Florida Birth-Related Neurological Injury Compensation Association

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A bill to be entitled 1
An act relating to the Florida Birth-Related 2
Neurological Injury Compensation Association; amending 3
s. 409.910, F.S.; requiring the agency to recover the 4
full amount of medical assistance from the 5
neurological injury compensation association; amending 6
s. 766.302, F.S.; providing and revising definitions; 7
removing a limitation on time subject to plan 8
compensation; amending s. 766.303, F.S.; revising 9
terminology; amending s. 766.305, F.S.; revising 10
provisions relating to filing claims; amending s. 11
766.309, F.S.; conforming a cross-reference; amending 12
s. 766.31, F.S.; revising items that are eligible for 13
an award providing compensation; requiring 14
compensation to be provided for certain actual 15
expenses; requiring compensation for the costs of 16
major medical health coverage; requiring the plan to 17
reimburse certain payments made for services provided; 18
exempting expenses for professional custodial care in 19
certain circumstances; requiring that, upon entry of a 20
final order for compensation, parents or legal 21
guardians obtain private health insurance or submit an 22
application for the Medicaid program; amending s. 23
766.314, F.S.; requiring the directors to maintain a 24
plan of operation; requiring certain assessments to be 25

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paid into the Florida Birth-Related Neurological 26
Injury Compensation Association at certain times for 27
certain purposes; requiring the plan of operation to 28
include a provision for fraud; removing obsolete 29
provisions; revising provisions relating to an 30
actuarial valuation of the plan; requiring the 31
association to submit quarterly estimates; requiring 32
the association to state whether the plan is 33
actuarially sound; authorizing a transfer of funds to 34
the association from the Insurance Regulatory Trust 35
Fund if the plan is not actuarially sound; requiring 36
the association to require each entity to issue 37
casualty insurance and pay an annual assessment; 38
providing requirements for annual assessments; 39
requiring an increase in assessments after certain 40
findings; requiring the association to determine 41
whether the plan is actuarially sound after certain 42
revisions; providing criteria for such determination; 43
requiring notification to the Governor, Legislature, 44
and Office of Insurance Regulation after certain 45
findings; providing that the plan is not the exclusive 46
remedy if it is prohibited from accepting new claims; 47
amending s. 766.315, F.S.; revising membership of the 48
association's board of directors; prohibiting the 49
board of directors from creating new benefits or 50

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expanding existing benefits under the plan under 51
certain circumstances; revising requirements for 52
certain reports of the association; providing an 53
effective date. 54
55
Be It Enacted by the Legislature of the State of Florida: 56
57
Section 1. Paragraph (a) of subsection (7) of section 58
409.910, Florida Statutes, is amended to read: 59
409.910 Responsibility for payments on behalf of Medicaid-60
eligible persons when other parties are liable.— 61
(7) The agency shall recover the full amount of all 62
medical assistance provided by Medicaid on behalf of the 63
recipient to the full extent of third-party benefits. 64
(a) Recovery of such benefits shall be collected directly 65
from: 66
1. Any third party; 67
2. The recipient or legal representative, if he or she has 68
received third-party benefits; 69
3. The provider of a recipient's medical services if 70
third-party benefits have been recovered by the provider; 71
notwithstanding any provision of this section, to the contrary, 72
however, no provider shall be required to refund or pay to the 73
agency any amount in excess of the actual third-party benefits 74

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received by the provider from a third-party payor for medical 75
services provided to the recipient; or 76
4. Any person who has received the third-party benefits; 77
or 78
5. The Florida Birth-Related Neurological Injury 79
Compensation Association for plan participant costs incurred 80
under s. 766.31. 81
82
The provisions of this subsection do not apply to any proceeds 83
received by the state, or any agency thereof, pursuant to a 84
final order, judgment, or settlement agreement, in any matter in 85
which the state asserts claims brought on its own behalf, and 86
not as a subrogee of a recipient, or under other theories of 87
liability. The provisions of this subsection do not apply to any 88
proceeds received by the state, or an agency thereof, pursuant 89
to a final order, judgment, or settlement agreement, in any 90
matter in which the state asserted both claims as a subrogee and 91
additional claims, except as to those sums specifically 92
identified in the final order, judgment, or settlement agreement 93
as reimbursements to the recipient as expenditures for the named 94
recipient on the subrogation claim. 95
Section 2. Section 766.302, Florida Statutes, is amended 96
to read: 97
766.302 Definitions; ss. 766.301-766.316.—As used in ss. 98
766.301-766.316, the term: 99

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(1) "Actuarially sound" means that the total plan assets 100
available to fund future liabilities are equal to or greater 101
than 90 percent of the present value of total estimated 102
liabilities excluding any risk margin. 103
(2)(4) "Administrative law judge" means an administrative 104
law judge appointed by the division. 105
(3)(1) "Association" means the Florida Birth-Related 106
Neurological Injury Compensation Association established in s. 107
766.315 to administer the Florida Birth-Related Neurological 108
Injury Compensation Plan and the plan of operation established 109
in s. 766.314. 110
(4)(2) "Birth-related neurological injury" means injury to 111
the brain or spinal cord of a live infant weighing at least 112
2,500 grams for a single gestation or, in the case of a multiple 113
gestation, a live infant weighing at least 2,000 grams at birth 114
caused by oxygen deprivation or mechanical injury occurring in 115
the course of labor, delivery, or resuscitation in the immediate 116
postdelivery period in a hospital, which renders the infant 117
permanently and substantially mentally and physically impaired. 118
This definition shall apply to live births only and does shall 119
not include disability or death caused by genetic or congenital 120
abnormality. 121
(5)(3) "Claimant" means any person who files a claim 122
pursuant to s. 766.305 for compensation for a birth-related 123
neurological injury to an infant. Such a claim may be filed by 124

