Florida Birth-Related Neurological Injury Compensation Association

ENROLLED

2026

Legislature

CS for CS for SB 1668, 1st Engrossed

20261668er
1
2 An act relating to the Florida Birth-Related
3 Neurological Injury Compensation Association; amending
4 s. 409.910, F.S.; requiring the Agency for Health Care
5 Administration to recover from the Florida Birth
6 Related Neurological Injury Compensation Association
7 specified costs incurred by Medicaid; reordering and
8 amending s. 766.302, F.S.; defining terms; revising
9 definitions; amending s. 766.303, F.S.; revising the
10 exclusiveness of rights and remedies of the Florida
11 Birth-Related Neurological Injury Compensation Plan;
12 making technical and conforming changes; amending s.
13 766.305, F.S.; making technical and conforming
14 changes; amending s. 766.309, F.S.; conforming a
15 cross-reference; amending s. 766.31, F.S.; revising
16 the expenses covered by an award for compensation
17 under the plan; revising services eligible for
18 compensation under certain annual benefits under the
19 plan; providing an additional benefit for
20 psychotherapeutic services for family members upon the
21 death of a participant; revising eligibility criteria
22 for transportation and housing assistance benefits
23 under the plan; providing coverage of certain legal
24 costs under the plan; requiring the plan to reimburse
25 certain claims and payments for plan participants also
26 enrolled in the state Medicaid program; requiring that
27 such funds be credited to the agency’s Medical Care
28 Trust Fund; requiring the plan to reimburse certain
29 participants by a specified date; prohibiting
30 compensation under the plan for family residential or
31 custodial care under certain circumstances;
32 authorizing the association to file a petition with
33 the Division of Administrative Hearings if there is a
34 dispute regarding overpayment of an expense
35 reimbursement under the plan; deleting obsolete
36 language; requiring family members of plan
37 participants to continuously maintain certain health
38 insurance coverage for the participant; requiring
39 family members of plan participants to obtain such
40 coverage or apply for Medicaid coverage within a
41 specified timeframe after entry of a final order for
42 an award for compensation under the plan; requiring
43 family members of current plan participants to obtain
44 the requisite health insurance coverage by a specified
45 date; amending s. 766.314, F.S.; revising requirements
46 for the administration of assessments and
47 appropriations dedicated to the Florida Birth-Related
48 Neurological Injury Compensation Plan; revising the
49 schedule of assessments participating hospitals and
50 physicians are required to pay to the association;
51 requiring the association to submit revised quarterly
52 claim estimates to the office within a specified
53 timeframe; requiring the association to assess its
54 financial condition and issue a specified notice to
55 the Office of Insurance Regulation in certain
56 circumstances; requiring the Office of Insurance
57 Regulation to review the association’s financial
58 condition upon receipt of such report; providing
59 criteria for review; providing the timeframe and
60 criteria for the Office of Insurance Regulation’s
61 biennial review of the association’s financial
62 condition; requiring a determination regarding the
63 plan’s short term cash flow; requiring the office to
64 authorize transfers of funds to the association within
65 a specified timeframe under certain circumstances;
66 providing that the cumulative amount of such transfers
67 may not exceed a specified amount over the life of the
68 plan; providing the office with specified
69 responsibilities; providing limitations on time and
70 value of potential assessments; deleting reporting
71 requirements; repealing a public records exemption;
72 amending s. 766.315, F.S.; revising membership of the
73 association’s board of directors; prohibiting the
74 board of directors from creating new benefits or
75 expanding existing benefits under the plan under
76 certain circumstances; providing construction;
77 revising requirements for certain reports of the
78 association; providing an effective date.
79
80 Be It Enacted by the Legislature of the State of Florida:
81
82 Section 1. Paragraph (a) of subsection (7) of section
83 409.910, Florida Statutes, is amended to read:
84 409.910 Responsibility for payments on behalf of Medicaid
85 eligible persons when other parties are liable.—
86 (7) The agency shall recover the full amount of all medical
87 assistance provided by Medicaid on behalf of the recipient to
88 the full extent of third-party benefits.
89 (a) Recovery of such benefits shall be collected directly
90 from:
91 1. Any third party;
92 2. The recipient or legal representative, if he or she has
93 received third-party benefits;
94 3. The provider of a recipient’s medical services if third
95 party benefits have been recovered by the provider;
96 notwithstanding any provision of this section, to the contrary,
97 however, no provider shall be required to refund or pay to the
98 agency any amount in excess of the actual third-party benefits
99 received by the provider from a third-party payor for medical
100 services provided to the recipient;
or

