(1) The assessments established pursuant to this section shall be used to finance the Florida Birth-Related Neurological Injury Compensation Plan.
(2) The assessments and appropriations dedicated to the plan shall be administered by the Florida Birth-Related Neurological Injury Compensation Association established in s. 766.315, in accordance with the following requirements:
(a) On or before July 1, 1988, the directors of the association shall submit to the 1Department of Insurance for review a plan of operation which shall provide for the efficient administration of the plan and for prompt processing of claims against and awards made on behalf of the plan. The plan of operation shall include provision for:
1. Establishment of necessary facilities;
2. Management of the funds collected on behalf of the plan;
3. Processing of claims against the plan;
4. Assessment of the persons and entities listed in subsections (4) and (5) to pay awards and expenses, which assessments shall be on an actuarially sound basis subject to the limits set forth in subsections (4) and (5); and
5. Any other matters necessary for the efficient operation of the birth-related neurological injury compensation plan.
(b) Amendments to the plan of operation may be made by the directors of the plan, subject to the approval of the Office of Insurance Regulation of the Financial Services Commission.
(3) All assessments shall be deposited with the Florida Birth-Related Neurological Injury Compensation Association. The funds collected by the association and any income therefrom shall be disbursed only for the payment of awards under ss. 766.301-766.316 and for the payment of the reasonable expenses of administering the plan.
(4) The following persons and entities shall pay into the association an initial assessment in accordance with the plan of operation:
(a) On or before October 1, 1988, each hospital licensed under chapter 395 shall pay an initial assessment of $50 per infant delivered in the hospital during the prior calendar year, as reported to the Agency for Health Care Administration; provided, however, that a hospital owned or operated by the state or a county, special taxing district, or other political subdivision of the state shall not be required to pay the initial assessment or any assessment required by subsection (5). The term “infant delivered” includes live births and not stillbirths, but the term does not include infants delivered by employees or agents of the board of trustees of a state university, those born in a teaching hospital as defined in s. 408.07, 2or those born in a teaching hospital as defined in s. 395.806 that have been deemed by the association as being exempt from assessments since fiscal year 1997 to fiscal year 2001. The initial assessment and any assessment imposed pursuant to subsection (5) may not include any infant born to a charity patient (as defined by rule of the Agency for Health Care Administration) or born to a patient for whom the hospital receives Medicaid reimbursement, if the sum of the annual charges for charity patients plus the annual Medicaid contractuals of the hospital exceeds 10 percent of the total annual gross operating revenues of the hospital. The hospital is responsible for documenting, to the satisfaction of the association, the exclusion of any birth from the computation of the assessment. Upon demonstration of financial need by a hospital, the association may provide for installment payments of assessments.
(b)1. On or before October 15, 1988, all physicians licensed pursuant to chapter 458 or chapter 459 as of October 1, 1988, other than participating physicians, shall be assessed an initial assessment of $250, which must be paid no later than December 1, 1988.
2. Any such physician who becomes licensed after September 30, 1988, and before January 1, 1989, shall pay into the association an initial assessment of $250 upon licensure.
3. Any such physician who becomes licensed on or after January 1, 1989, shall pay an initial assessment equal to the most recent assessment made pursuant to this paragraph, paragraph (5)(a), or paragraph (7)(b).
4. However, if the physician is a physician specified in this subparagraph, the assessment is not applicable:
a. A resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule;
b. A retired physician who has withdrawn from the practice of medicine but who maintains an active license as evidenced by an affidavit filed with the Department of Health. Prior to reentering the practice of medicine in this state, a retired physician as herein defined must notify the Board of Medicine or the Board of Osteopathic Medicine and pay the appropriate assessments pursuant to this section;
c. A physician who holds a limited license pursuant to s. 458.317 and who is not being compensated for medical services;
d. A physician who is employed full time by the United States Department of Veterans Affairs and whose practice is confined to United States Department of Veterans Affairs hospitals; or
e. A physician who is a member of the Armed Forces of the United States and who meets the requirements of s. 456.024.
f. A physician who is employed full time by the State of Florida and whose practice is confined to state-owned correctional institutions, a county health department, or state-owned mental health or developmental services facilities, or who is employed full time by the Department of Health.