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any legal representative on behalf of an injured infant; and, in 125
the case of a deceased infant, the claim may be filed by an 126
administrator, personal representative, or other legal 127
representative thereof. 128
(6)(5) "Division" means the Division of Administrative 129
Hearings of the Department of Management Services. 130
(7)(10) "Family residential or custodial care" means care 131
normally rendered by trained professional attendants which is 132
beyond the scope of child care duties, but which is provided by 133
family members. Family members who provide nonprofessional 134
residential or custodial care may not be compensated under this 135
act for care that falls within the scope of child care duties 136
and other services normally and gratuitously provided by family 137
members. Family residential or custodial care shall be performed 138
only at the direction and control of a physician when such care 139
is medically necessary. Reasonable charges for expenses for 140
family residential or custodial care provided by a family member 141
shall be determined as follows: 142
(a) If the family member is not employed, the per-hour 143
value equals the federal minimum hourly wage. 144
(b) If the family member is employed and elects to leave 145
that employment to provide such care, The per-hour value of that 146
care shall equal the rates established by Medicaid for private 147
duty services provided by a home health aide. A family member or 148
a combination of family members providing care in accordance 149

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with this definition may not be compensated for more than a 150
total of 10 hours per day. Family care is in lieu of 151
professional residential or custodial care, and no professional 152
residential or custodial care may be awarded for the period of 153
time during the day that family care is being provided. 154
(8)(9) "Family member" means a father, mother, or legal 155
guardian. 156
(9)(6) "Hospital" means any hospital licensed in Florida. 157
(10) "Office" means the Office of Insurance Regulation. 158
(11) "Participant" means the person who suffered a birth-159
related neurological injury as an infant and who accepted 160
compensation under the plan by final order entered by an 161
administrative law judge pursuant to s. 766.309. 162
(12)(7) "Participating physician" means a physician 163
licensed in Florida to practice medicine who practices 164
obstetrics or performs obstetrical services either full time or 165
part time and who had paid or was exempted from payment at the 166
time of the injury the assessment required for participation in 167
the birth-related neurological injury compensation plan for the 168
year in which the injury occurred. Such term does shall not 169
apply to any physician who practices medicine as an officer, 170
employee, or agent of the Federal Government. 171
(13)(8) "Plan" means the Florida Birth-Related 172
Neurological Injury Compensation Plan established under s. 173
766.303. 174

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(14) "Risk margin" means an additional, explicit allowance 175
above the best-estimate reserve to reflect uncertainty in future 176
claim payments, including variation in claimant life expectancy 177
and the number and cost of pending or unreported claims. The 178
risk margin is not included in the reserve amount used to 179
calculate the funding ratio. 180
Section 3. Section 766.303, Florida Statutes, is amended 181
to read: 182
766.303 Florida Birth-Related Neurological Injury 183
Compensation Plan; exclusiveness of remedy.— 184
(1) There is established the Florida Birth-Related 185
Neurological Injury Compensation Plan for the purpose of 186
providing compensation, irrespective of fault, for birth-related 187
neurological injuries injury claims. Such plan shall apply to 188
births occurring on or after January 1, 1989, and shall be 189
administered by the Florida Birth-Related Neurological Injury 190
Compensation Association. 191
(2) The rights and remedies granted by this plan on 192
account of a birth-related neurological injury shall exclude all 193
other rights and remedies of such infant, her or his personal 194
representative, family members parents, dependents, and next of 195
kin, at common law or otherwise, against any person or entity 196
directly involved with the labor, delivery, or immediate 197
postdelivery resuscitation during which such injury occurs, 198
arising out of or related to a medical negligence claim with 199

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respect to such injury; except that a civil action may shall not 200
be foreclosed where there is clear and convincing evidence of 201
bad faith or malicious purpose or willful and wanton disregard 202
of human rights, safety, or property, provided that such suit is 203
filed prior to and in lieu of payment of an award under ss. 204
766.301-766.316. Such suit shall be filed before the award of 205
the division becomes conclusive and binding as provided for in 206
s. 766.311. 207
(3) Sovereign immunity is hereby waived on behalf of the 208
Florida Birth-Related Neurological Injury Compensation 209
Association solely to the extent necessary to assure payment of 210
compensation as provided in s. 766.31. 211
(4) The association shall administer the plan in a manner 212
that promotes and protects the health and best interests of 213
participants children with birth-related neurological injuries. 214
Section 4. Subsections (1) and (3) of section 766.305, 215
Florida Statutes, are amended to read: 216
766.305 Filing of claims and responses; medical 217
disciplinary review.— 218
(1) All claims filed for compensation under the plan must 219
shall commence by the claimant filing with the division a 220
petition that includes all of seeking compensation. Such 221
petition shall include the following information: 222
(a) The name and address of the legal representative and 223
the basis for her or his representation of the injured infant. 224

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(b) The name and address of the injured infant. 225
(c) The name and address of any physician providing 226
obstetrical services who was present at the birth and the name 227
and address of the hospital at which the birth occurred. 228
(d) A description of the disability for which the claim is 229
made. 230
(e) The time and place the injury occurred. 231
(f) A brief statement of the facts and circumstances 232
surrounding the injury and giving rise to the claim. 233
(3) The claimant shall furnish to the Florida Birth-234
Related Neurological Injury Compensation association the 235
following information, which must be filed with the association 236
within 10 days after the filing of the petition as set forth in 237
subsection (1): 238
(a) All available relevant medical records relating to the 239
birth-related neurological injury and a list identifying any 240
unavailable records known to the claimant and the reasons for 241
the records' unavailability. 242
(b) Appropriate assessments, evaluations, and prognoses 243
and such other records and documents as are reasonably necessary 244
for the determination of the amount of compensation to be paid 245
to, or on behalf of, the injured infant on account of the birth-246
related neurological injury. 247