101 4. Any person who has received the third-party benefits
; or

102
5. The Florida Birth-Related Neurological Injury

103
Compensation Association for plan participant costs incurred

104
under s. 766.31
.
105
106 The provisions of this subsection do not apply to any proceeds
107 received by the state, or any agency thereof, pursuant to a
108 final order, judgment, or settlement agreement, in any matter in
109 which the state asserts claims brought on its own behalf, and
110 not as a subrogee of a recipient, or under other theories of
111 liability. The provisions of this subsection do not apply to any
112 proceeds received by the state, or an agency thereof, pursuant
113 to a final order, judgment, or settlement agreement, in any
114 matter in which the state asserted both claims as a subrogee and
115 additional claims, except as to those sums specifically
116 identified in the final order, judgment, or settlement agreement
117 as reimbursements to the recipient as expenditures for the named
118 recipient on the subrogation claim.
119 Section 2. Section 766.302, Florida Statutes, is reordered
120 and amended to read:
121 766.302 Definitions; ss. 766.301-766.316.—As used in ss.
122 766.301-766.316, the term:
123
(1)

“Actuarially sound” means that the total plan assets

124
available to fund future liabilities are equal to or greater

125
than 90 percent of the present value of total estimated

126
liabilities excluding any risk margin.

127
(2)
(4)
“Administrative law judge” means an administrative
128 law judge appointed by the division.
129
(3)
(1)
“Association” means the Florida Birth-Related
130 Neurological Injury Compensation Association established in s.
131 766.315 to administer the Florida Birth-Related Neurological
132 Injury Compensation Plan and the plan of operation established
133 in s. 766.314.
134
(4)
(2)
“Birth-related neurological injury” means injury to
135 the brain or spinal cord of a live infant weighing at least
136 2,500 grams for a single gestation or, in the case of a multiple
137 gestation, a live infant weighing at least 2,000 grams at birth
138 caused by oxygen deprivation or mechanical injury occurring in
139 the course of labor, delivery, or resuscitation in the immediate
140 postdelivery period in a hospital, which renders the infant
141 permanently and substantially mentally and physically impaired.
142 This definition shall apply to live births only and
does

shall

143 not include disability or death caused by genetic or congenital
144 abnormality.
145
(5)
(3)
“Claimant” means any person who files a claim
146 pursuant to s. 766.305
for compensation
for a birth-related
147 neurological injury to an infant. Such a claim may be filed by
148 any legal representative on behalf of an injured infant; and, in
149 the case of a deceased infant, the claim may be filed by an
150 administrator, personal representative, or other legal
151 representative thereof.
152
(6)
(5)
“Division” means the Division of Administrative
153 Hearings of the Department of Management Services.
154
(7)
(9)
“Family member” means a father, mother, or legal
155 guardian.
156
(8)
(10)
“Family residential or custodial care” means care
157 normally rendered by trained professional attendants which is
158 beyond the scope of child care duties, but which is provided by
159 family members. Family members who provide nonprofessional
160 residential or custodial care may not be compensated under this
161 act for care that falls within the scope of child care duties
162 and other services normally and gratuitously provided by family
163 members. Family residential or custodial care shall be performed
164 only at the direction and control of a physician when such care
165 is medically necessary. Reasonable charges for expenses for
166 family residential or custodial care provided by a family member
167 shall be determined as follows:
168 (a) If the family member is not employed, the per-hour
169 value equals the federal minimum hourly wage.
170 (b) If the family member is employed and elects to leave
171 that employment to provide such care, the per-hour value of that
172 care shall equal the rates established by Medicaid for private
173 duty services provided by a home health aide. A family member or
174 a combination of family members providing care in accordance
175 with this definition may not be compensated for more than a
176 total of 10 hours per day. Family care is in lieu of
177 professional residential or custodial care, and no professional
178 residential or custodial care may be awarded for the period of
179 time 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

183
related neurological injury as an infant and who accepted

184
compensation under the plan by final order entered by an

185
administrative law judge pursuant to s. 766.309.

186
(12)
(7)
“Participating physician” means a physician
187 licensed in Florida to practice medicine who practices
188 obstetrics or performs obstetrical services either full time or
189 part time and who had paid or was exempted from payment at the
190 time of the injury the assessment required for participation in
191 the birth-related neurological injury compensation plan for the
192 year in which the injury occurred. Such term
does

shall
not
193 apply to any physician who practices medicine as an officer,
194 employee, or agent of the Federal Government.
195
(13)
(8)
“Plan” means the Florida Birth-Related Neurological
196 Injury Compensation Plan established under s. 766.303.
197
(
14
)

“Risk
m
argin” means an additional, explicit allowance

198
above the best-estimate reserve to reflect uncertainty in future

199
claim payments, including variations in claimant life expectancy

200
and the number and cost of pending or unreported claims. The

201
risk margin is not included in the reserve amount used to

202
calculate the funding ratio.