(c) On or before December 1, 1988, each physician licensed pursuant to chapter 458 or chapter 459 who wishes to participate in the Florida Birth-Related Neurological Injury Compensation Plan and who otherwise qualifies as a participating physician under ss. 766.301-766.316 shall pay an initial assessment of $5,000. However, if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised in accordance with program requirements established by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment. Participating physicians also include any employee of the board of trustees of a state university who has paid the assessment required by this paragraph and paragraph (5)(a), and any certified nurse midwife supervised by such employee. Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features. Any physician who elects to participate in such plan on or after January 1, 1989, who was not a participating physician at the time of such election to participate and who otherwise qualifies as a participating physician under ss. 766.301-766.316 shall pay an additional initial assessment equal to the most recent assessment made pursuant to this paragraph, paragraph (5)(a), or paragraph (7)(b).
(d) Any hospital located in a county with a population in excess of 1.1 million as of January 1, 2003, as determined by the Agency for Health Care Administration under the Health Care Responsibility Act, may elect to pay the fee for the participating physician and the certified nurse midwife if the hospital first determines that the primary motivating purpose for making such payment is to ensure coverage for the hospital’s patients under the provisions of ss. 766.301-766.316; however, no hospital may restrict any participating physician or nurse midwife, directly or indirectly, from being on the staff of hospitals other than the staff of the hospital making the payment. Each hospital shall file with the association an affidavit setting forth specifically the reasons why the hospital elected to make the payment on behalf of each participating physician and certified nurse midwife. The payments authorized under this paragraph shall be in addition to the assessment set forth in paragraph (5)(a).
(5)(a) Beginning January 1, 1990, the persons and entities listed in paragraphs (4)(b) and (c), except those persons or entities who are specifically excluded from said provisions, as of the date determined in accordance with the plan of operation, taking into account persons licensed subsequent to the payment of the initial assessment, shall pay an annual assessment in the amount equal to the initial assessments provided in paragraphs (4)(b) and (c). If payment of the annual assessment by a physician is received by the association by January 31 of any calendar year, the physician shall qualify as a participating physician for that entire calendar year. If the payment is received after January 31 of any calendar year, the physician shall qualify as a participating physician for that calendar year only from the date the payment was received by the association. On January 1, 1991, and on each January 1 thereafter, the association shall determine the amount of additional assessments necessary pursuant to subsection (7), in the manner required by the plan of operation, subject to any increase determined to be necessary by the 3Office of Insurance Regulation pursuant to paragraph (7)(b). On July 1, 1991, and on each July 1 thereafter, the persons and entities listed in paragraphs (4)(b) and (c), except those persons or entities who are specifically excluded from said provisions, shall pay the additional assessments which were determined on January 1. Beginning January 1, 1990, the entities listed in paragraph (4)(a), including those licensed on or after October 1, 1988, shall pay an annual assessment of $50 per infant delivered during the prior calendar year. The additional assessments which were determined on January 1, 1991, pursuant to the provisions of subsection (7) shall not be due and payable by the entities listed in paragraph (4)(a) until July 1.
(b) If the assessments collected pursuant to subsection (4) and the appropriation of funds provided by s. 76, chapter 88-1, Laws of Florida, as amended by s. 41, chapter 88-277, Laws of Florida, to the plan from the Insurance Regulatory Trust Fund are insufficient to maintain the plan on an actuarially sound basis, there is hereby appropriated for transfer to the association from the Insurance Regulatory Trust Fund an additional amount of up to $20 million.
(c)1. Taking into account the assessments collected pursuant to subsection (4) and appropriations from the Insurance Regulatory Trust Fund, if required to maintain the plan on an actuarially sound basis, the Office of Insurance Regulation shall require each entity licensed to issue casualty insurance as defined in s. 624.605(1)(b), (k), and (q) to pay into the association an annual assessment in an amount determined by the office pursuant to paragraph (7)(a), in the manner required by the plan of operation.
2. All annual assessments shall be made on the basis of net direct premiums written for the business activity which forms the basis for each such entity’s inclusion as a funding source for the plan in the state during the prior year ending December 31, as reported to the Office of Insurance Regulation, and shall be in the proportion that the net direct premiums written by each carrier on account of the business activity forming the basis for its inclusion in the plan bears to the aggregate net direct premiums for all such business activity written in this state by all such entities.
3. No entity listed in this paragraph shall be individually liable for an annual assessment in excess of 0.25 percent of that entity’s net direct premiums written.
4. Casualty insurance carriers shall be entitled to recover their initial and annual assessments through a surcharge on future policies, a rate increase applicable prospectively, or a combination of the two.
