SB 1786 — Florida Birth-Related Neurological Injury Compensation Plan

766.3145, F.S.;

requiring association employees to annually sign and submit a conflict-of-interest statement as a condition of employment;

requiring prospective employees to sign and submit such statement as a condition of employment;

providing that the executive director, the ombudsman, senior managers, and the board of directors are subject to specified provisions;

prohibiting board members from voting on measures under certain circumstances;

providing procedures and requirements for board members who have a conflict of interest;

requiring the executive director, senior managers, and board members to file certain disclosures;

requiring the executive director or his or her designee to notify specified individuals of the reporting requirements;

requiring the executive director or his or her designee to submit, at least quarterly, a list of specified individuals to the Commission on Ethics;

prohibiting employees and board members from accepting gifts or expenditures from certain individuals;

providing penalties;

prohibiting certain senior managers and executive directors from representing persons or entities before the association for a specified timeframe;

amending s.

766.315, F.S.;

revising membership of the plan’s board of directors;

prohibiting certain appointed directors from voting on board matters relating to a claim if they were named in the petition for the claim;

requiring the board of directors to employ an ombudsman for a specified purpose;

providing duties of the ombudsman;

requiring the association to submit an annual report to the Governor and the Legislature by a specified date;

providing requirements for the report;

requiring that the first report include a certain actuarial report;

providing requirements for the actuarial report;

requiring the Auditor General to conduct a performance audit of the association and plan;

providing requirements for the audit;

requiring the Auditor General to release the audit by a specified date;

providing for future repeal;

providing applicability;

10812 Be It Enacted by the Legislature of the State of Florida:

11014 Section 1. Subsection1. Paragraph (2)(b) of subsection (1) of section 766.301,766.31, Florida Statutes, is amended to read:

766.301 Legislative findings and intent.— (2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.

This plan shall apply only to birth-related neurological injuries and is not intended to serve as the payor of last resort for claims arising out of such injuries.

It is not the intent of the Legislature to shield physicians who engage in willful misconduct, gross negligence, or recklessness or to preclude individuals from filing legitimate claims of medical malpractice against such physicians.

Section 2. Subsection (4) is added to section 766.303, Florida Statutes, to read:

766.303 Florida Birth-Related Neurological Injury Compensation Plan;

exclusiveness of remedy.— (4) The Florida Birth-Related Neurological Injury Compensation Association shall administer the plan in a manner that promotes and protects the health and best interests of children with birth-related neurological injuries who have been accepted into the plan, and the association shall strive to ensure that all of their medically reasonable needs are being met.

Section 3. Subsection (5) of section 766.305, Florida Statutes, is amended to read:

766.305 Filing of claims and responses;

medical disciplinary review.— (5) Upon receipt of such petition, the Division of Medical Quality Assurance shall review the information therein and determine whether it involved conduct by a physician licensed under chapter 458 or an osteopathic physician licensed under chapter 459 which that is subject to disciplinary action.

If a physician is involved in more than one filed claim, the division also must review the circumstances of all such claims together to determine whether the physician’s conduct establishes a pattern of practice subject to disciplinary action.

Section 456.073 applies in such cases, in which case the provisions of s.

456.073 shall apply.

Section 4. Subsections (1) and (2) of section 766.31, Florida Statutes, are amended to read:

(a) Actual(b)1. Periodic expensespayments forof medicallyan necessaryaward andto reasonablethe medicalparents and hospital, habilitative and training, family residential or custodiallegal care,guardians professionalof residential,the andinfant custodialfound careto andhave service,sustained fora medicallybirth-related necessaryneurological drugs,injury, specialwhich equipment,award andmay facilities,shall andnot forexceed related$100,000. travel.

At a minimum, compensation must be provided for the following actual expenses:

1. Diapers and baby formula for the infant from the time of birth and pureed baby food or other baby food for the infant at the appropriate age or developmental stage.