203 Section 3. Section 766.303, Florida Statutes, is amended to
204 read:
205 766.303 Florida Birth-Related Neurological Injury
206 Compensation Plan; exclusiveness of remedy.—
207 (1) There is established the Florida Birth-Related
208 Neurological Injury Compensation Plan for the purpose of
209 providing compensation, irrespective of fault, for birth-related
210 neurological
injuries

injury claims
. Such plan shall apply to
211 births occurring on or after January 1, 1989, and shall be
212 administered by the Florida Birth-Related Neurological Injury
213 Compensation Association.
214 (2) The rights and remedies granted by this plan on account
215 of a birth-related neurological injury shall exclude all other
216 rights and remedies of such infant, her or his personal
217 representative,
family members

parents
, dependents, and next of
218 kin, at common law or otherwise, against any person or entity
219 directly involved with the labor, delivery, or immediate
220 postdelivery resuscitation during which such injury occurs,
221 arising out of or related to a medical negligence claim with
222 respect to such injury; except that a civil action
may

shall
not
223 be foreclosed where there is clear and convincing evidence of
224 bad faith or malicious purpose or willful and wanton disregard
225 of human rights, safety, or property, provided that such suit is
226 filed prior to and in lieu of payment of an award under ss.
227 766.301-766.316. Such suit shall be filed before the award of
228 the division becomes conclusive and binding as provided for in
229 s. 766.311.
230 (3) Sovereign immunity is hereby waived on behalf of the
231 Florida Birth-Related Neurological Injury Compensation
232 Association solely to the extent necessary to assure payment of
233 compensation as provided in s. 766.31.
234 (4) The association shall administer the plan in a manner
235 that promotes and protects the health and best interests of
236
participants

children
with birth-related neurological injuries.
237 Section 4. Subsections (1) and (3) of section 766.305,
238 Florida Statutes, are amended to read:
239 766.305 Filing of claims and responses; medical
240 disciplinary review.—
241 (1) All claims filed
for compensation
under the plan
must

242
shall
commence by the claimant filing with the division a
243 petition
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
246 the 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
249 obstetrical services who was present at the birth and the name
250 and address of the hospital at which the birth occurred.
251 (d) A description of the disability for which the claim is
252 made.
253 (e) The time and place the injury occurred.
254 (f) A brief statement of the facts and circumstances
255 surrounding 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
258 information, which must be filed with the association within 10
259 days after the filing of the petition as set forth in subsection
260 (1):
261 (a) All available relevant medical records relating to the
262 birth-related neurological injury and a list identifying any
263 unavailable records known to the claimant and the reasons for
264 the records’ unavailability.
265 (b) Appropriate assessments, evaluations, and prognoses and
266 such other records and documents as are reasonably necessary for
267 the determination of the amount of compensation to be paid to,
268 or on behalf of, the injured infant on account of the birth
269 related neurological injury.
270 (c) Documentation of expenses and services incurred to date
271 which identifies any payment made for such expenses and services
272 and the payor.
273 (d) Documentation of any applicable private or governmental
274 source of services or reimbursement relative to the impairments.
275
276 The information required by paragraphs (a)-(d) shall remain
277 confidential and exempt under the provisions of
s. 766.315(6)(b)

278
s. 766.315(5)(b)
.
279 Section 5. Paragraph (a) of subsection (1) of section
280 766.309, Florida Statutes, is amended to read:
281 766.309 Determination of claims; presumption; findings of
282 administrative law judge binding on participants.—
283 (1) The administrative law judge shall make the following
284 determinations based upon all available evidence:
285 (a) Whether the injury claimed is a birth-related
286 neurological injury. If the claimant has demonstrated, to the
287 satisfaction of the administrative law judge, that the infant
288 has sustained a brain or spinal cord injury caused by oxygen
289 deprivation or mechanical injury and that the infant was thereby
290 rendered permanently and substantially mentally and physically
291 impaired, a rebuttable presumption shall arise that the injury
292 is a birth-related neurological injury as defined in
s. 766.302

293
s. 766.302(2)
.
294 Section 6. Section 766.31, Florida Statutes, is amended to
295 read:
296 766.31 Administrative law judge awards for birth-related
297 neurological injuries; notice of award.—
298 (1) Upon determining that an infant has sustained a birth
299 related neurological injury and that obstetrical services were
300 delivered by a participating physician at the birth, the
301 administrative law judge shall make an award providing
302 compensation for the following items relative to such injury:
303 (a) Actual expenses
incurred since the date of birth
for
304 medically necessary and reasonable
:

305
1.
Medical and hospital
care and services;
,

306
2.
Habilitative
services;

and training,

307
3. Dental services;

308
4.
Family residential or custodial care
;
,

309
5.
Professional residential
care;
, and

310
6. Professional
custodial care
;

and service,

311
7.

for medically necessary
Drugs
;
,

312
8.
Special equipment
;
, and facilities,
and
313
9.

for
Related travel.
314
(b)
At a minimum, compensation must be provided for the
315 following actual expenses:
316 1.
Psychotherapeutic services for

A total annual benefit of

317
up to $10,000 for immediate
family members
and other relatives

318 who
have resided

reside
with the
participant, which are

infant

319
for psychotherapeutic services
obtained from
a psychiatrist

320
licensed under chapter 458 or chapter 459, a provider

providers

321 licensed under chapter 490 or chapter 491
, or a psychiatrist or

322
provider who has equivalent licensure by another jurisdiction.