(6)(a) The association shall make all assessments required by this section, except initial assessments of physicians licensed by the Department of Health, and except assessments of casualty insurers pursuant to subparagraph (5)(c)1., which assessments will be made by the Office of Insurance Regulation. The Department of Health shall provide the association, in an electronic format, with a monthly report of the names and license numbers of all physicians licensed under chapter 458 or chapter 459.
(b)1. The association may enforce collection of assessments required to be paid pursuant to ss. 766.301-766.316 by suit filed in county court, or in circuit court if the amount due could exceed the jurisdictional limits of county court. The association is entitled to an award of attorney fees, costs, and interest upon the entry of a judgment against a physician for failure to pay such assessment, with such interest accruing until paid. Notwithstanding chapters 47 and 48, the association may file such suit in either Leon County or the county of the residence of the defendant. The association shall notify the Department of Health and the applicable board of any unpaid final judgment against a physician within 7 days after the entry of final judgment.
2. The Department of Health, upon notification by the association that an assessment has not been paid and that there is an unsatisfied judgment against a physician, shall refuse to renew any license issued to such physician under chapter 458 or chapter 459 until the association notifies the Department of Health that the judgment is satisfied in full.
(c) The Agency for Health Care Administration shall, upon notification by the association that an assessment has not been timely paid, enforce collection of such assessments required to be paid by hospitals pursuant to ss. 766.301-766.316. Failure of a hospital to pay such assessment is grounds for disciplinary action pursuant to s. 395.1065 notwithstanding any law to the contrary.
(7)(a) The Office of Insurance Regulation shall undertake an actuarial investigation of the requirements of the plan based on the plan’s experience in the first year of operation and any additional relevant information, including without limitation the assets and liabilities of the plan. Pursuant to such investigation, the Office of Insurance Regulation shall establish the rate of contribution of the entities listed in paragraph (5)(c) for the tax year beginning January 1, 1990. Following the initial valuation, the Office of Insurance Regulation shall cause an actuarial valuation to be made of the assets and liabilities of the plan no less frequently than biennially. Pursuant to the results of such valuations, the Office of Insurance Regulation shall prepare a statement as to the contribution rate applicable to the entities listed in paragraph (5)(c). However, at no time shall the rate be greater than 0.25 percent of net direct premiums written.
(b) If the Office of Insurance Regulation finds that the plan cannot be maintained on an actuarially sound basis based on the assessments and appropriations listed in subsections (4) and (5), the office shall increase the assessments specified in subsection (4) on a proportional basis as needed.
(8) The association shall report to the Legislature its determination as to the annual cost of maintaining the fund on an actuarially sound basis. In making its determination, the association shall consider the recommendations of all hospitals, physicians, casualty insurers, attorneys, consumers, and any associations representing any such person or entity. Notwithstanding the provisions of s. 395.3025, all hospitals, casualty insurers, departments, boards, commissions, and legislative committees shall provide the association with all relevant records and information upon request to assist the association in making its determination. All hospitals shall, upon request by the association, provide the association with information from their records regarding any live birth. Such information shall not include the name of any physician, the name of any hospital employee or agent, the name of the patient, or any other information which will identify the infant involved in the birth. Such information thereby obtained shall be utilized solely for the purpose of assisting the association and shall not subject the hospital to any civil or criminal liability for the release thereof. Such information shall otherwise be confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(9)(a) Within 60 days after a claim is filed, the association shall estimate the present value of the total cost of the claim, including the estimated amount to be paid to the claimant, the claimant’s attorney, the attorney’s fees of the association incident to the claim, and any other expenses that are reasonably anticipated to be incurred by the association in connection with the adjudication and payment of the claim. For purposes of this estimate, the association should include the maximum benefits for noneconomic damages.
(b) The association shall revise these estimates quarterly based upon the actual costs incurred and any additional information that becomes available to the association since the last review of this estimate. The estimate shall be reduced by any amounts paid by the association that were included in the current estimate.
4(c)1. If the total of all current estimates equals or exceeds 100 percent of the funds on hand and the funds that will become available to the association within the next 12 months from all sources described in subsection (4) and paragraph (5)(a), the association may not accept any new claims without express authority from the Legislature. This section does not preclude the association from accepting any claim if the injury occurred 18 months or more before the effective date of this suspension. Within 30 days after the effective date of this suspension, the association shall notify the Governor, the Speaker of the House of Representatives, the President of the Senate, the Office of Insurance Regulation, the Agency for Health Care Administration, and the Department of Health of this suspension.