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(c) Documentation of expenses and services incurred to 248
date which identifies any payment made for such expenses and 249
services and the payor. 250
(d) Documentation of any applicable private or 251
governmental source of services or reimbursement relative to the 252
impairments. 253
254
The information required by paragraphs (a)-(d) shall remain 255
confidential and exempt under the provisions of s. 766.315(6)(b) 256
s. 766.315(5)(b). 257
Section 5. Paragraph (a) of subsection (1) of section 258
766.309, Florida Statutes, is amended to read: 259
766.309 Determination of claims; presumption; findings of 260
administrative law judge binding on participants.— 261
(1) The administrative law judge shall make the following 262
determinations based upon all available evidence: 263
(a) Whether the injury claimed is a birth-related 264
neurological injury. If the claimant has demonstrated, to the 265
satisfaction of the administrative law judge, that the infant 266
has sustained a brain or spinal cord injury caused by oxygen 267
deprivation or mechanical injury and that the infant was thereby 268
rendered permanently and substantially mentally and physically 269
impaired, a rebuttable presumption shall arise that the injury 270
is a birth-related neurological injury as defined in s. 766.302 271
s. 766.302(2). 272

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Section 6. Section 766.31, Florida Statutes, is amended to 273
read: 274
766.31 Administrative law judge awards for birth-related 275
neurological injuries; notice of award.— 276
(1) Upon determining that an infant has sustained a birth-277
related neurological injury and that obstetrical services were 278
delivered by a participating physician at the birth, the 279
administrative law judge shall make an award providing 280
compensation for the following items relative to such injury: 281
(a) Actual expenses incurred since the date of birth for 282
medically necessary and reasonable: 283
1. Medical and hospital care and services., 284
2. Habilitative services. and training, 285
3. Dental services. 286
4. Family residential or custodial care., 287
5. Facility care. Professional residential, and 288
6. Nursing and home health custodial care. and service, 289
7. for medically necessary Drugs., 290
8. Special equipment., and facilities, and 291
9. for Related travel. 292
10. Supplies. 293
(b) At a minimum, compensation must be provided for the 294
following medically necessary, as applicable, and reasonable 295
actual expenses: 296

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1. Psychotherapeutic services for A total annual benefit 297
of up to $10,000 for immediate family members and other 298
relatives who have resided reside with the participant, which 299
are infant for psychotherapeutic services obtained from a 300
psychiatrist licensed under chapter 458 or chapter 459, a 301
provider providers licensed under chapter 490 or chapter 491, or 302
a psychiatrist or provider who has equivalent licensure by 303
another jurisdiction. This benefit for such family members and 304
relatives shall be up to a total of $10,000 annually during the 305
participant's lifetime and up to a total of $20,000 subsequent 306
to the participant's death. 307
2. For the life of the participant child, providing family 308
members parents or legal guardians with a reliable method of 309
transporting transportation for the care of the participant and 310
child or reimbursing the cost of upgrading an existing vehicle 311
to accommodate the participant's wheelchair and medically 312
necessary equipment child's needs when it becomes medically 313
necessary for wheelchair transportation. The mode of 314
transportation must take into account the special accommodations 315
required for the specific child. The plan may not limit such 316
transportation assistance based on the participant's child's age 317
or weight. The plan must replace any vehicle vans purchased by 318
the plan every 7 years or 150,000 miles, whichever comes first. 319
3. Housing assistance of up to $100,000 for the life of 320
the participant child, including, but not limited to, a down 321

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payment on a new home, moving expenses, and home construction 322
and modification costs. 323
4. Legal costs associated with establishing and 324
maintaining guardianship for a participant. 325
(c)1. The costs of a health insurance policy or contract 326
that provides major medical or similar comprehensive health 327
coverage for the participant obtained pursuant to subsection 328
(3), including, but not limited to, the premium and out-of-329
pocket costs. For participants enrolled in the state Medicaid 330
program, the plan must reimburse fee-for-service paid claims and 331
capitation payments, as applicable, for services provided to 332
such participants pursuant to this section and for the 333
administrative and support costs associated with the provided 334
medical assistance. Such funds shall be credited to the Agency 335
for Health Care Administration's Medical Care Trust Fund. 336
2. By December 31, 2026, the plan shall reimburse any 337
participant for reasonable, medically necessary care received by 338
the participant on or before June 30, 2026, which was reduced or 339
not paid by the plan because such participant did not have 340
health coverage. 341
(d)(b) However, the following expenses are not subject to 342
compensation: 343
1. Expenses for items or services that the participant 344
infant has received, or is entitled to receive, under the laws 345

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of any state or the Federal Government, except to the extent 346
such exclusion may be prohibited by federal law. 347
2. Expenses for items or services that the participant 348
infant has received, or is contractually entitled to receive, 349
from any prepaid health plan, health maintenance organization, 350
or other private insuring entity. 351
3. Expenses for which the participant infant has received 352
reimbursement, or for which the participant infant is entitled 353
to receive reimbursement, under the laws of any state or the 354
Federal Government, except to the extent such exclusion may be 355
prohibited by federal law. 356
4. Expenses for which the participant infant has received 357
reimbursement, or for which the participant infant is 358
contractually entitled to receive reimbursement, pursuant to the 359
provisions of any health or sickness insurance policy or other 360
private insurance program. 361
5. Expenses for nursing, home health care, or family care 362
provided while care and supervision of the participant is 363
simultaneously being provided by another person or entity. 364
(e) Notwithstanding subparagraphs (d)2. and 4., the plan 365
may provide compensation for a medically necessary expense when 366
coverage secured under subsection (3) would not adequately meet 367
the participant's needs, would involve significant disruption in 368
continuity of care, or would be significantly burdensome to 369

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access, provided the expense otherwise meets the requirements of 370
ss. 766.301-766.316. 371
(f)(c) Expenses included under paragraphs paragraph (a) 372
and (b) are limited to reasonable charges prevailing in the same 373
community for similar treatment of injured persons when such 374
treatment is paid for by the injured person. 375
(g)1. A family member The parents or legal guardians 376
receiving benefits under the plan may file a petition with the 377
division of Administrative Hearings to dispute the amount of 378
actual expenses reimbursed or a denial of reimbursement. 379
2. In the case of an alleged overpayment of an expense 380
reimbursement by the association to a family member, if the 381
family member does not agree that an overpayment has occurred, 382
the association may file a petition for division review of the 383
overpayment for a determination of the amount, if any, to be 384
recouped by the association. 385
(h)1.(d)1.a. Periodic payments of an award to the family 386
members parents or legal guardians of the participant infant 387
found to have sustained a birth-related neurological injury, 388
which award may not exceed $100,000. However, at the discretion 389
of the administrative law judge, such award may be made in a 390
lump sum. Beginning on January 1, 2021, the award may not exceed 391
$250,000, and each January 1 thereafter, the maximum award 392
authorized under this paragraph shall increase by 3 percent. 393

