S 1668

ENROLLED
2026 Legislature  CS for CS for SB 1668, 1st Engrossed
                                                      20261668er
1
2An act relating to the Florida Birth-Related
3Neurological Injury Compensation Association; amending
4s. 409.910, F.S.; requiring the Agency for Health Care
5Administration to recover from the Florida Birth
6Related Neurological Injury Compensation Association
7specified costs incurred by Medicaid; reordering and
8amending s. 766.302, F.S.; defining terms; revising
9definitions; amending s. 766.303, F.S.; revising the
10exclusiveness of rights and remedies of the Florida
11Birth-Related Neurological Injury Compensation Plan;
12making technical and conforming changes; amending s.
13766.305, F.S.; making technical and conforming
14changes; amending s. 766.309, F.S.; conforming a
15cross-reference; amending s. 766.31, F.S.; revising
16the expenses covered by an award for compensation
17under the plan; revising services eligible for
18compensation under certain annual benefits under the
19plan; providing an additional benefit for
20psychotherapeutic services for family members upon the
21death of a participant; revising eligibility criteria
22for transportation and housing assistance benefits
23under the plan; providing coverage of certain legal
24costs under the plan; requiring the plan to reimburse
25certain claims and payments for plan participants also
26enrolled in the state Medicaid program; requiring that
27such funds be credited to the agency’s Medical Care
28Trust Fund; requiring the plan to reimburse certain
29participants by a specified date; prohibiting
30compensation under the plan for family residential or
31custodial care under certain circumstances;
32authorizing the association to file a petition with
33the Division of Administrative Hearings if there is a
34dispute regarding overpayment of an expense
35reimbursement under the plan; deleting obsolete
36language; requiring family members of plan
37participants to continuously maintain certain health
38insurance coverage for the participant; requiring
39family members of plan participants to obtain such
40coverage or apply for Medicaid coverage within a
41specified timeframe after entry of a final order for
42an award for compensation under the plan; requiring
43family members of current plan participants to obtain
44the requisite health insurance coverage by a specified
45date; amending s. 766.314, F.S.; revising requirements
46for the administration of assessments and
47appropriations dedicated to the Florida Birth-Related
48Neurological Injury Compensation Plan; revising the
49schedule of assessments participating hospitals and
50physicians are required to pay to the association;
51requiring the association to submit revised quarterly
52claim estimates to the office within a specified
53timeframe; requiring the association to assess its
54financial condition and issue a specified notice to
55the Office of Insurance Regulation in certain
56circumstances; requiring the Office of Insurance
57Regulation to review the association’s financial
58condition upon receipt of such report; providing
59criteria for review; providing the timeframe and
60criteria for the Office of Insurance Regulation’s
61biennial review of the association’s financial
62condition; requiring a determination regarding the
63plan’s short term cash flow; requiring the office to
64authorize transfers of funds to the association within
65a specified timeframe under certain circumstances;
66providing that the cumulative amount of such transfers
67may not exceed a specified amount over the life of the
68plan; providing the office with specified
69responsibilities; providing limitations on time and
70value of potential assessments; deleting reporting
71requirements; repealing a public records exemption;
72amending s. 766.315, F.S.; revising membership of the
73association’s board of directors; prohibiting the
74board of directors from creating new benefits or
75expanding existing benefits under the plan under
76certain circumstances; providing construction;
77revising requirements for certain reports of the
78association; providing an effective date.
79
80Be It Enacted by the Legislature of the State of Florida:
81
82Section 1. Paragraph (a) of subsection (7) of section
83409.910, Florida Statutes, is amended to read:
84409.910 Responsibility for payments on behalf of Medicaid
85eligible persons when other parties are liable.—
86(7) The agency shall recover the full amount of all medical
87assistance provided by Medicaid on behalf of the recipient to
88the full extent of third-party benefits.
89(a) Recovery of such benefits shall be collected directly
90from:
911. Any third party;
922. The recipient or legal representative, if he or she has
93received third-party benefits;
943. The provider of a recipient’s medical services if third
95party benefits have been recovered by the provider;
96notwithstanding any provision of this section, to the contrary,
97however, no provider shall be required to refund or pay to the
98agency any amount in excess of the actual third-party benefits
99received by the provider from a third-party payor for medical
100services provided to the recipient; [or]
1014. Any person who has received the third-party benefits; or
1025. The Florida Birth-Related Neurological Injury
103Compensation Association for plan participant costs incurred
104under s. 766.31.
105
106The provisions of this subsection do not apply to any proceeds
107received by the state, or any agency thereof, pursuant to a
108final order, judgment, or settlement agreement, in any matter in
109which the state asserts claims brought on its own behalf, and
110not as a subrogee of a recipient, or under other theories of
111liability. The provisions of this subsection do not apply to any
112proceeds received by the state, or an agency thereof, pursuant
113to a final order, judgment, or settlement agreement, in any
114matter in which the state asserted both claims as a subrogee and
115additional claims, except as to those sums specifically
116identified in the final order, judgment, or settlement agreement
117as reimbursements to the recipient as expenditures for the named
118recipient on the subrogation claim.
119Section 2. Section 766.302, Florida Statutes, is reordered
120and amended to read:
121766.302 Definitions; ss. 766.301-766.316.—As used in ss.
122766.301-766.316, the term:
123(1)“Actuarially sound” means that the total plan assets
124available to fund future liabilities are equal to or greater
125than 90 percent of the present value of total estimated
126liabilities excluding any risk margin.
127(2)[(4)] “Administrative law judge” means an administrative
128law judge appointed by the division.
129(3)[(1)] “Association” means the Florida Birth-Related
130Neurological Injury Compensation Association established in s.
131766.315 to administer the Florida Birth-Related Neurological
132Injury Compensation Plan and the plan of operation established
133in s. 766.314.
