assessments will be made by the office of Insurance Regulation.
702 The Department of Health shall provide the association, in an
703 electronic format, with a monthly report of the names and
704 license numbers of all physicians licensed under chapter 458 or
705 chapter 459.
706 (b)1. The association may enforce collection of assessments
707 required to be paid pursuant to ss. 766.301-766.316 by suit
708 filed in county court, or in circuit court if the amount due
709 could exceed the jurisdictional limits of county court. The
710 association is entitled to an award of attorney fees, costs, and
711 interest upon the entry of a judgment against a physician for
712 failure to pay such assessment, with such interest accruing
713 until paid. Notwithstanding chapters 47 and 48, the association
714 may file such suit in either Leon County or the county of the
715 residence of the defendant. The association shall notify the
716 Department of Health and the applicable board of any unpaid
717 final judgment against a physician within 7 days after the entry
718 of final judgment.
719 2. The Department of Health, upon notification by the
720 association that an assessment has not been paid and that there
721 is an unsatisfied judgment against a physician, shall refuse to
722 renew any license issued to such physician under chapter 458 or
723 chapter 459 until the association notifies the Department of
724 Health that the judgment is satisfied in full.
725 (c) The Agency for Health Care Administration shall, upon
726 notification by the association that an assessment has not been
727 timely paid, enforce collection of such assessments required to
728 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
729 a hospital to pay such assessment is grounds for disciplinary
730 action pursuant to s. 395.1065 notwithstanding any law to the
731 contrary.
732 (7)(a) The office of Insurance Regulation shall undertake
733 an actuarial investigation of the requirements of the plan based
734 on the plan’s experience in the first year of operation and any
735 additional relevant information, including without limitation
736 the assets and liabilities of the plan. Pursuant to such
737 investigation, the office of Insurance Regulation shall
738 establish the rate of contribution of the entities listed in
739 paragraph (5)(c) for the tax year beginning January 1, 1990.
740 Following the initial valuation, the office of Insurance
741 Regulation shall cause an actuarial valuation to be made of the
742 assets and liabilities of the plan no less frequently than
743 biennially. Pursuant to the results of such valuations, the
744 office of Insurance Regulation shall prepare a statement as to
745 the contribution rate applicable to the entities listed in
746 paragraph (5)(c). However, at no time shall the rate be greater
747 than 0.25 percent of net direct premiums written.
748 (b) If the office of Insurance Regulation finds that the
749 plan cannot be maintained on an actuarially sound basis based on
750 the assessments and appropriations listed in subsections (4) and
751 (5), the office shall increase the assessments specified in
752 subsection (4) on a proportional basis as needed.
753 (8) The association shall report to the Legislature its
754 determination as to the annual cost of maintaining the fund on
755 an actuarially sound basis. In making its determination, the
756 association shall consider the recommendations of all hospitals,
757 physicians, casualty insurers, attorneys, consumers, and any
758 associations representing any such person or entity.
759 Notwithstanding the provisions of s. 395.3025, all hospitals,
760 casualty insurers, departments, boards, commissions, and
761 legislative committees shall provide the association with all
762 relevant records and information upon request to assist the
763 association in making its determination. All hospitals shall,
764 upon request by the association, provide the association with
765 information from their records regarding any live birth. Such
766 information may shall not include the name of any physician, the
767 name of any hospital employee or agent, the name of the patient,
768 or any other information which will identify the infant involved
769 in the birth. Such information thereby obtained must shall be
770 utilized solely for the purpose of assisting the association and
771 may shall not subject the hospital to any civil or criminal
772 liability for the release thereof. Such information shall
773 otherwise be confidential and exempt from the provisions of s.
774 119.07(1) and s. 24(a), Art. I of the State Constitution.
775 (9)(a) Within 60 days after a claim is filed, the
776 association shall estimate the present value of the total cost
777 of the claim, including the estimated amount to be paid to the
778 claimant, the claimant’s attorney, the attorney attorney’s fees
779 of the association incident to the claim, and any other expenses
780 that are reasonably anticipated to be incurred by the
781 association in connection with the adjudication and payment of
782 the claim. For purposes of this estimate, the association should
783 include the maximum benefits for noneconomic damages.
784 (b) The association shall revise these estimates quarterly
785 based upon the actual costs incurred and any additional
786 information that becomes available to the association since the
787 last review of this estimate. The estimate shall be reduced by
788 any amounts paid by the association that were included in the
789 current estimate. The association shall submit revised quarterly
790 claim estimates to the office within 15 business days after the
791 end of each quarter.