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b. Parents or legal guardians who received an award 394
pursuant to this section before January 1, 2021, must receive a 395
retroactive payment in an amount sufficient to bring the total 396
award paid to the parents or legal guardians pursuant to sub-397
subparagraph a. to $250,000. This additional payment may be made 398
in a lump sum or in periodic payments as designated by the 399
parents or legal guardians and must be paid by July 1, 2021. 400
2.a. Death benefit for the participant infant in an amount 401
of $50,000. 402
b. Parents or legal guardians who received an award 403
pursuant to this section, and whose child died since the 404
inception of the program, must receive a retroactive payment in 405
an amount sufficient to bring the total award paid to the 406
parents or legal guardians pursuant to sub-subparagraph a. to 407
$50,000. This additional payment may be made in a lump sum or in 408
periodic payments as designated by the parents or legal 409
guardians and must be paid by July 1, 2021. 410
(i)(e) Reasonable expenses incurred in connection with the 411
filing of a claim under ss. 766.301-766.316, including 412
reasonable attorney attorney's fees, which shall be subject to 413
the approval and award of the administrative law judge. In 414
determining an award for attorney attorney's fees, the 415
administrative law judge shall consider the following factors: 416

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1. The time and labor required, the novelty and difficulty 417
of the questions involved, and the skill requisite to perform 418
the legal services properly. 419
2. The fee customarily charged in the locality for similar 420
legal services. 421
3. The time limitations imposed by the claimant or the 422
circumstances. 423
4. The nature and length of the professional relationship 424
with the claimant. 425
5. The experience, reputation, and ability of the lawyer 426
or lawyers performing services. 427
6. The contingency or certainty of a fee. 428
429
If there is Should there be a final determination of 430
compensability, and the claimants accept an award under this 431
section, the claimants shall are not be liable for any expenses, 432
including attorney fees, incurred in connection with the filing 433
of a claim under ss. 766.301-766.316 other than those expenses 434
awarded under this section. 435
(2) The award shall require the immediate payment of 436
expenses previously incurred and shall require that future 437
expenses be paid as incurred. 438
(3) A family member must continuously maintain 439
comprehensive major medical health coverage for the participant. 440

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(a) If the participant does not have such coverage at the 441
time of entry of a final order by an administrative law judge 442
approving a claim for compensation, the family member must 443
obtain coverage within 60 days after entry of such order or 444
apply for Medicaid coverage within 30 days after entry of such 445
order. 446
(b) If the participant is determined to be ineligible for 447
Medicaid, the family member must obtain other coverage within 60 448
days after receiving the Medicaid application denial. 449
(c) A family member of an individual who is a participant 450
on June 30, 2026, must obtain the required coverage for the 451
participant by January 1, 2027. 452
(4)(3) A copy of the award shall be sent immediately by 453
registered or certified mail to each person served with a copy 454
of the petition under s. 766.305(2). 455
Section 7. Section 766.314, Florida Statutes, is amended 456
to read: 457
766.314 Assessments; plan of operation.— 458
(1) The assessments established pursuant to this section 459
shall be used to finance the Florida Birth-Related Neurological 460
Injury Compensation Plan. 461
(2) The assessments and appropriations dedicated to the 462
plan shall be administered by the Florida Birth-Related 463
Neurological Injury Compensation Association established in s. 464
766.315, in accordance with the following requirements: 465

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(a) On or before July 1, 1988, The directors of the 466
association shall submit to the office Department of Insurance 467
for review and approval a plan of operation and any amendment 468
thereto which shall provide for the efficient administration of 469
the plan and for prompt processing of claims against and awards 470
made on behalf of the plan. The plan of operation shall include 471
provision for: 472
1. Establishment of necessary facilities; 473
2. Management of the funds collected on behalf of the 474
plan; 475
3. Processing of claims against the plan; 476
4. Assessment of the persons and entities listed in 477
subsections (4) and (7) (5) to pay awards and expenses, which 478
assessments shall be on an actuarially sound basis subject to 479
the limits set forth in subsections (4) and (5); 480
5. A fraud and overpayment prevention and detection 481
program; and 482
6.5. Any other matters necessary for the efficient 483
operation of the birth-related neurological injury compensation 484
plan. 485
(b) Amendments to the plan of operation may be made by the 486
directors of the plan, subject to the approval of the office of 487
Insurance Regulation of the Financial Services Commission. 488
(3) All assessments shall be deposited with the Florida 489
Birth-Related Neurological Injury Compensation association. The 490

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funds collected by the association and any income therefrom 491
shall be disbursed only for the payment of awards under ss. 492
766.301-766.316 and for the payment of the reasonable expenses 493
of administering the plan. 494
(4) The following persons and entities shall pay into the 495
association assessments as follows an initial assessment in 496
accordance with the plan of operation: 497
(a)1. On or before October 1, 1988, Each hospital licensed 498
under chapter 395 shall pay an initial assessment of $50 per 499
infant delivered in that the hospital during the prior calendar 500
year, as reported to the Agency for Health Care Administration; 501
provided, however, that a hospital owned or operated by the 502
state or a county, special taxing district, or other political 503
subdivision of the state shall not be required to pay the 504
initial assessment or any assessment required by this subsection 505
or subsection (7) (5). The term "infant delivered" includes live 506
births and not stillbirths, but the term does not include 507
infants delivered by employees or agents of the board of 508
trustees of a state university, those born in a teaching 509
hospital as defined in s. 408.07, or those born in a teaching 510
hospital as defined in s. 395.806 that have been deemed by the 511
association as being exempt from assessments since fiscal year 512
1997 to fiscal year 2001. The initial assessment and any 513
assessment imposed pursuant to subsection (7) (5) may not 514
include any infant born to a charity patient (as defined by rule 515

