Bill Text: FL S1050 | 2022 | Regular Session | Introduced


Bill Title: Florida Birth-Related Neurological Injury Compensation Plan

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Failed) 2022-03-14 - Died in Banking and Insurance [S1050 Detail]

Download: Florida-2022-S1050-Introduced.html
       Florida Senate - 2022                                    SB 1050
       
       
        
       By Senator Book
       
       
       
       
       
       32-00875A-22                                          20221050__
    1                        A bill to be entitled                      
    2         An act relating to the Florida Birth-Related
    3         Neurological Injury Compensation Plan; amending s.
    4         766.301, F.S.; revising legislative intent; amending
    5         s. 766.302, F.S.; revising the definition of the term
    6         “family residential or custodial care”; amending s.
    7         766.303, F.S.; providing that the plan is not intended
    8         to serve as the payor of last resort for services
    9         under the plan; prohibiting the Florida Birth-Related
   10         Neurological Injury Compensation Association from
   11         holding itself out as such; amending s. 766.31, F.S.;
   12         revising requirements for the award of compensation
   13         for claims under the plan; requiring the plan to
   14         provide specified additional annual payments to
   15         parents or legal guardians of children covered under
   16         the plan; authorizing the plan to make such payments
   17         in a lump sum or periodically as designated by
   18         eligible parents or guardians; revising eligibility
   19         requirements for certain retroactive payments to
   20         parents or legal guardians; requiring that awards
   21         include specified payments for legal costs associated
   22         with establishing a guardianship for a child under the
   23         plan who is 18 years of age or older; providing
   24         retroactive applicability; requiring the plan to make
   25         certain retroactive payments to eligible parents or
   26         guardians; authorizing the plan to make such payments
   27         in a lump sum or periodically as designated by
   28         eligible parents or legal guardians; requiring the
   29         plan to make the payments by a specified date;
   30         amending s. 766.315, F.S.; providing that contracts
   31         entered into by the association to administer the plan
   32         are subject to ch. 287, F.S., relating to state
   33         procurement of personal property and services;
   34         providing an effective date.
   35          
   36  Be It Enacted by the Legislature of the State of Florida:
   37  
   38         Section 1. Subsection (2) of section 766.301, Florida
   39  Statutes, is amended to read:
   40         766.301 Legislative findings and intent.—
   41         (2) It is the intent of the Legislature to provide
   42  compensation, on a no-fault basis, for a limited class of
   43  catastrophic injuries that result in unusually high costs for
   44  custodial care and rehabilitation. This plan applies shall apply
   45  only to birth-related neurological injuries and is not intended
   46  to serve as the payor of last resort for claims arising out of
   47  such injuries.
   48         Section 2. Subsection (10) of section 766.302, Florida
   49  Statutes, is amended to read:
   50         766.302 Definitions; ss. 766.301-766.316.—As used in ss.
   51  766.301-766.316, the term:
   52         (10) “Family residential or custodial care” means care
   53  normally rendered by trained professional attendants which is
   54  beyond the scope of child care duties, but which is provided by
   55  family members. Family members who provide nonprofessional
   56  residential or custodial care may not be compensated under this
   57  act for care that falls within the scope of child care duties
   58  and other services normally and gratuitously provided by family
   59  members. Family residential or custodial care must shall be
   60  performed only at the direction and control of a physician when
   61  such care is medically necessary. Reasonable charges for
   62  expenses for family residential or custodial care provided by a
   63  family member are shall be determined as follows:
   64         (a) If the family member is not employed, the per-hour
   65  value equals the federal minimum hourly wage.
   66         (b) If the family member is employed and elects to leave
   67  that employment to provide such care, the per-hour value of that
   68  care shall equal the rates established by Medicaid for private
   69  duty services provided by a home health aide. A family member or
   70  a combination of family members providing care in accordance
   71  with this definition may not be compensated for more than a
   72  total of 10 hours per day. Family care is in lieu of
   73  professional residential or custodial care, and no professional
   74  residential or custodial care may not be awarded for the period
   75  of time during the day that family care is being provided.
   76         (c) The award of family residential or custodial care as
   77  defined in this section may shall not be included in the current
   78  estimates for purposes of s. 766.314(9)(c).
   79         Section 3. Present subsection (4) of section 766.303,
   80  Florida Statutes, is redesignated as subsection (5), and a new
   81  subsection (4) is added to that section, to read:
   82         766.303 Florida Birth-Related Neurological Injury
   83  Compensation Plan; exclusiveness of remedy.—
   84         (4) The plan is not intended to serve as the payor of last
   85  resort, and the association may not hold itself out as such.
   86         Section 4. Paragraphs (a) and (d) of subsection (1) of
   87  section 766.31, Florida Statutes, are amended, and paragraph (f)
   88  is added to that subsection, to read:
   89         766.31 Administrative law judge awards for birth-related
   90  neurological injuries; notice of award.—
   91         (1) Upon determining that an infant has sustained a birth
   92  related neurological injury and that obstetrical services were
   93  delivered by a participating physician at the birth, the
   94  administrative law judge shall make an award providing
   95  compensation for the following items relative to such injury:
   96         (a) Actual expenses for medically necessary and reasonable
   97  medical, dental, and hospital care;, habilitative services and