134(4)[(2)] “Birth-related neurological injury” means injury to
135the brain or spinal cord of a live infant weighing at least
1362,500 grams for a single gestation or, in the case of a multiple
137gestation, a live infant weighing at least 2,000 grams at birth
138caused by oxygen deprivation or mechanical injury occurring in
139the course of labor, delivery, or resuscitation in the immediate
140postdelivery period in a hospital, which renders the infant
141permanently and substantially mentally and physically impaired.
142This definition shall apply to live births only and does [shall]
143not include disability or death caused by genetic or congenital
144abnormality.
145(5)[(3)] “Claimant” means any person who files a claim
146pursuant to s. 766.305 [for compensation] for a birth-related
147neurological injury to an infant. Such a claim may be filed by
148any legal representative on behalf of an injured infant; and, in
149the case of a deceased infant, the claim may be filed by an
150administrator, personal representative, or other legal
151representative thereof.
152(6)[(5)] “Division” means the Division of Administrative
153Hearings of the Department of Management Services.
154(7)[(9)] “Family member” means a father, mother, or legal
155guardian.
156(8)[(10)] “Family residential or custodial care” means care
157normally rendered by trained professional attendants which is
158beyond the scope of child care duties, but which is provided by
159family members. Family members who provide nonprofessional
160residential or custodial care may not be compensated under this
161act for care that falls within the scope of child care duties
162and other services normally and gratuitously provided by family
163members. Family residential or custodial care shall be performed
164only at the direction and control of a physician when such care
165is medically necessary. Reasonable charges for expenses for
166family residential or custodial care provided by a family member
167shall be determined as follows:
168(a) If the family member is not employed, the per-hour
169value equals the federal minimum hourly wage.
170(b) If the family member is employed and elects to leave
171that employment to provide such care, the per-hour value of that
172care shall equal the rates established by Medicaid for private
173duty services provided by a home health aide. A family member or
174a combination of family members providing care in accordance
175with this definition may not be compensated for more than a
176total of 10 hours per day. Family care is in lieu of
177professional residential or custodial care, and no professional
178residential or custodial care may be awarded for the period of
179time during the day that family care is being provided.
180(9)[(6)] “Hospital” means any hospital licensed in Florida.
181(10) “Office” means the Office of Insurance Regulation.
182(11) “Participant” means the person who suffered a birth
183related neurological injury as an infant and who accepted
184compensation under the plan by final order entered by an
185administrative law judge pursuant to s. 766.309.
186(12)[(7)] “Participating physician” means a physician
187licensed in Florida to practice medicine who practices
188obstetrics or performs obstetrical services either full time or
189part time and who had paid or was exempted from payment at the
190time of the injury the assessment required for participation in
191the birth-related neurological injury compensation plan for the
192year in which the injury occurred. Such term does [shall] not
193apply to any physician who practices medicine as an officer,
194employee, or agent of the Federal Government.
195(13)[(8)] “Plan” means the Florida Birth-Related Neurological
196Injury Compensation Plan established under s. 766.303.
197(14)“Risk margin” means an additional, explicit allowance
198above the best-estimate reserve to reflect uncertainty in future
199claim payments, including variations in claimant life expectancy
200and the number and cost of pending or unreported claims. The
201risk margin is not included in the reserve amount used to
202calculate the funding ratio.
203Section 3. Section 766.303, Florida Statutes, is amended to
204read:
205766.303 Florida Birth-Related Neurological Injury
206Compensation Plan; exclusiveness of remedy.—
207(1) There is established the Florida Birth-Related
208Neurological Injury Compensation Plan for the purpose of
209providing compensation, irrespective of fault, for birth-related
210neurological injuries [injury claims]. Such plan shall apply to
211births occurring on or after January 1, 1989, and shall be
212administered by the Florida Birth-Related Neurological Injury
213Compensation Association.
214(2) The rights and remedies granted by this plan on account
215of a birth-related neurological injury shall exclude all other
216rights and remedies of such infant, her or his personal
217representative, family members [parents], dependents, and next of
218kin, at common law or otherwise, against any person or entity
219directly involved with the labor, delivery, or immediate
220postdelivery resuscitation during which such injury occurs,
221arising out of or related to a medical negligence claim with
222respect to such injury; except that a civil action may [shall] not
223be foreclosed where there is clear and convincing evidence of
224bad faith or malicious purpose or willful and wanton disregard
225of human rights, safety, or property, provided that such suit is
226filed prior to and in lieu of payment of an award under ss.
227766.301-766.316. Such suit shall be filed before the award of
228the division becomes conclusive and binding as provided for in
229s. 766.311.
230(3) Sovereign immunity is hereby waived on behalf of the
231Florida Birth-Related Neurological Injury Compensation
232Association solely to the extent necessary to assure payment of
233compensation as provided in s. 766.31.
234(4) The association shall administer the plan in a manner
235that promotes and protects the health and best interests of
236participants [children] with birth-related neurological injuries.
237Section 4. Subsections (1) and (3) of section 766.305,
238Florida Statutes, are amended to read:
239766.305 Filing of claims and responses; medical
240disciplinary review.—
241(1) All claims filed [for compensation] under the plan must
242[shall] commence by the claimant filing with the division a
243petition that includes all of [seeking compensation. Such]
244[petition shall include] the following information:
245(a) The name and address of the legal representative and
246the basis for her or his representation of the injured infant.
247(b) The name and address of the injured infant.
248(c) The name and address of any physician providing
249obstetrical services who was present at the birth and the name
250and address of the hospital at which the birth occurred.
251(d) A description of the disability for which the claim is
252made.
253(e) The time and place the injury occurred.
254(f) A brief statement of the facts and circumstances
255surrounding the injury and giving rise to the claim.
256(3) The claimant shall furnish to the [Florida Birth-Related]
257[Neurological Injury Compensation] association the following
258information, which must be filed with the association within 10
259days after the filing of the petition as set forth in subsection
260(1):
261(a) All available relevant medical records relating to the
262birth-related neurological injury and a list identifying any
263unavailable records known to the claimant and the reasons for
264the records’ unavailability.