323
This benefit for such family members and relatives shall be up

324
to a total of $10,000 annually during the participant’s lifetime

325
and up to a total of $20,000 subsequent to the participant’s

326
death
.
327 2. For the life of the
participant

child
, providing
family

328
members

parents or legal guardians
with a reliable method of
329
transporting

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

332
necessary 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
336 transportation assistance based on the
participant’s

child’s
age
337 or weight. The plan must replace any
vehicle

vans
purchased by
338 the plan every 7 years or 150,000 miles, whichever comes first.
339 3. Housing assistance of up to $100,000 for the life of the
340
participant

child
, including
, but not limited to, a down payment

341
on a new home, moving expenses, and
home construction and
342 modification costs.
343
4. Legal costs associated with establishing and maintaining

344
guardianship for a participant.

345
(c)1. The costs of a health insurance policy or health

346
maintenance contract that provides major medical or similar

347
comprehensive health insurance coverage for the participant

348
obtained pursuant to subsection (3), including, but not limited

349
to, the premium and out-of-pocket costs. For participants

350
enrolled in the state Medicaid program, the plan must reimburse

351
fee-for-service paid claims and capitation payments, as

352
applicable, for services provided to such participants pursuant

353
to this section and for the administrative and support costs

354
associated with the provided medical assistance. Such funds

355
shall be credited to the Agency for Health Care Administration’s

356
Medical Care Trust Fund.

357
2. By December 31, 2026, the plan shall reimburse any

358
participant for reasonable, medically necessary care received by

359
the participant on or before June 30, 2026, which was reduced or

360
not paid by the plan because such participant did not have

361
comprehensive or major medical health insurance coverage through

362
an insurer or a health maintenance organization.

363
(d)
(b)
However, the following expenses are not subject to
364 compensation:
365 1. Expenses for items or services that the
participant

366
infant
has received, or is entitled to receive, under the laws
367 of any state or the Federal Government, except to the extent
368 such exclusion may be prohibited by federal law.
369 2. Expenses for items or services that the
participant

370
infant
has received, or is contractually entitled to receive,
371 from any prepaid health plan, health maintenance organization,
372 or other private insuring entity.
373 3. Expenses for which the
participant

infant
has received
374 reimbursement, or for which the
participant

infant
is entitled
375 to receive reimbursement, under the laws of any state or the
376 Federal Government, except to the extent such exclusion may be
377 prohibited by federal law.
378 4. Expenses for which the
participant

infant
has received
379 reimbursement, or for which the
participant

infant
is
380 contractually entitled to receive reimbursement, pursuant to the
381 provisions of any health or sickness insurance policy or other
382 private insurance program.
383
5. Expenses for family residential or custodial care

384
provided by a family member while:

385
a. Care and supervision of the participant is

386
simultaneously being provided by another person or entity; or

387
b. The family member receives compensation from another

388
source for work performed during the same time for which

389
compensation 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
392 community for similar treatment of injured persons when such
393 treatment is paid for by the injured person.
394
(f)1. A family member

The parents or legal guardians

395 receiving benefits under the plan may file a petition with the
396 division
of Administrative Hearings
to dispute the amount of
397 actual expenses reimbursed or a denial of reimbursement.
398
2. In the case of an alleged overpayment of an expense

399
reimbursement by the association to a family member, if the

400
family member does not agree that an overpayment has occurred,

401
the association may file a petition for division review of the

402
overpayment for a determination of the amount, if any, to be

403
recouped by the association.

404
(g)1.
(d)1.a.
Periodic payments of an award to the
family

405
members

parents or legal guardians
of the
participant

infant

406
found to have sustained a birth-related neurological injury
,
407 which award may not exceed $100,000. However, at the discretion
408 of the administrative law judge, such award may be made in a
409 lump sum. Beginning on January 1, 2021, the award may not exceed
410 $250,000, and each January 1 thereafter, the maximum award
411 authorized 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.