   98  training;, family residential or custodial care;, professional
   99  residential, and custodial care and service; therapeutic
  100  services;, for medically necessary drugs, special equipment, and
  101  facilities;, and for related travel. At a minimum, compensation
  102  must be provided for the following actual expenses:
  103         1. A total annual benefit of up to $10,000 for immediate
  104  family members who reside with the infant for psychotherapeutic
  105  services obtained from providers licensed under chapter 458,
  106  chapter 459, chapter 490, or chapter 491. In the event of the
  107  infant’s death, the plan must continue to provide the total
  108  annual benefit to immediate family members who resided with the
  109  infant for up to 12 months after the infant’s death.
  110         2. For the life of the child, providing parents or legal
  111  guardians with a reliable method of transportation for the care
  112  of the child or reimbursing the cost of upgrading an existing
  113  vehicle to accommodate the child’s needs when it becomes
  114  medically necessary for wheelchair transportation. The mode of
  115  transportation must take into account the special accommodations
  116  required for the specific child. The plan may not limit such
  117  transportation assistance based on the child’s age or weight.
  118  The plan must replace any vans purchased by the plan every 7
  119  years or 150,000 miles, whichever comes first.
  120         3. Housing assistance of up to $100,000 for the life of the
  121  child, including home construction and modification costs. The
  122  plan shall provide up to an additional $30,000 to cover costs
  123  for devices that will ensure continuous light, heat, and power
  124  in the home for the care of the child, including, but not
  125  limited to, a generator or another alternative power source.
  126  Out-of-pocket expenses incurred by the parent or legal guardian
  127  before July 1, 2022, for home construction or modification or
  128  devices covered under this subparagraph are eligible for
  129  reimbursement in accordance with the applicable maximum
  130  expenditure limit.
  131         4.Compensation for residential or custodial care provided
  132  by a family member or combination of family members to the child
  133  under the plan. Such compensation must be paid at the same rate
  134  the plan pays for such services when provided by a contracted
  135  provider. The plan may not limit the hours a family member or
  136  combination of family members may be compensated for providing
  137  residential or custodial care if such care is deemed medically
  138  necessary.
  139         (d)1.a. Periodic payments or, at the discretion of the
  140  administrative law judge, a lump sum payment of an award to the
  141  parents or legal guardians of the infant found to have sustained
  142  a birth-related neurological injury, which award may not exceed
  143  $100,000. However, at the discretion of the administrative law
  144  judge, such award may be made in a lump sum. Beginning on
  145  January 1, 2021, the award may not exceed $250,000, adjusted and
  146  each January 1 thereafter to increase, the maximum award
  147  authorized under this paragraph shall increase by 3 percent.
  148  With each 3 percent increase, parents or legal guardians who
  149  received an award before the increase and whose child currently
  150  receives benefits under the plan must receive an additional
  151  payment in an amount equal to the 3 percent increase. This
  152  additional payment may be made in a lump sum or in periodic
  153  payments as designated by the parents or legal guardians.
  154         b. Parents or legal guardians who received an award
  155  pursuant to this section before January 1, 2021, and whose child
  156  currently receives benefits under the plan must receive a
  157  retroactive payment in an amount sufficient to bring the total
  158  award paid to the parents or legal guardians pursuant to sub
  159  subparagraph a. to $250,000. This additional payment may be made
  160  in a lump sum or in periodic payments as designated by the
  161  parents or legal guardians and must be paid by July 1, 2021.
  162         2.a. Death benefit for the infant in an amount of $50,000.
  163         b. Parents or legal guardians who received an award
  164  pursuant to this section, and whose child died since the
  165  inception of the program, must receive a retroactive payment in
  166  an amount sufficient to bring the total award paid to the
  167  parents or legal guardians pursuant to sub-subparagraph a. to
  168  $50,000. This additional payment may be made in a lump sum or in
  169  periodic payments as designated by the parents or legal
  170  guardians and must be paid by July 1, 2021.
  171         (f)Payment of up to $10,000 for legal costs associated
  172  with establishing a guardianship for a child under the plan who
  173  is 18 years of age or older.
  174  
  175  Should there be a final determination of compensability, and the
  176  claimants accept an award under this section, the claimants are
  177  shall not be liable for any expenses, including attorney
  178  attorney’s fees, incurred in connection with the filing of a
  179  claim under ss. 766.301-766.316 other than those expenses
  180  awarded under this section.
  181         Section 5. The amendments made to s. 766.31(1)(a) and
  182  (d)1., Florida Statutes, by this act apply retroactively. The
  183  Florida Birth-Related Neurological Injury Compensation Plan must
  184  provide the additional payment required under s.
  185  766.31(1)(d)1.b., Florida Statutes, to parents and legal
  186  guardians who are eligible for the additional payment under that
  187  sub-subparagraph as a result of the amendment made by this act.
  188  The additional payment may be made in a lump sum or in periodic
  189  payments as designated by the parents or legal guardians and
  190  must be paid by July 1, 2022.
  191         Section 6. Paragraph (h) of subsection (4) of section
  192  766.315, Florida Statutes, is amended to read:
  193         766.315 Florida Birth-Related Neurological Injury
  194  Compensation Association; board of directors; notice of
  195  meetings; report.—
  196         (4) The board of directors has the power to:
  197         (h) Enter into such contracts as are necessary or proper to
  198  administer the plan, subject to the requirements of chapter 287.
  199         Section 7. This act shall take effect upon becoming a law.

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