265(b) Appropriate assessments, evaluations, and prognoses and
266such other records and documents as are reasonably necessary for
267the determination of the amount of compensation to be paid to,
268or on behalf of, the injured infant on account of the birth
269related neurological injury.
270(c) Documentation of expenses and services incurred to date
271which identifies any payment made for such expenses and services
272and the payor.
273(d) Documentation of any applicable private or governmental
274source of services or reimbursement relative to the impairments.
275
276The information required by paragraphs (a)-(d) shall remain
277confidential and exempt under the provisions of s. 766.315(6)(b)
278[s. 766.315(5)(b)].
279Section 5. Paragraph (a) of subsection (1) of section
280766.309, Florida Statutes, is amended to read:
281766.309 Determination of claims; presumption; findings of
282administrative law judge binding on participants.—
283(1) The administrative law judge shall make the following
284determinations based upon all available evidence:
285(a) Whether the injury claimed is a birth-related
286neurological injury. If the claimant has demonstrated, to the
287satisfaction of the administrative law judge, that the infant
288has sustained a brain or spinal cord injury caused by oxygen
289deprivation or mechanical injury and that the infant was thereby
290rendered permanently and substantially mentally and physically
291impaired, a rebuttable presumption shall arise that the injury
292is a birth-related neurological injury as defined in s. 766.302
293[s. 766.302(2)].
294Section 6. Section 766.31, Florida Statutes, is amended to
295read:
296766.31 Administrative law judge awards for birth-related
297neurological injuries; notice of award.—
298(1) Upon determining that an infant has sustained a birth
299related neurological injury and that obstetrical services were
300delivered by a participating physician at the birth, the
301administrative law judge shall make an award providing
302compensation for the following items relative to such injury:
303(a) Actual expenses incurred since the date of birth for
304medically necessary and reasonable:
3051. Medical and hospital care and services;[,]
3062. Habilitative services; [and training,]
3073. Dental services;
3084. Family residential or custodial care;[,]
3095. Professional residential care;[, and]
3106. Professional custodial care; [and service,]
3117. [for medically necessary] Drugs;[,]
3128. Special equipment;[, and facilities,] and
3139. [for] Related travel.
314(b) At a minimum, compensation must be provided for the
315following actual expenses:
3161. Psychotherapeutic services for [A total annual benefit of]
317[up to $10,000 for immediate] family members and other relatives
318who have resided [reside] with the participant, which are [infant]
319[for psychotherapeutic services] obtained from a psychiatrist
320licensed under chapter 458 or chapter 459, a provider [providers]
321licensed under chapter 490 or chapter 491, or a psychiatrist or
322provider who has equivalent licensure by another jurisdiction.
323This benefit for such family members and relatives shall be up
324to a total of $10,000 annually during the participant’s lifetime
325and up to a total of $20,000 subsequent to the participant’s
326death.
3272. For the life of the participant [child], providing family
328members [parents or legal guardians] with a reliable method of
329transporting [transportation for the care of] the participant and
330[child or reimbursing the cost of upgrading an existing vehicle]
331[to accommodate] the participant’s wheelchair and medically
332necessary equipment [child’s needs when it becomes medically]
333[necessary for wheelchair transportation. The mode of]
334[transportation must take into account the special accommodations]
335[required for the specific child]. The plan may not limit such
336transportation assistance based on the participant’s [child’s] age
337or weight. The plan must replace any vehicle [vans] purchased by
338the plan every 7 years or 150,000 miles, whichever comes first.
3393. Housing assistance of up to $100,000 for the life of the
340participant [child], including, but not limited to, a down payment
341on a new home, moving expenses, and home construction and
342modification costs.
3434. Legal costs associated with establishing and maintaining
344guardianship for a participant.
345(c)1. The costs of a health insurance policy or health
346maintenance contract that provides major medical or similar
347comprehensive health insurance coverage for the participant
348obtained pursuant to subsection (3), including, but not limited
349to, the premium and out-of-pocket costs. For participants
350enrolled in the state Medicaid program, the plan must reimburse
351fee-for-service paid claims and capitation payments, as
352applicable, for services provided to such participants pursuant
353to this section and for the administrative and support costs
354associated with the provided medical assistance. Such funds
355shall be credited to the Agency for Health Care Administration’s
356Medical Care Trust Fund.
3572. By December 31, 2026, the plan shall reimburse any
358participant for reasonable, medically necessary care received by
359the participant on or before June 30, 2026, which was reduced or
360not paid by the plan because such participant did not have
361comprehensive or major medical health insurance coverage through
362an insurer or a health maintenance organization.
363(d)[(b)] However, the following expenses are not subject to
364compensation:
3651. Expenses for items or services that the participant
366[infant] has received, or is entitled to receive, under the laws
367of any state or the Federal Government, except to the extent
368such exclusion may be prohibited by federal law.
3692. Expenses for items or services that the participant
370[infant] has received, or is contractually entitled to receive,
371from any prepaid health plan, health maintenance organization,
372or other private insuring entity.
3733. Expenses for which the participant [infant] has received
374reimbursement, or for which the participant [infant] is entitled
375to receive reimbursement, under the laws of any state or the
376Federal Government, except to the extent such exclusion may be
377prohibited by federal law.
3784. Expenses for which the participant [infant] has received
379reimbursement, or for which the participant [infant] is
380contractually entitled to receive reimbursement, pursuant to the
381provisions of any health or sickness insurance policy or other
382private insurance program.
3835. Expenses for family residential or custodial care
384provided by a family member while:
385a. Care and supervision of the participant is
386simultaneously being provided by another person or entity; or
387b. The family member receives compensation from another
388source for work performed during the same time for which
389compensation is sought from the association.
390(e)[(c)] Expenses included under paragraphs [paragraph] (a) and
391(b) are limited to reasonable charges prevailing in the same
392community for similar treatment of injured persons when such
393treatment is paid for by the injured person.
394(f)1. A family member [The parents or legal guardians]
395receiving benefits under the plan may file a petition with the
396division [of Administrative Hearings] to dispute the amount of
397actual expenses reimbursed or a denial of reimbursement.