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of the Agency for Health Care Administration) or born to a 516
patient for whom the hospital receives Medicaid reimbursement, 517
if the sum of the annual charges for charity patients plus the 518
annual Medicaid contractuals of the hospital exceeds 10 percent 519
of the total annual gross operating revenues of the hospital. 520
The hospital is responsible for documenting, to the satisfaction 521
of the association, the exclusion of any birth from the 522
computation of the assessment. Upon demonstration of financial 523
need by a hospital, the association may provide for installment 524
payments of assessments. 525
2. Assessments are due, and hospitals shall pay, all 526
assessments required under this section by December 31 of the 527
calendar year immediately subsequent to the birth year. 528
(b)1.a. On or before October 15, 1988, All physicians 529
licensed pursuant to chapter 458 or chapter 459 as of October 1, 530
1988, other than participating physicians, shall be assessed an 531
annual initial assessment of $250., 532
b. Payment for all assessments required under this 533
paragraph is due on or before December 31 of each year which 534
must be paid no later than December 1, 1988. 535
2. Any such physician who becomes licensed after September 536
30, 1988, and before January 1, 1989, shall pay into the 537
association an initial assessment of $250 upon licensure. 538
3. Any such physician who becomes licensed on or after 539
January 1, 1989, shall pay an initial assessment equal to the 540

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most recent assessment made pursuant to this paragraph, 541
paragraph (5)(a), or paragraph (7)(b). 542
2.4. However, if the physician is a physician specified in 543
this subparagraph, the assessment is not applicable: 544
a. A resident physician, assistant resident physician, or 545
intern in an approved postgraduate training program, as defined 546
by the Board of Medicine or the Board of Osteopathic Medicine by 547
rule; 548
b. A retired physician who has withdrawn from the practice 549
of medicine but who maintains an active license as evidenced by 550
an affidavit filed with the Department of Health. Prior to 551
reentering the practice of medicine in this state, a retired 552
physician as herein defined must notify the Board of Medicine or 553
the Board of Osteopathic Medicine and pay the appropriate 554
assessments pursuant to this section; 555
c. A physician who holds a limited license pursuant to s. 556
458.317 and who is not being compensated for medical services; 557
d. A physician who is employed full time by the United 558
States Department of Veterans Affairs and whose practice is 559
confined to United States Department of Veterans Affairs 560
hospitals; or 561
e. A physician who is a member of the Armed Forces of the 562
United States and who meets the requirements of s. 456.024. 563
f. A physician who is employed full time by the State of 564
Florida and whose practice is confined to state-owned 565

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correctional institutions, a county health department, or state-566
owned mental health or developmental services facilities, or who 567
is employed full time by the Department of Health. 568
(c)1. On or before December 1, 1988, Each physician 569
licensed pursuant to chapter 458 or chapter 459 who wishes to 570
participate in the Florida Birth-Related Neurological Injury 571
Compensation Plan and who otherwise qualifies as a participating 572
physician under ss. 766.301-766.316 shall pay an annual initial 573
assessment of $5,000 and any assessment required under paragraph 574
(7)(c), if assessed. However, if the physician is either a 575
resident physician, assistant resident physician, or intern in 576
an approved postgraduate training program, as defined by the 577
Board of Medicine or the Board of Osteopathic Medicine by rule, 578
and is supervised in accordance with program requirements 579
established by the Accreditation Council for Graduate Medical 580
Education or the American Osteopathic Association by a physician 581
who is participating in the plan, such resident physician, 582
assistant resident physician, or intern is deemed to be a 583
participating physician without the payment of the assessment. 584
Participating physicians also include any employee of the board 585
of trustees of a state university who has paid the assessment 586
required by this paragraph and, if assessed, paragraph (7)(c) 587
(5)(a), and any certified nurse midwife supervised by such 588
employee. Participating physicians include any certified nurse 589
midwife who has paid 50 percent of the physician assessment 590

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required by this paragraph and, if assessed, paragraph (7)(c), 591
(5)(a) and who is supervised by a participating physician who 592
has paid the assessment required by this paragraph and, if 593
assessed, paragraph (7)(c) (5)(a). Supervision for nurse 594
midwives shall require that the supervising physician will be 595
easily available and have a prearranged plan of treatment for 596
specified patient problems which the supervised certified nurse 597
midwife may carry out in the absence of any complicating 598
features. Any physician who elects to participate in such plan 599
on or after January 1, 1989, who was not a participating 600
physician at the time of such election to participate and who 601
otherwise qualifies as a participating physician under ss. 602
766.301-766.316 shall pay an additional initial assessment equal 603
to the most recent assessment made pursuant to this paragraph, 604
paragraph (5)(a), or paragraph (7)(b). 605
2. Payment of assessments required by this paragraph is 606
due on or before December 31 of each year for qualification as a 607
participating physician during the next calendar year. If 608
payment of the assessments is received by the association on or 609
before January 31 of any calendar year, the physician shall 610
qualify as a participating physician for that entire calendar 611
year. If the payment is received after January 31, the physician 612
shall qualify as a participating physician for that calendar 613
year only from the date the payment was received by the 614
association. 615

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(d) Any hospital located in a county with a population in 616
excess of 1.1 million as of January 1, 2003, as determined by 617
the Agency for Health Care Administration under the Health Care 618
Responsibility Act, may elect to pay the assessments required by 619
paragraph (c) fee for the participating physician and the 620
certified nurse midwife if the hospital first determines that 621
the primary motivating purpose for making such payment is to 622
ensure coverage for the hospital's patients under the provisions 623
of ss. 766.301-766.316; however, no hospital may restrict any 624
participating physician or nurse midwife, directly or 625
indirectly, from being on the staff of hospitals other than the 626
staff of the hospital making the payment. Each hospital shall 627
file with the association an affidavit setting forth 628
specifically the reasons why the hospital elected to make the 629
payment on behalf of each participating physician and certified 630
nurse midwife. The payments authorized under this paragraph 631
shall be in addition to the assessment set forth in paragraph 632
(5)(a). 633
(5)(a) Beginning January 1, 1990, the persons and entities 634
listed in paragraphs (4)(b) and (c), except those persons or 635
entities who are specifically excluded from said provisions, as 636
of the date determined in accordance with the plan of operation, 637
taking into account persons licensed subsequent to the payment 638
of the initial assessment, shall pay an annual assessment in the 639
amount equal to the initial assessments provided in paragraphs 640