419 2.
a.
Death benefit for the
participant

infant
in an amount
420 of $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
430 filing of a claim under ss. 766.301-766.316, including
431 reasonable
attorney

attorney’s
fees, which shall be subject to
432 the approval and award of the administrative law judge. In
433 determining an award for
attorney

attorney’s
fees, the
434 administrative law judge shall consider the following factors:
435 1. The time and labor required, the novelty and difficulty
436 of the questions involved, and the skill requisite to perform
437 the legal services properly.
438 2. The fee customarily charged in the locality for similar
439 legal services.
440 3. The time limitations imposed by the claimant or the
441 circumstances.
442 4. The nature and length of the professional relationship
443 with the claimant.
444 5. The experience, reputation, and ability of the lawyer or
445 lawyers performing services.
446 6. The contingency or certainty of a fee.
447
448
If there is

Should there be
a final determination of
449 compensability, and the claimants accept an award under this
450 section, the claimants are not liable for any expenses,
451 including attorney fees, incurred in connection with the filing
452 of a claim under ss. 766.301-766.316 other than those expenses
453 awarded under this section.
454 (2) The award shall require the immediate payment of
455 expenses previously incurred and shall require that future
456 expenses be paid as incurred.
457
(3) A family member must continuously maintain a health

458
insurance policy or health maintenance contract that provides

459
comprehensive major medical health insurance coverage for the

460
participant.

461
(a) If the participant does not have such coverage at the

462
time of entry of a final order by an administrative law judge

463
approving a claim for compensation, the family member must

464
obtain coverage within 60 days after entry of such order or

465
apply for Medicaid coverage within 30 days after entry of such

466
order.

467
(b) If the participant is determined to be ineligible for

468
Medicaid, the family member must obtain other coverage within 60

469
days after receiving the Medicaid application denial.

470
(c) A family member of an individual who is a participant

471
on June 30, 2026, must obtain the required coverage for the

472
participant by January 1, 2027.

473
(4)
(3)
A copy of the award shall be sent immediately by
474 registered or certified mail to each person served with a copy
475 of the petition under s. 766.305(2).
476 Section 7. Section 766.314, Florida Statutes, is amended to
477 read:
478 766.314 Assessments; plan of operation.—
479 (1) The assessments established
under

pursuant to
this
480 section shall be used to finance the Florida Birth-Related
481 Neurological Injury Compensation Plan.
482 (2) The assessments and appropriations dedicated to the
483 plan shall be administered by the Florida Birth-Related
484 Neurological Injury Compensation Association established in s.
485 766.315, in accordance with the following requirements:
486 (a)
On or before July 1, 1988,
The directors of the
487 association shall submit to the
office

Department of Insurance

488 for review
and approval
a plan of operation
and any amendment

489
thereto
which shall provide for the efficient administration of
490 the plan and for prompt processing of claims against and awards
491 made on behalf of the plan.
492
(b)
The plan of operation
must

shall
include provision for:
493 1. Establishment of necessary facilities;
494 2. Management of the funds collected on behalf of the plan;
495 3. Processing of claims against the plan;
496 4. Assessment of the persons and entities listed in
497 subsections (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)
;
500
5. A fraud and overpayment prevention and detection

501
program;
and
502
6.
5.
Any other matters necessary for the efficient
503 operation of the
Florida
Birth-Related Neurological Injury
504 Compensation 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
510 funds collected by the association and any income therefrom
511 shall be disbursed only for the payment of awards under ss.
512 766.301-766.316 and for the payment of the reasonable expenses
513 of administering the plan.
514 (4) The following persons and entities shall pay into the
515 association
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
518 under chapter 395 shall pay an
initial
assessment of $50 per
519 infant delivered in
that

the
hospital
during the prior calendar

520
year
, as reported to the Agency for Health Care Administration;
521 provided, however, that a hospital owned or operated by the
522 state or a county, special taxing district, or other political
523 subdivision of the state shall not be required to pay
the

524
initial assessment or
any assessment required by
this subsection

525
or
subsection
(7)

(5)
. The term “infant delivered” includes live
526 births and not stillbirths, but the term does not include
527 infants delivered by employees or agents of the board of
528 trustees of a state university, those born in a teaching
529 hospital as defined in s. 408.07, or those born in a teaching
530 hospital as defined in s. 395.806 that have been deemed by the
531 association as being exempt from assessments since fiscal year
532 1997 to fiscal year 2001. The
initial
assessment and any
533 assessment imposed pursuant to subsection
(7)

(5)
may not
534 include any infant born to a charity patient (as defined by rule
535 of the Agency for Health Care Administration) or born to a
536 patient for whom the hospital receives Medicaid reimbursement,
537 if the sum of the annual charges for charity patients plus the
538 annual Medicaid contractuals of the hospital exceeds 10 percent
539 of the total annual gross operating revenues of the hospital.
540 The hospital is responsible for documenting, to the satisfaction
541 of the association, the exclusion of any birth from the
542 computation of the assessment. Upon demonstration of financial
543 need by a hospital, the association may provide for installment
544 payments of assessments.
545
2. Assessments are due, and hospitals shall pay all

546
assessments required under this section, by December 31 of the

547
calendar year immediately subsequent to the birth year.

548 (b)1.
a.

On or before October 15, 1988,
All physicians
549 licensed pursuant to chapter 458 or chapter 459
as of October 1,

550
1988
, other than participating physicians, shall be assessed an
551
annual

initial
assessment of $250
.
,

552
b. Payment for all assessments required under this

553
paragraph 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).