3982. In the case of an alleged overpayment of an expense
399reimbursement by the association to a family member, if the
400family member does not agree that an overpayment has occurred,
401the association may file a petition for division review of the
402overpayment for a determination of the amount, if any, to be
403recouped by the association.
404(g)1.[(d)1.a.] Periodic payments of an award to the family
405members [parents or legal guardians] of the participant [infant]
406[found to have sustained a birth-related neurological injury],
407which award may not exceed $100,000. However, at the discretion
408of the administrative law judge, such award may be made in a
409lump sum. Beginning on January 1, 2021, the award may not exceed
410$250,000, and each January 1 thereafter, the maximum award
411authorized under this paragraph shall increase by 3 percent.
412[b. Parents or legal guardians who received an award]
413[pursuant to this section before January 1, 2021, must receive a]
414[retroactive payment in an amount sufficient to bring the total]
415[award paid to the parents or legal guardians pursuant to sub]
416[subparagraph a. to $250,000. This additional payment may be made]
417[in a lump sum or in periodic payments as designated by the]
418[parents or legal guardians and must be paid by July 1, 2021.]
4192.[a.] Death benefit for the participant [infant] in an amount
420of $50,000.
421[b. Parents or legal guardians who received an award]
422[pursuant to this section, and whose child died since the]
423[inception of the program, must receive a retroactive payment in]
424[an amount sufficient to bring the total award paid to the]
425[parents or legal guardians pursuant to sub-subparagraph a. to]
426[$50,000. This additional payment may be made in a lump sum or in]
427[periodic payments as designated by the parents or legal]
428[guardians and must be paid by July 1, 2021.]
429(h)[(e)] Reasonable expenses incurred in connection with the
430filing of a claim under ss. 766.301-766.316, including
431reasonable attorney [attorney’s] fees, which shall be subject to
432the approval and award of the administrative law judge. In
433determining an award for attorney [attorney’s] fees, the
434administrative law judge shall consider the following factors:
4351. The time and labor required, the novelty and difficulty
436of the questions involved, and the skill requisite to perform
437the legal services properly.
4382. The fee customarily charged in the locality for similar
439legal services.
4403. The time limitations imposed by the claimant or the
441circumstances.
4424. The nature and length of the professional relationship
443with the claimant.
4445. The experience, reputation, and ability of the lawyer or
445lawyers performing services.
4466. The contingency or certainty of a fee.
447
448If there is [Should there be] a final determination of
449compensability, and the claimants accept an award under this
450section, the claimants are not liable for any expenses,
451including attorney fees, incurred in connection with the filing
452of a claim under ss. 766.301-766.316 other than those expenses
453awarded under this section.
454(2) The award shall require the immediate payment of
455expenses previously incurred and shall require that future
456expenses be paid as incurred.
457(3) A family member must continuously maintain a health
458insurance policy or health maintenance contract that provides
459comprehensive major medical health insurance coverage for the
460participant.
461(a) If the participant does not have such coverage at the
462time of entry of a final order by an administrative law judge
463approving a claim for compensation, the family member must
464obtain coverage within 60 days after entry of such order or
465apply for Medicaid coverage within 30 days after entry of such
466order.
467(b) If the participant is determined to be ineligible for
468Medicaid, the family member must obtain other coverage within 60
469days after receiving the Medicaid application denial.
470(c) A family member of an individual who is a participant
471on June 30, 2026, must obtain the required coverage for the
472participant by January 1, 2027.
473(4)[(3)] A copy of the award shall be sent immediately by
474registered or certified mail to each person served with a copy
475of the petition under s. 766.305(2).
476Section 7. Section 766.314, Florida Statutes, is amended to
477read:
478766.314 Assessments; plan of operation.—
479(1) The assessments established under [pursuant to] this
480section shall be used to finance the Florida Birth-Related
481Neurological Injury Compensation Plan.
482(2) The assessments and appropriations dedicated to the
483plan shall be administered by the Florida Birth-Related
484Neurological Injury Compensation Association established in s.
485766.315, in accordance with the following requirements:
486(a) [On or before July 1, 1988,] The directors of the
487association shall submit to the office [Department of Insurance]
488for review and approval a plan of operation and any amendment
489thereto which shall provide for the efficient administration of
490the plan and for prompt processing of claims against and awards
491made on behalf of the plan.
492(b) The plan of operation must [shall] include provision for:
4931. Establishment of necessary facilities;
4942. Management of the funds collected on behalf of the plan;
4953. Processing of claims against the plan;
4964. Assessment of the persons and entities listed in
497subsections (4) and (7) [(5)] to pay awards and expenses[, which]
498[assessments shall be on an actuarially sound basis subject to]
499[the limits set forth in subsections (4) and (5)];
5005. A fraud and overpayment prevention and detection
501program; and
5026.[5.] Any other matters necessary for the efficient
503operation of the Florida Birth-Related Neurological Injury
504Compensation Plan.
505[(b) Amendments to the plan of operation may be made by the]
506[directors of the plan, subject to the approval of the office] [of]
507[Insurance Regulation of the Financial Services Commission.]
508(3) All assessments shall be deposited with the [Florida]
509[Birth-Related Neurological Injury Compensation] association. The
510funds collected by the association and any income therefrom
511shall be disbursed only for the payment of awards under ss.
512766.301-766.316 and for the payment of the reasonable expenses
513of administering the plan.