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(4)(b) and (c). If payment of the annual assessment by a 641
physician is received by the association by January 31 of any 642
calendar year, the physician shall qualify as a participating 643
physician for that entire calendar year. If the payment is 644
received after January 31 of any calendar year, the physician 645
shall qualify as a participating physician for that calendar 646
year only from the date the payment was received by the 647
association. On January 1, 1991, and on each January 1 648
thereafter, the association shall determine the amount of 649
additional assessments necessary pursuant to subsection (7), in 650
the manner required by the plan of operation, subject to any 651
increase determined to be necessary by the Office of Insurance 652
Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on 653
each July 1 thereafter, the persons and entities listed in 654
paragraphs (4)(b) and (c), except those persons or entities who 655
are specifically excluded from said provisions, shall pay the 656
additional assessments which were determined on January 1. 657
Beginning January 1, 1990, the entities listed in paragraph 658
(4)(a), including those licensed on or after October 1, 1988, 659
shall pay an annual assessment of $50 per infant delivered 660
during the prior calendar year. The additional assessments which 661
were determined on January 1, 1991, pursuant to the provisions 662
of subsection (7) shall not be due and payable by the entities 663
listed in paragraph (4)(a) until July 1. 664

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(b) If the assessments collected pursuant to subsection 665
(4) and the appropriation of funds provided by s. 76, chapter 666
88-1, Laws of Florida, as amended by s. 41, chapter 88-277, Laws 667
of Florida, to the plan from the Insurance Regulatory Trust Fund 668
are insufficient to maintain the plan on an actuarially sound 669
basis, there is hereby appropriated for transfer to the 670
association from the Insurance Regulatory Trust Fund an 671
additional amount of up to $20 million. 672
(c)1. Taking into account the assessments collected 673
pursuant to subsection (4) and appropriations from the Insurance 674
Regulatory Trust Fund, if required to maintain the plan on an 675
actuarially sound basis, the Office of Insurance Regulation 676
shall require each entity licensed to issue casualty insurance 677
as defined in s. 624.605(1)(b), (k), and (q) to pay into the 678
association an annual assessment in an amount determined by the 679
office pursuant to paragraph (7)(a), in the manner required by 680
the plan of operation. 681
2. All annual assessments shall be made on the basis of 682
net direct premiums written for the business activity which 683
forms the basis for each such entity's inclusion as a funding 684
source for the plan in the state during the prior year ending 685
December 31, as reported to the Office of Insurance Regulation, 686
and shall be in the proportion that the net direct premiums 687
written by each carrier on account of the business activity 688
forming the basis for its inclusion in the plan bears to the 689

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aggregate net direct premiums for all such business activity 690
written in this state by all such entities. 691
3. No entity listed in this paragraph shall be 692
individually liable for an annual assessment in excess of 0.25 693
percent of that entity's net direct premiums written. 694
4. Casualty insurance carriers shall be entitled to 695
recover their initial and annual assessments through a surcharge 696
on future policies, a rate increase applicable prospectively, or 697
a combination of the two. 698
(5)(6)(a) The association shall make all assessments 699
required by this section, except initial assessments of 700
physicians newly licensed by the Department of Health, which 701
assessments will be made by the Department of Health, and except 702
assessments of casualty insurers pursuant to paragraph (7)(c) 703
subparagraph (5)(c)1., which assessments will be made by the 704
office of Insurance Regulation. The Department of Health shall 705
provide the association, in an electronic format, with a monthly 706
report of the names and license numbers of all physicians 707
licensed under chapter 458 or chapter 459. 708
(b)1. The association may enforce collection of 709
assessments required to be paid pursuant to ss. 766.301-766.316 710
by suit filed in county court, or in circuit court if the amount 711
due could exceed the jurisdictional limits of county court. The 712
association is entitled to an award of attorney fees, costs, and 713
interest upon the entry of a judgment against a physician for 714

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failure to pay such assessment, with such interest accruing 715
until paid. Notwithstanding chapters 47 and 48, the association 716
may file such suit in either Leon County or the county of the 717
residence of the defendant. The association shall notify the 718
Department of Health and the applicable board of any unpaid 719
final judgment against a physician within 7 days after the entry 720
of final judgment. 721
2. The Department of Health, upon notification by the 722
association that an assessment has not been paid and that there 723
is an unsatisfied judgment against a physician, shall refuse to 724
renew any license issued to such physician under chapter 458 or 725
chapter 459 until the association notifies the Department of 726
Health that the judgment is satisfied in full. 727
(c) The Agency for Health Care Administration shall, upon 728
notification by the association that an assessment has not been 729
timely paid, enforce collection of such assessments required to 730
be paid by hospitals pursuant to ss. 766.301-766.316. Failure of 731
a hospital to pay such assessment is grounds for disciplinary 732
action pursuant to s. 395.1065 notwithstanding any law to the 733
contrary. 734
(6)(9)(a) Within 60 days after a claim is filed, the 735
association shall estimate the present value of the total cost 736
of the claim, including the estimated amount to be paid to the 737
claimant, the claimant's attorney, the attorney's fees of the 738
association incident to the claim, and any other expenses that 739