562
2.
4.
However, if the physician is a physician specified in
563 this subparagraph, the assessment is not applicable:
564 a. A resident physician, assistant resident physician, or
565 intern in an approved postgraduate training program, as defined
566 by the Board of Medicine or the Board of Osteopathic Medicine by
567 rule;
568 b. A retired physician who has withdrawn from the practice
569 of medicine but who maintains an active license as evidenced by
570 an affidavit filed with the Department of Health. Prior to
571 reentering the practice of medicine in this state, a retired
572 physician as herein defined must notify the Board of Medicine or
573 the Board of Osteopathic Medicine and pay the appropriate
574 assessments pursuant to this section;
575 c. A physician who holds a limited license pursuant to s.
576 458.317 and who is not being compensated for medical services;
577 d. A physician who is employed full time by the United
578 States Department of Veterans Affairs and whose practice is
579 confined to United States Department of Veterans Affairs
580 hospitals; or
581 e. A physician who is a member of the Armed Forces of the
582 United States and who meets the requirements of s. 456.024.
583 f. A physician who is employed full time by the State of
584 Florida and whose practice is confined to state-owned
585 correctional institutions, a county health department, or state
586 owned mental health or developmental services facilities, or who
587 is employed full time by the Department of Health.
588 (c)
1.

On or before December 1, 1988,
Each physician
589 licensed pursuant to chapter 458 or chapter 459 who wishes to
590 participate in the Florida Birth-Related Neurological Injury
591 Compensation Plan and who otherwise qualifies as a participating
592 physician under ss. 766.301-766.316 shall pay an
annual

initial

593 assessment of $5,000
and any assessment required under paragraph

594
(7)(c), if assessed
. However, if the physician is either a
595 resident physician, assistant resident physician, or intern in
596 an approved postgraduate training program, as defined by the
597 Board of Medicine or the Board of Osteopathic Medicine by rule,
598 and is supervised in accordance with program requirements
599 established by the Accreditation Council for Graduate Medical
600 Education or the American Osteopathic Association by a physician
601 who is participating in the plan, such resident physician,
602 assistant resident physician, or intern is deemed to be a
603 participating physician without the payment of the assessment.
604 Participating physicians also include any employee of the board
605 of trustees of a state university who has paid the assessment
606 required by this paragraph and
, if assessed,
paragraph
(7)(c)

607
(5)(a)
, and any certified nurse midwife supervised by such
608 employee. Participating physicians include any certified nurse
609 midwife who has paid 50 percent of the physician assessment
610 required by this paragraph and
, if assessed,
paragraph
(7)(c),

611
(5)(a)
and who is supervised by a participating physician who
612 has paid the assessment required by this paragraph and
, if

613
assessed,
paragraph
(7)(c)

(5)(a)
. Supervision for nurse
614 midwives shall require that the supervising physician will be
615 easily available and have a prearranged plan of treatment for
616 specified patient problems which the supervised certified nurse
617 midwife may carry out in the absence of any complicating
618 features.
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).

625
2. Payment of assessments required by this paragraph is due

626
on or before December 31 of each year for qualification as a

627
participating physician during the next calendar year. If

628
payment of the assessments is received by the association on or

629
before January 31 of any calendar year, the physician shall

630
qualify as a participating physician for that entire calendar

631
year. If the payment is received after January 31, the physician

632
shall qualify as a participating physician for that calendar

633
year only from the date the payment was received by the

634
association.

635 (d) Any hospital located in a county with a population in
636 excess of 1.1 million as of January 1, 2003, as determined by
637 the Agency for Health Care Administration under the Health Care
638 Responsibility Act, may elect to pay the
assessments required by

639
paragraph (c)

fee
for the participating physician and the
640 certified nurse midwife if the hospital first determines that
641 the primary motivating purpose for making such payment is to
642 ensure coverage for the hospital’s patients under the provisions
643 of ss. 766.301-766.316; however, no hospital may restrict any
644 participating physician or nurse midwife, directly or
645 indirectly, from being on the staff of hospitals other than the
646 staff 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
719 required by this section, except initial assessments of
720 physicians
newly
licensed by the Department of Health,
which

721
assessments will be made by the Department of Health,
and except
722 assessments of casualty insurers pursuant to
paragraph (7)(c)