514(4) The following persons and entities shall pay into the
515association assessments as follows [an initial assessment in]
516[accordance with the plan of operation]:
517(a)1. [On or before October 1, 1988,] Each hospital licensed
518under chapter 395 shall pay an [initial] assessment of $50 per
519infant delivered in that [the] hospital [during the prior calendar]
520[year], as reported to the Agency for Health Care Administration;
521provided, however, that a hospital owned or operated by the
522state or a county, special taxing district, or other political
523subdivision of the state shall not be required to pay [the]
524[initial assessment or] any assessment required by this subsection
525or subsection (7) [(5)]. The term “infant delivered” includes live
526births and not stillbirths, but the term does not include
527infants delivered by employees or agents of the board of
528trustees of a state university, those born in a teaching
529hospital as defined in s. 408.07, or those born in a teaching
530hospital as defined in s. 395.806 that have been deemed by the
531association as being exempt from assessments since fiscal year
5321997 to fiscal year 2001. The [initial] assessment and any
533assessment imposed pursuant to subsection (7) [(5)] may not
534include any infant born to a charity patient (as defined by rule
535of the Agency for Health Care Administration) or born to a
536patient for whom the hospital receives Medicaid reimbursement,
537if the sum of the annual charges for charity patients plus the
538annual Medicaid contractuals of the hospital exceeds 10 percent
539of the total annual gross operating revenues of the hospital.
540The hospital is responsible for documenting, to the satisfaction
541of the association, the exclusion of any birth from the
542computation of the assessment. Upon demonstration of financial
543need by a hospital, the association may provide for installment
544payments of assessments.
5452. Assessments are due, and hospitals shall pay all
546assessments required under this section, by December 31 of the
547calendar year immediately subsequent to the birth year.
548(b)1.a. [On or before October 15, 1988,] All physicians
549licensed pursuant to chapter 458 or chapter 459 [as of October 1,]
550[1988], other than participating physicians, shall be assessed an
551annual [initial] assessment of $250.[,]
552b. Payment for all assessments required under this
553paragraph is due on or before December 31 of each year [which]
554[must be paid no later than December 1, 1988].
555[2. Any such physician who becomes licensed after September]
556[30, 1988, and before January 1, 1989, shall pay into the]
557[association an initial assessment of $250 upon licensure.]
558[3. Any such physician who becomes licensed on or after]
559[January 1, 1989, shall pay an initial assessment equal to the]
560[most recent assessment made pursuant to this paragraph,]
561[paragraph (5)(a), or paragraph (7)(b).]
5622.[4.] However, if the physician is a physician specified in
563this subparagraph, the assessment is not applicable:
564a. A resident physician, assistant resident physician, or
565intern in an approved postgraduate training program, as defined
566by the Board of Medicine or the Board of Osteopathic Medicine by
567rule;
568b. A retired physician who has withdrawn from the practice
569of medicine but who maintains an active license as evidenced by
570an affidavit filed with the Department of Health. Prior to
571reentering the practice of medicine in this state, a retired
572physician as herein defined must notify the Board of Medicine or
573the Board of Osteopathic Medicine and pay the appropriate
574assessments pursuant to this section;
575c. A physician who holds a limited license pursuant to s.
576458.317 and who is not being compensated for medical services;
577d. A physician who is employed full time by the United
578States Department of Veterans Affairs and whose practice is
579confined to United States Department of Veterans Affairs
580hospitals; or
581e. A physician who is a member of the Armed Forces of the
582United States and who meets the requirements of s. 456.024.
583f. A physician who is employed full time by the State of
584Florida and whose practice is confined to state-owned
585correctional institutions, a county health department, or state
586owned mental health or developmental services facilities, or who
587is employed full time by the Department of Health.
588(c)1. [On or before December 1, 1988,] Each physician
589licensed pursuant to chapter 458 or chapter 459 who wishes to
590participate in the Florida Birth-Related Neurological Injury
591Compensation Plan and who otherwise qualifies as a participating
592physician under ss. 766.301-766.316 shall pay an annual [initial]
593assessment of $5,000 and any assessment required under paragraph
594(7)(c), if assessed. However, if the physician is either a
595resident physician, assistant resident physician, or intern in
596an approved postgraduate training program, as defined by the
597Board of Medicine or the Board of Osteopathic Medicine by rule,
598and is supervised in accordance with program requirements
599established by the Accreditation Council for Graduate Medical
600Education or the American Osteopathic Association by a physician
601who is participating in the plan, such resident physician,
602assistant resident physician, or intern is deemed to be a
603participating physician without the payment of the assessment.
604Participating physicians also include any employee of the board
605of trustees of a state university who has paid the assessment
606required by this paragraph and, if assessed, paragraph (7)(c)
607[(5)(a)], and any certified nurse midwife supervised by such
608employee. Participating physicians include any certified nurse
609midwife who has paid 50 percent of the physician assessment
610required by this paragraph and, if assessed, paragraph (7)(c),
611[(5)(a)] and who is supervised by a participating physician who
612has paid the assessment required by this paragraph and, if
613assessed, paragraph (7)(c) [(5)(a)]. Supervision for nurse
614midwives shall require that the supervising physician will be
615easily available and have a prearranged plan of treatment for
616specified patient problems which the supervised certified nurse
617midwife may carry out in the absence of any complicating
618features. [Any physician who elects to participate in such plan]
619[on or after January 1, 1989, who was not a participating]
620[physician at the time of such election to participate and who]
621[otherwise qualifies as a participating physician under ss.]
622[766.301-766.316 shall pay an additional initial assessment equal]
623[to the most recent assessment made pursuant to this paragraph,]
624[paragraph (5)(a), or paragraph (7)(b).]
6252. Payment of assessments required by this paragraph is due
626on or before December 31 of each year for qualification as a
627participating physician during the next calendar year. If
628payment of the assessments is received by the association on or
629before January 31 of any calendar year, the physician shall
630qualify as a participating physician for that entire calendar
631year. If the payment is received after January 31, the physician
632shall qualify as a participating physician for that calendar
633year only from the date the payment was received by the
634association.
635(d) Any hospital located in a county with a population in
636excess of 1.1 million as of January 1, 2003, as determined by
637the Agency for Health Care Administration under the Health Care
638Responsibility Act, may elect to pay the assessments required by
639paragraph (c) [fee] for the participating physician and the
640certified nurse midwife if the hospital first determines that
641the primary motivating purpose for making such payment is to
642ensure coverage for the hospital’s patients under the provisions
643of ss. 766.301-766.316; however, no hospital may restrict any
644participating physician or nurse midwife, directly or
645indirectly, from being on the staff of hospitals other than the
646staff of the hospital making the payment. [Each hospital shall]
647[file with the association an affidavit setting forth]
648[specifically the reasons why the hospital elected to make the]
649[payment on behalf of each participating physician and certified]
650[nurse midwife. The payments authorized under this paragraph]
651[shall be in addition to the assessment set forth in paragraph]
652[(5)(a).]