2. A total annual benefit of up to $5,000 for immediate family members who reside with the infant for psychotherapeutic services obtained from providers licensed under chapter 490 or chapter 491.

3. Transportation reimbursement for all necessary trips to the pharmacy each month for prescription fills for the infant.

(b) However, the following expenses are not subject to compensation such expenses shall not include:

1. Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

2. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity.

3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law.

4. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program.

(c) Expenses included under this paragraph (a) may not exceed shall be limited to reasonable charges prevailing in the same community for similar treatment of injured persons when such treatment is paid for by the injured person.

(d)1.a.(b)1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award may shall not exceed $100,000.

Beginning on January 1, 2021, the award may not exceed $250,000, and each January 1 thereafter the maximum award authorized under this paragraph shall increase by 3 percent.

b. Parents or legal guardians who received an award pursuant to this section before January 1, 2021, and whose child currently receives benefits under the plan must receive a retroactive payment in an amount sufficient to bring the total award paid to the parents or legal guardians pursuant to sub subparagraph a.

to $250,000.

This additional payment may be made in a lump sum or in periodic payments as designated by the parents or legal guardians.

(e)(c) ReasonableSection expenses2. The incurredamendments inmade connectionto withs. the filing of a claim under ss.

766.301-766.316,766.31, includingFlorida reasonableStatutes, attorneyby attorney’sthis fees,act whichapply are shall be subject to theclaims approvalfiled andunder awards. of the administrative law judge.

In766.305, determiningFlorida anStatutes, awardon foror attorneyafter attorney’sJanuary fees,1, the2021. administrative law judge shall consider the following factors:

1. TheSection time3. This andact laborshall required,take theeffect noveltyJuly and1, difficulty2021. of the questions involved, and the skill requisite to perform the legal services properly.

2. The fee customarily charged in the locality for similar legal services.

3. The time limitations imposed by the claimant or the circumstances.

4. The nature and length of the professional relationship with the claimant.

5. The experience, reputation, and ability of the lawyer or lawyers performing services.

6. The contingency or certainty of a fee.

236 Should there be a final determination of compensability, and the claimants accept an award under this section, the claimants are shall not be liable for any expenses, including attorney attorney’s fees, incurred in connection with the filing of a claim under ss.

766.301-766.316 other than those expenses awarded under this section.

(2) The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.

(a) Within 20 days after the receipt of a request for payment of expenses, the plan must pay the expenses or notify the parents or legal guardians, or their designee, that specific additional information or documentation is needed to evaluate the request or that the request for payment of the expenses is being denied.

(b) Parents or legal guardians, or their designee, must submit any additional information or documentation requested by the plan within 35 days after receipt of the notification by the plan that additional information or documentation is needed.

Additional information is considered submitted on the date it is mailed or electronically submitted to the plan.

(c) A request for payment of expenses must be paid or denied within 90 days after receipt of the request.

Failure to pay or deny the claim within 120 days after receipt of the request creates an uncontestable obligation to pay the expenses.

Section 5. Section 766.313, Florida Statutes, is amended to read:

766.313 Limitation on claim.—Any claim for compensation under ss.

766.301-766.316 which that is filed more than 8 5 years after the birth of an infant alleged to have a birth related neurological injury is shall be barred.

Section 6. Section 766.3135, Florida Statutes, is created to read:

766.3135 Plan services.— (1) Pursuant to an award under s.

766.31(1), the association is responsible for reimbursement of actual expenses for medically necessary and reasonable services for a child under the plan.

The plan is not intended to serve as the payor of last resort and the association may not hold itself out as such.

(a) The association must reimburse the parents or legal guardians of a child under the plan for any service, drug, equipment, or treatment at a reasonable rate if they submit a letter of medical necessity from the child’s physician or other treating health care provider for such service, drug, equipment, or treatment.

(b) The association may establish an independent review process that uses medical experts to review such requests after reimbursement to determine whether the physician’s or health care provider’s determination of medical necessity was reasonable.

If the review finds that such determination was not reasonable, the association may ask the parents or legal guardians to provide a letter of medical necessity from a second health care provider.