792 (c)1. If the total of all current estimates equals or
793 exceeds 100 percent of the funds on hand and the funds that will
794 become available to the association within the next 12 months
795 from all sources described in subsection (4) and paragraph
796 (5)(a), the association may not accept any new claims without
797 express authority from the Legislature. This section does not
798 preclude the association from accepting any claim if the injury
799 occurred 18 months or more before the effective date of this
800 suspension. Within 30 days after the effective date of this
801 suspension, the association shall notify the Governor, the
802 President of the Senate, the Speaker of the House of
803 Representatives, the President of the Senate, the office of
804 Insurance Regulation, the Agency for Health Care Administration,
805 and the Department of Health of this suspension.
806 2. Notwithstanding this paragraph, the association is
807 authorized to accept new claims during the 2026-2027 2025-2026
808 fiscal year even if the total of all current estimates exceeds
809 the limits described in subparagraph 1. during that fiscal year;
810 however, if the total of all current estimates exceeds such
811 limits, the association must notify the Governor, the President
812 of the Senate, the Speaker of the House of Representatives, the
813 office, the Agency for Health Care Administration, and the
814 Department of Health within 5 days after it makes such
815 determination. This subparagraph expires July 1, 2027 2026.
816 (d) If any person is precluded from asserting a claim
817 against the association because of paragraph (c), the plan shall
818 not constitute the exclusive remedy for such person, his or her
819 personal representative, parents, dependents, or next of kin.
820 Section 8. Present subsections (5) through (8) of section
821 766.315, Florida Statutes, are redesignated as subsections (6)
822 through (9), respectively, a new subsection (5) is added to that
823 section, and subsection (1), paragraph (e) of present subsection
824 (5), and present subsections (7) and (8) of that section are
825 amended, to read:
826 766.315 Florida Birth-Related Neurological Injury
827 Compensation Association; board of directors; notice of
828 meetings; report.—
829 (1)(a) The Florida Birth-Related Neurological Injury
830 Compensation Plan shall be governed by a board of seven
831 directors which shall be known as the Florida Birth-Related
832 Neurological Injury Compensation Association. The association is
833 not a state agency, board, or commission. Notwithstanding the
834 provision of s. 15.03, the association is authorized to use the
835 state seal.
836 (b) The directors shall be appointed for staggered terms of
837 3 years or until their successors are appointed and have
838 qualified; however, a director may not serve for more than 6
839 consecutive years.
840 (c) The directors shall be appointed by the Chief Financial
841 Officer as follows:
842 1. One citizen representative who is not affiliated with
843 any of the groups identified in subparagraphs 2.-7.
844 2. One representative of participating physicians.
845 3. One representative of hospitals.
846 4. One representative of casualty insurers.
847 5. One representative of physicians other than
848 participating physicians.
849 6. One family member of a participant parent or legal
850 guardian representative of an injured infant under the plan.
851 7. One representative of an advocacy organization for
852 children with disabilities.
853 (5) Notwithstanding this section, the board of directors
854 may not create new benefits or expand existing benefits that
855 result in additional costs to the plan if the plan is operating
856 at an annual cash flow deficit, as documented in the plan’s
857 audited financial statements for the prior fiscal year.
858 (6)(5)
859 (e) Annually, the association shall furnish audited
860 financial reports to any plan participant upon request, to the
861 office of Insurance Regulation of the Financial Services
862 Commission, and to the Joint Legislative Auditing Committee. The
863 reports must be prepared in accordance with generally accepted
864 auditing standards accounting procedures and must include such
865 information as may be required by the office of Insurance
866 Regulation or the Joint Legislative Auditing Committee. At any
867 time determined to be necessary, the office of Insurance
868 Regulation or the Joint Legislative Auditing Committee may
869 conduct an audit of the plan.
870 (8)(7) The association shall publish a report on its
871 website by January 1 of each year. The report must shall include
872 all of the following:
873 (a) The names and terms of each board member and executive
874 staff member.
875 (b) The amount of compensation paid to each association
876 employee or independent contractor.
877 (c) A summary of reimbursement disputes and resolutions.
878 (d) A list of expenditures for attorney fees and lobbying
879 fees.
880 (e) Other expenses to oppose each plan claim. Any personal
881 identifying information of the parent, legal guardian, or child
882 involved in the claim must be removed from this list.
883 (9)(8) By November 1 of each year, the association shall
884 submit a report to the Governor, the President of the Senate,
885 the Speaker of the House of Representatives, and the Chief
886 Financial Officer. The report must include all of the following:
887 (a) The number of petitions filed for compensation with the
888 division, the number of claimants awarded compensation, the
889 number of claimants denied compensation, and the reasons for the
890 denial of compensation.
891 (b) The number and dollar amount of paid and denied
892 compensation for expenses by category and the reasons for any
893 denied compensation for expenses by category.
894 (c) The average turnaround time for paying or denying
895 compensation for expenses.
896 (d) Legislative recommendations to improve the program.
897 (e) A summary of any pending or resolved litigation during
898 the year which affects the plan.
899 (f) The amount of compensation paid to each association
900 employee, independent contractor, or member of the board of
901 directors.
902 Section 9. This act shall take effect July 1, 2026.