2. Notwithstanding this paragraph, the association is authorized to accept new claims during the 2025-2026 fiscal year if the total of all current estimates exceeds the limits described in subparagraph 1. during that fiscal year. This subparagraph expires July 1, 2026.
(d) If any person is precluded from asserting a claim against the association because of paragraph (c), the plan shall not constitute the exclusive remedy for such person, his or her personal representative, parents, dependents, or next of kin.
1Note.—Duties of the Department of Insurance were transferred to the Department of Financial Services or the Financial Services Commission by ch. 2002-404, and s. 20.13, creating the Department of Insurance, was repealed by s. 3, ch. 2003-1.
2Note.—As amended by s. 4, ch. 2003-258, enacted at the 2003 Regular Session. Section 79, ch. 2003-416, enacted at Special Session D, 2003, failed to incorporate the amendment by s. 4, ch. 2003-258, adding the language “or those born in a teaching hospital as defined in s. 395.806 that have been deemed by the association as being exempt from assessments since fiscal year 1997 to fiscal year 2001.”
3Note.—As amended by s. 1901, ch. 2003-261, enacted at the 2003 Regular Session. Section 79, ch. 2003-416, enacted at Special Session D, 2003, failed to incorporate the amendment by s. 1901, ch. 2003-261, which substituted a reference to the Office of Insurance Regulation for a reference to the Department of Insurance.
4Note.—Section 47, ch. 2025-199, amended paragraph (9)(c) “[i]n order to implement appropriations of the 2025-2026 General Appropriations Act.”
...common law and
statutory law.” Id. § 766.304.
Awards paid through the no-fault compensation plan are funded by
assessments on physicians and hospitals that provide obstetric services. Id. §
5
766.314(1), (4). All hospitals licensed in Florida are required to pay assessments
based on the number of infants delivered in the hospital. Id. § 766.314(4)(a).
Physicians who elect to participate in the plan must pay an assessment of $5,000
annually. Id. § 766.314(4)(c), (5)(a)....
Cited 14 times | Published | Florida 2nd District Court of Appeal
...ent of claims on behalf of the Plan. § 766.315. To fund the Plan, which the Florida Supreme Court has compared to a form of insurance supported by a tax, the legislature imposed mandatory yearly assessments on all licensed physicians and hospitals. § 766.314(4)(a)(b); Coy v. Florida Birth-Related Neurological Compensation Plan, 595 So.2d 943 (Fla. 1992) (upholding constitutionality of section 766.314). [2] As noted in Coy, "obstetricians are not required to join the Plan, and insurance thus is available only if the obstetrician has elected to join." 595 So.2d at 944. Obstetricians who decide to participate pay a much higher assessment. § 766.314(4)(c)....
...Associates, Inc., were intervenors below. [2] To maintain the Plan on an "acturarially sound basis," funds are also derived in part from the Insurance Commissioner's Regulatory Trust Fund and, in certain circumstances, casualty insurance companies. § 766.314(5)(b)(c)....
Cited 12 times | Published | Florida 2nd District Court of Appeal | 2004 WL 57230
...1). A detailed definition of "[b]irth-related neurological injury" is set forth in section 766.302(2); "[p]articipating physician" is defined in section 766.302(7). A scheme of assessments on physicians and hospitals to fund the plan is set forth in section 766.314....
Cited 10 times | Published | Florida 2nd District Court of Appeal | 2001 WL 220009
...[2] In this case, Morton Plant Hospital was not a teaching hospital. In addition, the nurse midwives in this case had not paid assessments to NICA. If they had, they would be treated like "participating physicians" *1012 because they were "supervised by a participating physician." See § 766.314(4)(c), Fla....
...The administrative law judge interpreted the statute to require the participating physician to "deliver" a baby, rather than to "deliver" obstetrical services in the course of the "delivery" of a baby. Moreover, the administrative law judge mistakenly concluded that the language in section 766.314(4)(c), which treats a participating nurse midwife like a participating physician, prevented a physician who supervised a nonparticipating midwife from "delivering" services during the delivery of the baby....
...Indeed, a consultation like the one held in this case may expose a physician to liability if negligently performed. See, e.g., Tysinger v. Smisson, 176 Ga.App. 604, 337 S.E.2d 49 (1985). [5] The involvement of a nurse midwife in this case tends to unnecessarily confuse the analysis. Section 766.314(4)(c) provides, in part, that a nurse midwife may become a "participating physician" if supervised by a participating physician....