If such letter is provided, the association may not take further action.

If the parents or legal guardians are unable to provide a second letter, the association may debit the reimbursement from future reimbursements.

(c) For experimental treatments, therapies, or programs, the parents or legal guardians of the child must submit a report of medical necessity from the physician or other health care provider which details the medical necessity for the experimental treatment, therapy, or program and provides proof that it has shown objective, observable, and demonstrable medical benefits to other patients similarly situated to the child under the plan.

The association may use its review process established under paragraph (b) to conclude whether the report reasonably supports the determination of medical necessity.

If the review finds that such determination is not reasonable, the association may require the parents or legal guardians to provide a second report from a different health care provider.

If such report is provided, the association must reimburse the parents or legal guardians for the experimental treatment, therapy, or program, as applicable.

If the parents or legal guardians are unable to provide a second report, the association is not required to provide reimbursement.

(2) Parents or legal guardians of a child under the plan are eligible for reimbursement of expenses for any of the following, at a minimum:

(a) Medical, dental, and hospital care;

habilitative services and training;

mental health services;

music or art therapy;

family residential or custodial care;

and professional residential and custodial care and services.

Reimbursement for private nursing services or attendant care under this paragraph must be provided at a rate at least equal to the state or federal minimum wage, whichever is greater, and must be reimbursed at the same rate regardless of the setting in which the services or care is provided.

(b) Medically necessary drugs, special equipment, and facilities.

(c) Family support services for immediate family members living with the child, including, but not limited to, mental health services.

(d) Travel expenses related to the child’s care.

The association may not limit the amount or type of travel which may be reimbursed or differentiate reimbursement rates based on the purpose of such travel, provided that it is related to the child’s care.

(e) Entertainment and other promotion of the child’s mental and emotional well-being.

The parents or legal guardians of the child are entitled to a reimbursement of at least $1,500 per year under this paragraph.

(f) Nutrition and hygiene needs of the child.

The association may not limit reimbursement for diapers, baby food, or formula if such items are appropriate for the child’s age or developmental stage.

(3) The association is also responsible for the following:

(a) Providing ongoing transportation assistance for the life of the child.

The association must provide parents or legal guardians with a reliable method of transportation for the care of the child or reimburse the cost of upgrading an existing vehicle to accommodate the child’s needs.

The mode of transportation must take into account the special accommodations required for the specific child.

The association may not limit such transportation assistance based on the child’s age or weight.

(b) Providing ongoing housing assistance for the life of the child.

Such assistance includes, but is not limited to:

1. Payment assistance for rent and utilities to cover the cost of any increase due to the accommodation of the child’s condition and medical needs.

2. Reimbursement of moving costs.

3. Payment assistance for home construction costs up to $100,000.

(c) Establishing an online network portal for parents and legal guardians of children under the plan to support one another and exchange information and resources.

Access to the online network must be provided at no cost to parents and legal guardians.

Section 7. Paragraph (a) of subsection (5) of section 766.314, Florida Statutes, is amended to read:

766.314 Assessments;

plan of operation.— (5)(a) Beginning January 1, 1990, the persons and entities listed in paragraphs (4)(b) and (c), except those persons or entities who are specifically excluded from said provisions, as of the date determined in accordance with the plan of operation, taking into account persons licensed subsequent to the payment of the initial assessment, shall pay an annual assessment in the amount equal to the initial assessments provided in paragraphs (4)(b) and (c).

If payment of the annual assessment by a physician is received by the association by January 31 of any calendar year, the physician shall qualify as a participating physician for that entire calendar year.

If the payment is received after January 31 of any calendar year, the physician shall qualify as a participating physician for that calendar year only from the date the payment was received by the association.

Beginning on January 1, 2022, and on each January 1 thereafter, the annual assessment shall increase by 3 percent.