653[(5)(a) Beginning January 1, 1990, the persons and entities]
654[listed in paragraphs (4)(b) and (c), except those persons or]
655[entities who are specifically excluded from said provisions, as]
656[of the date determined in accordance with the plan of operation,]
657[taking into account persons licensed subsequent to the payment]
658[of the initial assessment, shall pay an annual assessment in the]
659[amount equal to the initial assessments provided in paragraphs]
660[(4)(b) and (c). If payment of the annual assessment by a]
661[physician is received by the association by January 31 of any]
662[calendar year, the physician shall qualify as a participating]
663[physician for that entire calendar year. If the payment is]
664[received after January 31 of any calendar year, the physician]
665[shall qualify as a participating physician for that calendar]
666[year only from the date the payment was received by the]
667[association. On January 1, 1991, and on each January 1]
668[thereafter, the association shall determine the amount of]
669[additional assessments necessary pursuant to subsection (7), in]
670[the manner required by the plan of operation, subject to any]
671[increase determined to be necessary by the Office of Insurance]
672[Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on]
673[each July 1 thereafter, the persons and entities listed in]
674[paragraphs (4)(b) and (c), except those persons or entities who]
675[are specifically excluded from said provisions, shall pay the]
676[additional assessments which were determined on January 1.]
677[Beginning January 1, 1990, the entities listed in paragraph]
678[(4)(a), including those licensed on or after October 1, 1988,]
679[shall pay an annual assessment of $50 per infant delivered]
680[during the prior calendar year. The additional assessments which]
681[were determined on January 1, 1991, pursuant to the provisions]
682[of subsection (7) shall not be due and payable by the entities]
683[listed in paragraph (4)(a) until July 1.]
684[(b) If the assessments collected pursuant to subsection (4)]
685[and the appropriation of funds provided by s. 76, chapter 88-1,]
686[Laws of Florida, as amended by s. 41, chapter 88-277, Laws of]
687[Florida, to the plan from the Insurance Regulatory Trust Fund]
688[are insufficient to maintain the plan on an actuarially sound]
689[basis, there is hereby appropriated for transfer to the]
690[association from the Insurance Regulatory Trust Fund an]
691[additional amount of up to $20 million.]
692[(c)1. Taking into account the assessments collected]
693[pursuant to subsection (4) and appropriations from the Insurance]
694[Regulatory Trust Fund, if required to maintain the plan on an]
695[actuarially sound basis, the Office of Insurance Regulation]
696[shall require each entity licensed to issue casualty insurance]
697[as defined in s. 624.605(1)(b), (k), and (q) to pay into the]
698[association an annual assessment in an amount determined by the]
699[office pursuant to paragraph (7)(a), in the manner required by]
700[the plan of operation.]
701[2. All annual assessments shall be made on the basis of net]
702[direct premiums written for the business activity which forms]
703[the basis for each such entity’s inclusion as a funding source]
704[for the plan in the state during the prior year ending December]
705[31, as reported to the Office of Insurance Regulation, and shall]
706[be in the proportion that the net direct premiums written by]
707[each carrier on account of the business activity forming the]
708[basis for its inclusion in the plan bears to the aggregate net]
709[direct premiums for all such business activity written in this]
710[state by all such entities.]
711[3. No entity listed in this paragraph shall be individually]
712[liable for an annual assessment in excess of 0.25 percent of]
713[that entity’s net direct premiums written.]
714[4. Casualty insurance carriers shall be entitled to recover]
715[their initial and annual assessments through a surcharge on]
716[future policies, a rate increase applicable prospectively, or a]
717[combination of the two.]
718(5)[(6)](a) The association shall make all assessments
719required by this section, except initial assessments of
720physicians newly licensed by the Department of Health, which
721assessments will be made by the Department of Health, and except
722assessments of casualty insurers pursuant to paragraph (7)(c)
723[subparagraph (5)(c)1.], which assessments will be made by the
724office [of Insurance Regulation]. The Department of Health shall
725provide the association, in an electronic format, with a monthly
726report of the names and license numbers of all physicians
727licensed under chapter 458 or chapter 459.
728(b)1. The association may enforce collection of assessments
729required to be paid pursuant to ss. 766.301-766.316 by suit
730filed in county court, or in circuit court if the amount due
731could exceed the jurisdictional limits of county court. The
732association is entitled to an award of attorney fees, costs, and
733interest upon the entry of a judgment against a physician for
734failure to pay such assessment, with such interest accruing
735until paid. Notwithstanding chapters 47 and 48, the association
736may file such suit in either Leon County or the county of the
737residence of the defendant. The association shall notify the
738Department of Health and the applicable board of any unpaid
739final judgment against a physician within 7 days after the entry
740of final judgment.
7412. The Department of Health, upon notification by the
742association that an assessment has not been paid and that there
743is an unsatisfied judgment against a physician, shall refuse to
744renew any license issued to such physician under chapter 458 or
745chapter 459 until the association notifies the Department of
746Health that the judgment is satisfied in full.
747(c) The Agency for Health Care Administration shall, upon
748notification by the association that an assessment has not been
749timely paid, enforce collection of such assessments required to
750be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
751a hospital to pay such assessment is grounds for disciplinary
752action pursuant to s. 395.1065 notwithstanding any law to the
753contrary.
754(6)[(9)](a) Within 60 days after a claim is filed, the
755association shall estimate the present value of the total cost
756of the claim, including the estimated amount to be paid to the
757claimant, the claimant’s attorney, the attorney’s fees of the
758association incident to the claim, and any other expenses that
759are reasonably anticipated to be incurred by the association in
760connection with the adjudication and payment of the claim. For
761purposes of this estimate, the association should include the
762maximum benefits for noneconomic damages.