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are reasonably anticipated to be incurred by the association in 740
connection with the adjudication and payment of the claim. For 741
purposes of this estimate, the association should include the 742
maximum benefits for noneconomic damages. 743
(b) The association shall revise these estimates quarterly 744
based upon the actual costs incurred and any additional 745
information that becomes available to the association since the 746
last review of this estimate. The estimate shall be reduced by 747
any amounts paid by the association that were included in the 748
current estimate. The association must submit such quarterly 749
estimates to the office within 10 business days after 750
completion. 751
(c) After the revisions of estimates required under 752
paragraph (b), each quarter, the association shall calculate 753
whether the plan is actuarially sound. If the association's 754
calculation indicates that the plan is not actuarially sound, 755
the association shall immediately notify the office as described 756
in subsection (7). The office must review the association's 757
calculations and, within 60 days after the association's 758
notification, determine whether to initiate an actuarial 759
valuation as described in subsection (7), and notify the 760
association of its determination. At a minimum, the office shall 761
make its determination based on the degree to which the 762
association's calculations indicate that the plan is not 763
actuarially sound, the direction and consistency of recent 764

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trends in the calculations of the plan's actuarial soundness, 765
and the length of time since the most recent actuarial valuation 766
conducted by the office and until the next biennial valuation. 767
The office shall initiate such actuarial valuation within 30 768
days after its determination that there is a need for a 769
valuation. 770
1. If the total of all current estimates equals or exceeds 771
100 percent of the funds on hand and the funds that will become 772
available to the association within the next 12 months from all 773
sources described in subsection (4) and paragraph (5)(a), the 774
association may not accept any new claims without express 775
authority from the Legislature. This section does not preclude 776
the association from accepting any claim if the injury occurred 777
18 months or more before the effective date of this suspension. 778
Within 30 days after the effective date of this suspension, the 779
association shall notify the Governor, the Speaker of the House 780
of Representatives, the President of the Senate, the Office of 781
Insurance Regulation, the Agency for Health Care Administration, 782
and the Department of Health of this suspension. 783
2. Notwithstanding this paragraph, the association is 784
authorized to accept new claims during the 2025-2026 fiscal year 785
if the total of all current estimates exceeds the limits 786
described in subparagraph 1. during that fiscal year. This 787
subparagraph expires July 1, 2026. 788

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(d) If any person is precluded from asserting a claim 789
against the association because of paragraph (c), the plan shall 790
not constitute the exclusive remedy for such person, his or her 791
personal representative, parents, dependents, or next of kin. 792
(7)(a) The office of Insurance Regulation shall undertake 793
an actuarial investigation of the requirements of the plan based 794
on the plan's experience in the first year of operation and any 795
additional relevant information, including without limitation 796
the assets and liabilities of the plan. Pursuant to such 797
investigation, the Office of Insurance Regulation shall 798
establish the rate of contribution of the entities listed in 799
paragraph (5)(c) for the tax year beginning January 1, 1990. 800
Following the initial valuation, the Office of Insurance 801
Regulation shall cause an actuarial valuation to be made of the 802
assets and liabilities of the plan at a minimum no less 803
frequently than biennially on or before December 31 of even-804
numbered years and as provided in subsection (6). Such valuation 805
shall be based on the assets and liabilities of the plan for the 806
calendar year before the year in which the actuarial valuation 807
is due. The office shall also determine whether the plan has 808
adequate estimated cash flow for the following fiscal year, 809
whether, based on the actuarial valuation, the plan is 810
actuarially sound, and if not, whether the plan is likely to 811
return to actuarial soundness before the next biennial review. 812
Pursuant to the results of such valuations, the Office of 813

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Insurance Regulation shall prepare a statement as to the 814
contribution rate applicable to the entities listed in paragraph 815
(5)(c). However, at no time shall the rate be greater than 0.25 816
percent of net direct premiums written. 817
(b) If the office determines that the plan lacks adequate 818
cash flow for the following fiscal year pursuant to the review 819
in paragraph (a), the office shall authorize a transfer of up to 820
$20 million from the Insurance Regulatory Trust Fund to the 821
association within 30 calendar days. 822
(c)(b) If the office of Insurance Regulation finds that 823
the plan is not likely to return to actuarial soundness before 824
the next biennial review pursuant to the review in paragraph 825
(a), the office shall, within 60 calendar days after this 826
finding, order one or more of the following actions: 827
1. Increase the assessments specified in paragraphs (4)(a) 828
and (c) on a proportional basis, by an amount not exceeding 100 829
percent of the applicable assessment in paragraphs (4)(a) and 830
(c), that is calculated to generate a total amount no greater 831
than the amount required to maintain the plan on an actuarially 832
sound basis. 833
2. If actuarial soundness cannot be achieved after using 834
the remedy in subparagraph 1., increase the assessments 835
specified in paragraph (4)(b) on a proportional basis, by an 836
amount not exceeding 100 percent of the assessment in paragraph 837
(4)(b), that is calculated to generate a total amount no greater 838

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than the amount required to maintain the plan on an actuarially 839
sound basis. 840
3. If actuarial soundness cannot be achieved after using 841
the remedies in subparagraphs 1. and 2., require each entity 842
licensed to issue casualty insurance as defined in s. 843
624.605(1)(b), (k), and (q) to pay into the association an 844
annual assessment that is calculated to generate a total amount 845
no greater than the amount required to achieve actuarial 846
soundness of the plan within 5 years after the date of the 847
order, subject to the limitations of this subparagraph. 848
a. These assessments shall be made on the basis of net 849
direct premiums written for the business activity which forms 850
the basis for each such entity's inclusion as a funding source 851
for the plan in the state during the prior year ending December 852
31, as reported to the office, and shall be in the proportion 853
that the net direct premiums written by each carrier on account 854
of the business activity forming the basis for its inclusion in 855
the plan bears to the aggregate net direct premiums for all such 856
business activity written in this state by all such entities. 857
b. No entity shall be individually liable for an annual 858
assessment in excess of 0.25 percent of that entity's net direct 859
premiums written. 860
c. Casualty insurance carriers shall be entitled to 861
recover their assessments through a surcharge on future 862