723
subparagraph (5)(c)1.
, which assessments will be made by the
724 office
of Insurance Regulation
. The Department of Health shall
725 provide the association, in an electronic format, with a monthly
726 report of the names and license numbers of all physicians
727 licensed under chapter 458 or chapter 459.
728 (b)1. The association may enforce collection of assessments
729 required to be paid pursuant to ss. 766.301-766.316 by suit
730 filed in county court, or in circuit court if the amount due
731 could exceed the jurisdictional limits of county court. The
732 association is entitled to an award of attorney fees, costs, and
733 interest upon the entry of a judgment against a physician for
734 failure to pay such assessment, with such interest accruing
735 until paid. Notwithstanding chapters 47 and 48, the association
736 may file such suit in either Leon County or the county of the
737 residence of the defendant. The association shall notify the
738 Department of Health and the applicable board of any unpaid
739 final judgment against a physician within 7 days after the entry
740 of final judgment.
741 2. The Department of Health, upon notification by the
742 association that an assessment has not been paid and that there
743 is an unsatisfied judgment against a physician, shall refuse to
744 renew any license issued to such physician under chapter 458 or
745 chapter 459 until the association notifies the Department of
746 Health that the judgment is satisfied in full.
747 (c) The Agency for Health Care Administration shall, upon
748 notification by the association that an assessment has not been
749 timely paid, enforce collection of such assessments required to
750 be paid by hospitals pursuant to ss. 766.301-766.316. Failure of
751 a hospital to pay such assessment is grounds for disciplinary
752 action pursuant to s. 395.1065 notwithstanding any law to the
753 contrary.
754
(6)
(9)
(a) Within 60 days after a claim is filed, the
755 association shall estimate the present value of the total cost
756 of the claim, including the estimated amount to be paid to the
757 claimant, the claimant’s attorney, the attorney’s fees of the
758 association incident to the claim, and any other expenses that
759 are reasonably anticipated to be incurred by the association in
760 connection with the adjudication and payment of the claim. For
761 purposes of this estimate, the association should include the
762 maximum benefits for noneconomic damages.
763 (b) The association shall revise these estimates quarterly
764 based upon the actual costs incurred and any additional
765 information that becomes available to the association since the
766 last review of this estimate. The estimate shall be reduced by
767 any amounts paid by the association that were included in the
768 current estimate.
The association must submit such quarterly

769
estimates to the office within 15 business days after

770
completion.

771 (c)
After the revisions of estimates required under

772
paragraph (b), each quarter, the association shall calculate

773
whether the plan is actuarially sound. If the association’s

774
calculation indicates that the plan is not actuarially sound,

775
the association shall immediately notify the office as described

776
in subsection (7). The office must review the association’s

777
calculations and, within 60 days after the association’s

778
notification, determine whether to initiate an actuarial

779
valuation as described in subsection (7), and notify the

780
association of its determination. At a minimum, the office shall

781
make its determination based on the degree to which the

782
association’s calculations indicate that the plan is not

783
actuarially sound, the direction and consistency of recent

784
trends in the calculations of the plan’s actuarial soundness,

785
and the length of time since the most recent actuarial valuation

786
conducted by the office and until the next biennial valuation.

787
The office shall initiate such actuarial valuation within 30

788
days after its determination that there is a need for a

789
valuation.

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
822 assets and liabilities of the plan
at a minimum

no less

823
frequently than
biennially
on or before December 31 of even

824
numbered years and as provided in subsection (6). Such valuation

825
shall be based on the assets and liabilities of the plan for the

826
calendar year before the year in which the actuarial valuation

827
is due. The office shall also determine whether the plan has

828
adequate estimated cash flow for the following fiscal year,

829
whether, based on the actuarial valuation, the plan is

830
actuarially sound, and if not, whether the plan is likely to

831
return 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

838
cash flow for the following fiscal year pursuant to the review

839
in paragraph (a), the office shall authorize transfers from the

840
Insurance Regulatory Trust Fund to the association within 30

841
calendar days. Cumulative transfers authorized under this

842
paragraph may not exceed $20 million over the life of the plan.

843
(c)
(b)
If the office
of Insurance Regulation
finds that the
844 plan
is not likely to return to actuarial soundness before the

845
next biennial review pursuant to the review in paragraph (a),

846
the office shall, within 60 calendar days after this finding,

847
order one or more of the following actions:

848
1.

Require each entity licensed to issue casualty insurance

849
as defined in s. 624.605(1)(b), (k), and (q) to pay into the

850
association an annual assessment that is calculated to generate

851
a total amount no greater than the amount required to achieve

852
actuarial soundness of the plan within 5 years after the date of

853
the order, subject to the limitations of this subparagraph.

854
a.

Such assessments shall be made on the basis of net

855
direct premiums written for the business activity which forms

856
the basis for each such entity’s inclusion as a funding source

857
for the plan in the state during the prior year ending December

858
31, as reported to the office, and shall be in the proportion

859
that the net direct premiums written by each carrier on account

860
of the business activity forming the basis for its inclusion in

861
the plan bears to the aggregate net direct premiums for all such

862
business activity written in this state by all such entities.

863
b.

No entity shall be individually liable for an annual

864
assessment in excess of 0.25 percent of that entity’s net direct

865
premiums written.

866
c.

Casualty insurance carriers shall be entitled to recover

867
their assessments through a surcharge on future policies, a rate

868
increase applicable prospectively, or a combination of the two.

869
d.