On January 1, 1991, and on each January 1 thereafter, the association shall determine the amount of additional assessments necessary pursuant to subsection (7), in the manner required by the plan of operation, subject to any increase determined to be necessary by the Office of Insurance Regulation pursuant to paragraph (7)(b).

On July 1, 1991, and on each July 1 thereafter, the persons and entities listed in paragraphs (4)(b) and (c), except those persons or entities who are specifically excluded from said provisions, shall pay the additional assessments which were determined on January 1.

Beginning January 1, 1990, the entities listed in paragraph (4)(a), including those licensed on or after October 1, 1988, shall pay an annual assessment of $50 per infant delivered during the prior calendar year.

The additional assessments which were determined on January 1, 1991, pursuant to the provisions of subsection (7) are shall not be due and payable by the entities listed in paragraph (4)(a) until July 1.

Section 8. Section 766.3145, Florida Statutes, is created to read:

766.3145 Code of ethics.— (1) On or before July 1 of each year, employees of the association must sign and submit a statement attesting that they do not have a conflict of interest as defined in part III of chapter 112.

As a condition of employment, all prospective employees must sign and submit to the association a conflict-of interest statement.

(2) The executive director, the ombudsman, senior managers, and members of the board of directors are subject to part III of chapter 112, including, but not limited to, the code of ethics and the public disclosure and reporting of financial interests requirements of s.

112.3145.

For purposes of applying part III of chapter 112 to activities of the executive director, senior managers, and members of the board of directors, those persons are considered public officers or employees and the association is considered their agency.

A board member may not vote on any measure that would inure to his or her special private gain or loss and, notwithstanding s.

112.3143(2), may not vote on any measure that he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s.

112.312;

or that he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer.

Before the vote is taken, such member shall publicly state to the board the nature of his or her interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

The executive director, senior managers, and board members are also required to file such disclosures with the Commission on Ethics and the Office of Insurance Regulation.

The executive director of the association or his or her designee shall notify each existing and newly appointed member of the board of directors and senior managers of his or her duty to comply with the reporting requirements of part III of chapter 112.

At least quarterly, the executive director or his or her designee shall submit to the Commission on Ethics a list of names of the members of the board of directors and senior managers who are subject to the public disclosure requirements under s.

112.3145.

(3) Notwithstanding s.

112.3148, s.

112.3149, or any other law, an employee or board member may not knowingly accept, directly or indirectly, any gift or expenditure from a person or entity, or an employee or representative of such person or entity, which has a contractual relationship with the association or which is under consideration for a contract.

(4) An employee or board member who fails to comply with subsection (2) or subsection (3) is subject to penalties provided under ss.

112.317 and 112.3173.

(5) Any senior manager or executive director of the association who is employed on or after January 1, 2022, regardless of the date of hire, who subsequently retires or terminates employment is prohibited from representing another person or entity before the association for 2 years after retirement or termination of employment from the association.

Section 9. Paragraphs (a) and (c) of subsection (1), paragraph (a) of subsection (2), and paragraph (i) of subsection (4) of section 766.315, Florida Statutes, are amended, and subsection (6) is added to that section, to read:

766.315 Florida Birth-Related Neurological Injury Compensation Association;

board of directors.— (1)(a) The Florida Birth-Related Neurological Injury Compensation Plan shall be governed by a board of seven five directors which shall be known as the Florida Birth-Related Neurological Injury Compensation Association.

The association is not a state agency, board, or commission.

Notwithstanding the provision of s.

15.03, the association is authorized to use the state seal.

(c) The Chief Financial Officer shall appoint the directors, ensuring that at least one board member is a woman, shall be appointed by the Chief Financial Officer as follows:

1. One citizen representative.

2. One representative of participating physicians.

3. One representative of hospitals.

4. One representative of casualty insurers.

5. One representative of physicians other than participating physicians.

6. One parent or legal guardian representative of an injured infant under the plan.

7. One representative of an advocacy organization for children with disabilities.

(2)(a) The Chief Financial Officer may select the representative of the participating physicians from a list of at least three names recommended by the American Congress of Obstetricians and Gynecologists, District XII;

the representative of hospitals from a list of at least three names recommended by the Florida Hospital Association;

the representative of casualty insurers from a list of at least three names, one of which is recommended by the American Insurance Association, one of which is recommended by the Florida Insurance Council, and one of which is recommended by the Property Casualty Insurers Association of America;

and the representative of physicians, other than participating physicians, from a list of three names recommended by the Florida Medical Association and a list of three names recommended by the Florida Osteopathic Medical Association.