763(b) The association shall revise these estimates quarterly
764based upon the actual costs incurred and any additional
765information that becomes available to the association since the
766last review of this estimate. The estimate shall be reduced by
767any amounts paid by the association that were included in the
768current estimate. The association must submit such quarterly
769estimates to the office within 15 business days after
770completion.
771(c) After the revisions of estimates required under
772paragraph (b), each quarter, the association shall calculate
773whether the plan is actuarially sound. If the association’s
774calculation indicates that the plan is not actuarially sound,
775the association shall immediately notify the office as described
776in subsection (7). The office must review the association’s
777calculations and, within 60 days after the association’s
778notification, determine whether to initiate an actuarial
779valuation as described in subsection (7), and notify the
780association of its determination. At a minimum, the office shall
781make its determination based on the degree to which the
782association’s calculations indicate that the plan is not
783actuarially sound, the direction and consistency of recent
784trends in the calculations of the plan’s actuarial soundness,
785and the length of time since the most recent actuarial valuation
786conducted by the office and until the next biennial valuation.
787The office shall initiate such actuarial valuation within 30
788days after its determination that there is a need for a
789valuation.
790[1. If the total of all current estimates equals or exceeds]
791[100 percent of the funds on hand and the funds that will become]
792[available to the association within the next 12 months from all]
793[sources described in subsection (4) and paragraph (5)(a), the]
794[association may not accept any new claims without express]
795[authority from the Legislature. This section does not preclude]
796[the association from accepting any claim if the injury occurred]
797[18 months or more before the effective date of this suspension.]
798[Within 30 days after the effective date of this suspension, the]
799[association shall notify the Governor, the Speaker of the House]
800[of Representatives, the President of the Senate, the Office of]
801[Insurance Regulation, the Agency for Health Care Administration,]
802[and the Department of Health of this suspension.]
803[2. Notwithstanding this paragraph, the association is]
804[authorized to accept new claims during the 2025-2026 fiscal year]
805[if the total of all current estimates exceeds the limits]
806[described in subparagraph 1. during that fiscal year. This]
807[subparagraph expires July 1, 2026.]
808[(d) If any person is precluded from asserting a claim]
809[against the association because of paragraph (c), the plan shall]
810[not constitute the exclusive remedy for such person, his or her]
811[personal representative, parents, dependents, or next][ of kin.]
812(7)(a) The office [of Insurance Regulation shall undertake]
813[an actuarial investigation of the requirements of the plan based]
814[on the plan’s experience in the first year of operation and any]
815[additional relevant information, including without limitation]
816[the assets and liabilities of the plan. Pursuant to such]
817[investigation, the Office of Insurance Regulation shall]
818[establish the rate of contribution of the entities listed in]
819[paragraph (5)(c) for the tax year beginning January 1, 1990.]
820[Following the initial valuation, the Office of Insurance]
821[Regulation] shall cause an actuarial valuation to be made of the
822assets and liabilities of the plan at a minimum [no less]
823[frequently than] biennially on or before December 31 of even
824numbered years and as provided in subsection (6). Such valuation
825shall be based on the assets and liabilities of the plan for the
826calendar year before the year in which the actuarial valuation
827is due. The office shall also determine whether the plan has
828adequate estimated cash flow for the following fiscal year,
829whether, based on the actuarial valuation, the plan is
830actuarially sound, and if not, whether the plan is likely to
831return to actuarial soundness before the next biennial review.
832[Pursuant to the results of such valuations, the Office of]
833[Insurance Regulation shall prepare a statement as to the]
834[contribution rate applicable to the entities listed in paragraph]
835[(5)(c). However, at no time shall the rate be greater than 0.25]
836[percent of net direct premiums written.]
837(b) If the office determines that the plan lacks adequate
838cash flow for the following fiscal year pursuant to the review
839in paragraph (a), the office shall authorize transfers from the
840Insurance Regulatory Trust Fund to the association within 30
841calendar days. Cumulative transfers authorized under this
842paragraph may not exceed $20 million over the life of the plan.
843(c)[(b)] If the office [of Insurance Regulation] finds that the
844plan is not likely to return to actuarial soundness before the
845next biennial review pursuant to the review in paragraph (a),
846the office shall, within 60 calendar days after this finding,
847order one or more of the following actions:
8481.Require each entity licensed to issue casualty insurance
849as defined in s. 624.605(1)(b), (k), and (q) to pay into the
850association an annual assessment that is calculated to generate
851a total amount no greater than the amount required to achieve
852actuarial soundness of the plan within 5 years after the date of
853the order, subject to the limitations of this subparagraph.
854a.Such assessments shall be made on the basis of net
855direct premiums written for the business activity which forms
856the basis for each such entity’s inclusion as a funding source
857for the plan in the state during the prior year ending December
85831, as reported to the office, and shall be in the proportion
859that the net direct premiums written by each carrier on account
860of the business activity forming the basis for its inclusion in
861the plan bears to the aggregate net direct premiums for all such
862business activity written in this state by all such entities.
863b.No entity shall be individually liable for an annual
864assessment in excess of 0.25 percent of that entity’s net direct
865premiums written.
866c.Casualty insurance carriers shall be entitled to recover
867their assessments through a surcharge on future policies, a rate
868increase applicable prospectively, or a combination of the two.
869d.An assessment under this subparagraph must not extend 5
870years after the date of the order.
8712.If actuarial soundness cannot be achieved after using
872the remedy in subparagraph 1., increase the assessments
873specified in subsection (4) on a proportional basis that is
874calculated to generate a total amount no greater than the amount
875required to maintain the plan on an actuarially sound basis.
876(d)If the office finds that the plan is not actuarially
877sound pursuant to the review in paragraph (a), the plan shall
878provide the office with quarterly reports projecting the plan’s
879financial condition and, if assessments were ordered by the
880office under this subsection, projected revenues for such
881assessments.