...Hypothetically, if the participating physician had been called by a nonparticipating physician for a consult about the decision to administer Pitocin, the legal issue would be the same, without the confusion created by the involvement of the midwife and section 766.314(4)(c)....
...evidence regarding only whether obstetrical services were delivered by a participating physician. Therefore, the administrative law judge made no finding as to whether the injury suffered by the infant was a "birth-related neurological injury." [3] Section 766.314(4)(c), Florida Statutes (1999) provides, in part: Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised b...
...Counsel of Florida Medical Ass'n, amicus curiae for Drs. James T. McGibony, Joseph Von Thron, Mark D. Ziffer and William Barfield. PER CURIAM. We have for review McGibony v. Florida Birth-Related Neurological Injury Compensation Plan, 564 So.2d 177 (Fla. 1st DCA 1990), which expressly declared section 766.314, Florida Statutes (1989), to be valid....
...of neurological injuries suffered by infants at birth. However, obstetricians are not required to join the Plan, and insurance thus is available only if the obstetrician has elected to join. Those who join pay an annual assessment of at least $5000. § 766.314(4)(c), Fla. Stat. (1989). To further fund the Plan, the statute imposes on all licensed physicians, not merely obstetricians, a mandatory annual assessment of $250. § 766.314(4)(b), Fla. Stat. (1989). Although not at issue in this case, licensed hospitals also are assessed $50 per infant delivered. § 766.314(4)(a), Fla. Stat. (1989). These amounts can be increased by action of the Plan whenever it finds that the Plan cannot otherwise be maintained on an "actuarially sound" basis, subject to oversight by the Department of Insurance. § 766.314(5), (7), Fla....
...Here, the $250 assessment is levied upon physicians to support a governmental enterprise, i.e., a state-created system for compensating certain individuals for certain types of birth-related injuries. The assessment is collected under authority of state law, and the Plan can sue to enforce the assessment. § 766.314(6)(b)1, Fla....
...obstetricians, the legislature recognized this by assessing them only $250 as compared to $5000. We also do not believe that the statute at issue constitutes an impermissible delegation of legislative authority to tax to the Department of Insurance. Section 766.314(7)(b), Florida Statutes (1989), reads as follows: (b) If the Department of Insurance finds that the plan cannot be maintained on an actuarially sound basis based on the assessments and appropriations listed in subsections (4) and (5),...
...standard. Likewise, such specific criteria for the charging of fees which may have been included in that statute were totally unrelated to the question of what was meant by actuarial soundness. Further, we reject the contention that the amendment to section 766.314 contained in chapter 89-186, Laws of Florida, means that the amount of any additional assessments is to be determined by the Florida Birth-Related Neurological Injury Compensation Association rather than the Department of Insurance. Section 766.314(2) provides that the association shall submit to the Department of Insurance for review a plan of operation which includes provisions for the assessment of the physicians. The plan of operation and any amendments to the plan are subject to the *948 approval of the Department of Insurance. Section 766.314(5)(a) provides that "the association shall determine the amount of additional assessments necessary pursuant to subsection (7), in the manner required by the plan of operation, subject to any increase determined to be necessary by the Department of Insurance pursuant to paragraph (7)(b)." Section 766.314(7)(b) clearly places the decision concerning the need for an increase upon the Department of Insurance....
...1981) (statute shall not be stricken as an unconstitutional delegation of powers where it is susceptible to a constitutional interpretation). Finally, we do not find the statute to be in violation of the Privileges and Immunities Clause of the Fourteenth Amendment to the United States Constitution. Under section 766.314(4)(b), all physicians licensed under chapters 458 and 459, Florida Statutes (1989), except obstetricians, are subject to an equal assessment of $250....
...te. The fact that a nonresident may receive less benefit from the assessment is simply a result of the decision to live outside the state of Florida. The remaining attacks against the statute are without merit and need not be discussed. We hold that section 766.314 is constitutionally valid and approve the decision below....
Cited 8 times | Published | Florida 1st District Court of Appeal
...of resident physicians and an attending board-certified obstetrician/gynecologist, all employed by the Board. Each attending physician was a NICA participating physician. Each resident physician was deemed an NICA participating physician pursuant to section 766.314(4)(c), Florida Statutes (1989)....
...required to comply with the following notice requirement: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries....
Cited 5 times | Published | Florida 2nd District Court of Appeal
...elated neurological injuries, and (2) to have been delivered by a participating physician. §§ 766.303, 766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. § 766.314....