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policies, a rate increase applicable prospectively, or a 863
combination of the two. 864
d. An assessment under this subparagraph must not extend 5 865
years after the date of the order. 866
(d) If the office finds that the plan is not actuarially 867
sound pursuant to the review in paragraph (a), the plan shall 868
provide the office with quarterly reports projecting the plan's 869
financial health and, if assessments were ordered by the office 870
under this paragraph, projected revenues for such assessments. 871
(e) If the association finds that the plan is not 872
actuarially sound and the remedies provided under subsection (7) 873
are insufficient to reestablish the actuarial soundness of the 874
plan, the association shall, within 60 days after such finding, 875
notify the Governor, the President of the Senate, the Speaker of 876
the House of Representatives, and the office. If the plan issues 877
the notice, the association may not accept any new claims 878
without express authority from the Legislature. This paragraph 879
does not preclude the association from accepting any claim if 880
the injury occurred 18 months or more before the effective date 881
of this suspension. 882
(f) If any person is precluded from asserting a claim 883
against the association because of paragraph (e), the plan shall 884
not constitute the exclusive remedy for such person, his or her 885
personal representative, parents, dependents, or next of kin 886
cannot be maintained on an actuarially sound basis based on the 887

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assessments and appropriations listed in subsections (4) and 888
(5), the office shall increase the assessments specified in 889
subsection (4) on a proportional basis as needed. 890
(8) The association shall report to the Legislature its 891
determination as to the annual cost of maintaining the fund on 892
an actuarially sound basis. In making its determination, the 893
association shall consider the recommendations of all hospitals, 894
physicians, casualty insurers, attorneys, consumers, and any 895
associations representing any such person or entity. 896
Notwithstanding the provisions of s. 395.3025, all hospitals, 897
casualty insurers, departments, boards, commissions, and 898
legislative committees shall provide the association with all 899
relevant records and information upon request to assist the 900
association in making its determination. All hospitals shall, 901
upon request by the association, provide the association with 902
information from their records regarding any live birth. Such 903
information shall not include the name of any physician, the 904
name of any hospital employee or agent, the name of the patient, 905
or any other information which will identify the infant involved 906
in the birth. Such information thereby obtained shall be 907
utilized solely for the purpose of assisting the association and 908
shall not subject the hospital to any civil or criminal 909
liability for the release thereof. Such information shall 910
otherwise be confidential and exempt from the provisions of s. 911
119.07(1) and s. 24(a), Art. I of the State Constitution. 912

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Section 8. Present subsections (5) through (8) of section 913
766.315, Florida Statutes, are redesignated as subsections (6) 914
through (9), respectively, a new subsection (5) is added to that 915
section, and subsection (1), paragraph (e) of present subsection 916
(5), and present subsections (7) and (8) of that section are 917
amended to read: 918
766.315 Florida Birth-Related Neurological Injury 919
Compensation Association; board of directors; notice of 920
meetings; report.— 921
(1)(a) The Florida Birth-Related Neurological Injury 922
Compensation Plan shall be governed by a board of seven 923
directors which shall be known as the Florida Birth-Related 924
Neurological Injury Compensation Association. The association is 925
not a state agency, board, or commission. Notwithstanding the 926
provision of s. 15.03, the association is authorized to use the 927
state seal. 928
(b) The directors shall be appointed for staggered terms 929
of 3 years or until their successors are appointed and have 930
qualified; however, a director may not serve for more than 6 931
consecutive years. 932
(c) The directors shall be appointed by the Chief 933
Financial Officer as follows: 934
1. One citizen representative who is not affiliated with 935
any of the groups identified in subparagraphs 2.-7. 936
2. One representative of participating physicians. 937

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3. One representative of hospitals. 938
4. One representative of casualty insurers. 939
5. One representative of physicians other than 940
participating physicians. 941
6. One family member of a participant parent or legal 942
guardian representative of an injured infant under the plan. 943
7. One representative of an advocacy organization for 944
children with disabilities. 945
(5) The board of directors may not create new benefits or 946
expand existing benefits that result in additional costs to the 947
plan if the plan's operating expenses exceed assessment revenue, 948
plus investment income, as documented in the plan's audited 949
financial statements for the prior fiscal year. 950
(6)(5) 951
(e) Annually, the association shall furnish audited 952
financial reports to any plan participant upon request, to the 953
office of Insurance Regulation of the Financial Services 954
Commission, and to the Joint Legislative Auditing Committee. The 955
reports must be prepared in accordance with generally accepted 956
auditing standards accounting procedures and must include such 957
information as may be required by the office of Insurance 958
Regulation or the Joint Legislative Auditing Committee. At any 959
time determined to be necessary, the office of Insurance 960
Regulation or the Joint Legislative Auditing Committee may 961
conduct an audit of the plan. 962

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(8)(7) The association shall publish a report on its 963
website by January 1 of each year. The report must shall include 964
all of the following: 965
(a) The names and terms of each board member and executive 966
staff member. 967
(b) The amount of compensation paid to each association 968
employee or independent contractor. 969
(c) A summary of reimbursement disputes and resolutions. 970
(d) A list of expenditures for attorney fees and lobbying 971
fees. 972
(e) Other expenses to oppose each plan claim. Any personal 973
identifying information of the parent, legal guardian, or child 974
involved in the claim must be removed from this list. 975
(9)(8) By November 1 of each year, the association shall 976
submit a report to the Governor, the President of the Senate, 977
the Speaker of the House of Representatives, and the Chief 978
Financial Officer. The report must include all of the following: 979
(a) The number of petitions filed for compensation with 980
the division, the number of claimants awarded compensation, the 981
number of claimants denied compensation, and the reasons for the 982
denial of compensation. 983
(b) The number and dollar amount of paid and denied 984
compensation for expenses by category and the reasons for any 985
denied compensation for expenses by category. 986

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(c) The average turnaround time for paying or denying 987
compensation for expenses. 988
(d) Legislative recommendations to improve the program. 989
(e) A summary of any pending or resolved litigation during 990
the year which affects the plan. 991
(f) The amount of compensation paid to each association 992
employee, independent contractor, or member of the board of 993
directors. 994
Section 9. This act shall take effect July 1, 2026. 995