882(e)If the office finds that the plan is not actuarially
883sound and the remedies provided under this subsection are
884insufficient to reestablish the actuarial soundness of the plan,
885the association shall, within 5 days after such finding, notify
886the Governor, the President of the Senate, the Speaker of the
887House of Representatives, and the office. If the notice is
888issued, the association may not accept any new claims without
889express authority from the Legislature. This paragraph does not
890preclude the association from accepting any claim if the injury
891occurred 18 months or more before the effective date of this
892suspension.
893(f) If any person is precluded from asserting a claim
894against the association because of paragraph (e), the plan shall
895not constitute the exclusive remedy for such person, his or her
896personal representative, parents, dependents, or next of kin
897[cannot be maintained on an actuarially sound basis based on the]
898[assessments and appropriations listed in subsections (4) and]
899[(5), the office shall increase the assessments specified in]
900[subsection (4) on a proportional basis as needed].
901[(8) The association shall report to the Legislature its]
902[determination as to the annual cost of maintaining the fund on]
903[an actuarially sound basis. In making its determination, the]
904[association shall consider the recommendations of all hospitals,]
905[physicians, casualty insurers, attorneys, consumers, and any]
906[associations representing any such person or entity.]
907[Notwithstanding the provisions of s. 395.3025, all hospitals,]
908[casualty insurers, departments, boards, commissions, and]
909[legislative committees shall provide the association with all]
910[relevant records and information upon request to assist the]
911[association in making its determination. All hospitals shall,]
912[upon request by the association, provide the association with]
913[information from their records regarding any live birth. Such]
914[information shall not include the name of any physician, the]
915[name of any hospital employee or agent, the name of the patient,]
916[or any other information which will identify the infant involved]
917[in the birth. Such information thereby obtained shall be]
918[utilized solely for the purpose of assisting the association and]
919[shall not subject the hospital to any civil or criminal]
920[liability for the release thereof. Such information shall]
921[otherwise be confidential and exempt from the provisions of s.]
922[119.07(1) and s. 24(a), Art. I of the State Constitutio][n.]
923Section 8. Present subsections (5) through (8) of section
924766.315, Florida Statutes, are redesignated as subsections (6)
925through (9), respectively, a new subsection (5) is added to that
926section, and subsection (1), paragraph (e) of present subsection
927(5), and present subsections (7) and (8) of that section are
928amended, to read:
929766.315 Florida Birth-Related Neurological Injury
930Compensation Association; board of directors; notice of
931meetings; report.—
932(1)(a) The Florida Birth-Related Neurological Injury
933Compensation Plan shall be governed by a board of seven
934directors which shall be known as the Florida Birth-Related
935Neurological Injury Compensation Association. The association is
936not a state agency, board, or commission. Notwithstanding the
937provision of s. 15.03, the association is authorized to use the
938state seal.
939(b) The directors shall be appointed for staggered terms of
9403 years or until their successors are appointed and have
941qualified; however, a director may not serve for more than 6
942consecutive years.
943(c) The directors shall be appointed by the Chief Financial
944Officer as follows:
9451. One citizen representative who is not affiliated with
946any of the groups identified in subparagraphs 2.-7.
9472. One representative of participating physicians.
9483. One representative of hospitals.
9494. One representative of casualty insurers.
9505. One representative of physicians other than
951participating physicians.
9526. One family member of a participant [parent or legal]
953[guardian representative of an injured infant under the plan].
9547. One representative of an advocacy organization for
955children with disabilities.
956(5) Notwithstanding this section, the board of directors
957may not create new benefits or expand existing benefits that
958result in additional costs to the plan if the plan is operating
959at an annual cash flow deficit, as documented in the plan’s
960audited financial statements for the prior fiscal year. This
961subsection does not prohibit the plan from providing benefits
962set forth in s. 766.31.
963(6)[(5)]
964(e) Annually, the association shall furnish audited
965financial reports to any plan participant upon request, to the
966office [of Insurance Regulation of the Financial Services]
967[Commission], and to the Joint Legislative Auditing Committee. The
968reports must be prepared in accordance with generally accepted
969auditing standards [accounting procedures] and must include such
970information as may be required by the office [of Insurance]
971[Regulation] or the Joint Legislative Auditing Committee. At any
972time determined to be necessary, the office [of Insurance]
973[Regulation] or the Joint Legislative Auditing Committee may
974conduct an audit of the plan.
975(8)[(7)] The association shall publish a report on its
976website by January 1 of each year. The report must [shall] include
977all of the following:
978(a) The names and terms of each board member and executive
979staff member.
980(b) The amount of compensation paid to each association
981employee or independent contractor.
982(c) A summary of reimbursement disputes and resolutions.
983(d) A list of expenditures for attorney fees and lobbying
984fees.
985(e) Other expenses to oppose each plan claim. Any personal
986identifying information of the parent, legal guardian, or child
987involved in the claim must be removed from this list.
988(9)[(8)] By November 1 of each year, the association shall
989submit a report to the Governor, the President of the Senate,
990the Speaker of the House of Representatives, and the Chief
991Financial Officer. The report must include all of the following:
992(a) The number of petitions filed for compensation with the
993division, the number of claimants awarded compensation, the
994number of claimants denied compensation, and the reasons for the
995denial of compensation.
996(b) The number and dollar amount of paid and denied
997compensation for expenses by category and the reasons for any
998denied compensation for expenses by category.
999(c) The average turnaround time for paying or denying
 1000  compensation for expenses.
 1001  (d) Legislative recommendations to improve the program,
 1002  including to create new benefits or expand current benefits for
 1003  participants. Recommendations creating new benefits or expanding
 1004  current benefits must include estimates of the costs to the plan
 1005  for providing such benefits on an annual basis.
 1006  (e) A summary of any pending or resolved litigation during
 1007  the year which affects the plan.
 1008  (f) The amount of compensation paid to each association
 1009  employee, independent contractor, or member of the board of
 1010  directors.
 1011  Section 9. This act shall take effect upon becoming a law.