An assessment under this subparagraph must not extend 5

870
years after the date of the order.

871
2.

If actuarial soundness cannot be achieved after using

872
the remedy in subparagraph 1., increase the assessments

873
specified in subsection (4) on a proportional basis that is

874
calculated to generate a total amount no greater than the amount

875
required to maintain the plan on an actuarially sound basis.

876
(d)

If the office finds that the plan is not actuarially

877
sound pursuant to the review in paragraph (a), the plan shall

878
provide the office with quarterly reports projecting the plan’s

879
financial condition and, if assessments were ordered by the

880
office under this subsection, projected revenues for such

881
assessments.

882
(e)

If the office finds that the plan is not actuarially

883
sound and the remedies provided under this subsection are

884
insufficient to reestablish the actuarial soundness of the plan,

885
the association shall, within 5 days after such finding, notify

886
the Governor, the President of the Senate, the Speaker of the

887
House of Representatives, and the office. If the notice is

888
issued, the association may not accept any new claims without

889
express authority from the Legislature. This paragraph does not

890
preclude the association from accepting any claim if the injury

891
occurred 18 months or more before the effective date of this

892
suspension.

893
(f) If any person is precluded from asserting a claim

894
against the association because of paragraph (e), the plan shall

895
not constitute the exclusive remedy for such person, his or her

896
personal 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.

923 Section 8. Present subsections (5) through (8) of section
924 766.315, Florida Statutes, are redesignated as subsections (6)
925 through (9), respectively, a new subsection (5) is added to that
926 section, and subsection (1), paragraph (e) of present subsection
927 (5), and present subsections (7) and (8) of that section are
928 amended, to read:
929 766.315 Florida Birth-Related Neurological Injury
930 Compensation Association; board of directors; notice of
931 meetings; report.—
932 (1)(a) The Florida Birth-Related Neurological Injury
933 Compensation Plan shall be governed by a board of seven
934 directors which shall be known as the Florida Birth-Related
935 Neurological Injury Compensation Association. The association is
936 not a state agency, board, or commission. Notwithstanding the
937 provision of s. 15.03, the association is authorized to use the
938 state seal.
939 (b) The directors shall be appointed for staggered terms of
940 3 years or until their successors are appointed and have
941 qualified; however, a director may not serve for more than 6
942 consecutive years.
943 (c) The directors shall be appointed by the Chief Financial
944 Officer as follows:
945 1. One citizen representative who is not affiliated with
946 any of the groups identified in subparagraphs 2.-7.
947 2. One representative of participating physicians.
948 3. One representative of hospitals.
949 4. One representative of casualty insurers.
950 5. One representative of physicians other than
951 participating physicians.
952 6. One
family member of a participant

parent or legal

953
guardian representative of an injured infant under the plan
.
954 7. One representative of an advocacy organization for
955 children with disabilities.
956
(5) Notwithstanding this section, the board of directors

957
may not create new benefits or expand existing benefits that

958
result in additional costs to the plan if the plan is operating

959
at an annual cash flow deficit, as documented in the plan’s

960
audited financial statements for the prior fiscal year. This

961
subsection does not prohibit the plan from providing benefits

962
set forth in s. 766.31.

963
(6)
(5)

964 (e) Annually, the association shall furnish audited
965 financial reports to any plan participant upon request, to the
966 office
of Insurance Regulation of the Financial Services

967
Commission
, and to the Joint Legislative Auditing Committee. The
968 reports must be prepared in accordance with
generally
accepted
969
auditing standards

accounting procedures
and must include such
970 information as may be required by the office
of Insurance

971
Regulation
or the Joint Legislative Auditing Committee. At any
972 time determined to be necessary, the office
of Insurance

973
Regulation
or the Joint Legislative Auditing Committee may
974 conduct an audit of the plan.
975
(8)
(7)
The association shall publish a report on its
976 website by January 1 of each year. The report
must

shall
include
977
all of the following
:
978 (a) The names and terms of each board member and executive
979 staff member.
980 (b) The amount of compensation paid to each association
981 employee
or independent contractor
.
982 (c) A summary of reimbursement disputes and resolutions.
983 (d) A list of expenditures for attorney fees and lobbying
984 fees.
985 (e) Other expenses to oppose each plan claim. Any personal
986 identifying information of the parent, legal guardian, or child
987 involved in the claim must be removed from this list.
988
(9)
(8)
By November 1 of each year, the association shall
989 submit a report to the Governor, the President of the Senate,
990 the Speaker of the House of Representatives, and the Chief
991 Financial Officer. The report must include
all of the following
:
992 (a) The number of petitions filed for compensation with the
993 division, the number of claimants awarded compensation, the
994 number of claimants denied compensation, and the reasons for the
995 denial of compensation.
996 (b) The number and dollar amount of paid and denied
997 compensation for expenses by category and the reasons for any
998 denied 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
creat
e
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.