However, the Chief Financial Officer is not required to make an appointment from among the nominees of the respective associations.

A participating physician who is named in a pending petition for a claim may not be appointed to the board.

An appointed director who is a participating physician may not vote on any board matter relating to a claim accepted for an award for compensation if the physician was named in the petition for the claim.

(4) The board of directors shall have the power to:

(i) Employ or retain such persons as are necessary to perform the administrative and financial transactions and responsibilities of the plan and to perform other necessary and proper functions not prohibited by law.

1. The board of directors shall employ an ombudsman who will serve at the pleasure of, and must report directly to, the board and who will act as an advocate for the parents and legal guardians of plan participants.

2. The ombudsman shall do all of the following:

a. Provide information and assistance, outreach, and education to parents and legal guardians of plan participants regarding plan benefits and community, state, and federal government resources.

b. Investigate complaints of parents or legal guardians of plan participants regarding the operation of the plan.

c. Provide an annual report to the board regarding the ombudsman’s activities, the disposition of complaints, and any recommendations to improve the operations of the plan and the delivery of benefits to participants.

(6) On or before January 31, 2022, and by each January 31 thereafter, the association shall submit an annual report to the Governor, the President of the Senate, and the Speaker of the House of Representatives.

The report must include:

(a) The number of petitions filed for compensation with the division, the number of claimants awarded compensation, the number of claimants denied compensation, and the reasons for the denial of compensation.

(b) The number and dollar amount of paid and denied compensation for expenses by category and the reasons for any denied compensation for expenses by category.

(c) The average turnaround time for paying or denying compensation for expenses.

(d) Legislative recommendations to improve the program.

(e) A summary of any pending or resolved litigation during the year which affects the plan.

(f) For the initial report due on or before January 31, 2022, an actuarial report conducted by an independent actuary that provides an analysis of the estimated costs of implementing the following changes to the plan:

1. Reducing the minimum birth weight eligibility for a participant in the plan from 2,500 grams to 2,000 grams.

2. Revising the eligibility of participation in the plan by providing that an infant must be permanently and substantially mentally or physically impaired, rather than permanently and substantially mentally and physically impaired.

3. Increasing the annual special benefit or quality of life benefit from $500 to $2,500 per calendar year.

Section 10. The Auditor General shall conduct a performance audit of the association and plan to evaluate management’s performance in administering the laws, policies, and procedures governing the operations of the association and plan in an efficient and effective manner.

(1) The audit must include evaluations of all of the following:

(a) The protocols used for the payment of expenses, including standards for determining medical necessity and reasonableness of requests for medical care, services, or other benefits provided under the plan and the timeliness of the payment of expenses.

(b) The effectiveness of the association’s outreach to inform parents and legal guardians of participants of available benefits and any changes in benefits and processes to resolve disputes regarding the payment of expenses internally.

(c) The efficacy of the current processes for the procurement of goods and services.

(d) The internal controls of the plan and association.

(2) The Auditor General shall release the audit by January 15, 2022.

Section 11. Sections 766.301-766.316, Florida Statutes, are repealed on December 31, 2026, unless reviewed and saved from repeal by the Legislature.

Section 12. The amendments made to s.

766.31(1)(d)1.a.

and 2., Florida Statutes, by this act apply to all claims filed under s.

766.305, Florida Statutes, for which an award was made through entry of final order under s.

766.31(1), Florida Statutes, on or after January 1, 2021.

Section 13. This act shall take effect July 1, 2021.