Cited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 140806
...The Plan provides for the payment of claims without the necessity of proving fault. § 766.303(1). The Plan is funded by assessments levied against all physicians licensed to practice in the state and all hospitals licensed under chapter 395, Florida Statutes. § 766.314(4). However, physicians who choose to participate in the coverage provided by the Plan are *707 required to pay an additional annual assessment. § 766.314(4), (5)....
...ould not have chosen to seek services at a hospital that was not covered by the Plan. The statute does not provide any hospital with the option of participating or declining to participate in the Plan; rather, all hospitals are assessed equally. See § 766.314(4)(a), (5)(a)....
...The unstated but intended result is that the participating physician may either reduce or eliminate his malpractice coverage for neurological birth-related injuries by choosing to participate in the Plan and pay the higher assessments described in section 766.314....
...NOTES [1] §§ 766.301-.316, Fla. Stat. (1997). [2] See § 766.316 ("Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c) ....
...The Legislature expressly stated that it intended to provide a " limited system of compensation...." § 766.301(d), Fla. Stat. (2007) (emphasis added). The Plan also contains specific provisions relating to actuarial soundness. For example, on the assessment side of the equation, sections 766.314(5)(b) and (c) provide that if existing assessments are insufficient to maintain the NICA fund on an "actuarially sound" basis, additional appropriations are authorized. On the compensation side, section 766.314(9)(c) provides that if funds on hand are insufficient to cover anticipated expenses, NICA "shall not accept any new claims without express authority from the Legislature." If a claim is not accepted because of the above provision, the Plan ceases to be the exclusive remedy. § 766.314(9)(d), Fla....
Cited 3 times | Published | Florida 3rd District Court of Appeal | 1994 WL 45168
...Under the NICA statute, the financial benefits include expenses for care and treatment, as well as periodic payments to the parents or guardians. Id. § 766.31(1)(a), (b). The funds for these financial benefits are obtained from assessments on physicians and hospitals. Id. § 766.314....
...Nevertheless, the ALJ concluded that she "failed to establish that [she] was a `participating physician' at the time of [the child's] birth" because she could not produce the final draft of the Guidelines or the protocols that she had filed with the Board of Nursing to prove that the prearranged plan of treatment required by section 766.314(4)(c), Florida Statutes (2004), existed....
...[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action...."). III. NURSE HILDERBRANDT'S PREARRANGED PLAN OF TREATMENT A. The Parties' Arguments Nurse Hilderbrandt and NICA contend that the ALJ ignored the plain language of section 766.314(4)(c) and instead "created additional and burdensome requirements that do not exist." They argue that the ALJ improperly required proof of a written protocol to establish the existence of the prearranged plan of treatment required by section 766.314(4)(c). In response, the Andersons claim that the ALJ correctly interpreted section 766.314(4)(c) as requiring proof of a written protocol because the Nurse Practice Act, §§ 464.001-.027, Fla. Stat. (2004), and rule 64B9-4.010 permit certified nurse midwives to practice only if they are supervised by a licensed physician and governed by a written protocol filed with the Board of Nursing. B. The ALJ's Interpretation of Section 766.314 The Plan treats certified nurse midwives as "participating physicians" if two conditions are met. First, nurse midwives must pay "50 percent of the physician assessment required by [the Plan]." § 766.314(4)(c)....
...by a participating physician who would be easily available. But the ALJ ruled that Nurse Hilderbrandt did not have a prearranged plan of treatment based on her "failure to offer the [written] protocols she claimed were in place." The ALJ interpreted section 766.314(4)(c) to require proof that the prearranged plan of treatment was reduced to writing. We conclude that the ALJ's interpretation of section 766.314(4)(c) was erroneous....
...To do so would be an abrogation of legislative power." Id. (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). The ALJ interpreted "prearranged plan of treatment" as a written document. However, the plain language of section 766.314(4)(c) does not indicate that the prearranged plan of treatment must be in writing....
...State, 802 So.2d 281, 286 (Fla. 2001). The dictionary definitions of the words "prearrange," [6] "plan," [7] and "treatment" [8] do not lend support to the ALJ's interpretation of the statute as requiring a written document. Thus, based on the plain language of section 766.314(4)(c), a "prearranged plan of treatment" is not required to be a written document. The Andersons' argument that section 766.314(4)(c) should be interpreted in light of the Nurse Practice Act and rule 64B9-4.010 is unpersuasive for two reasons....
...Because section 194.171 did not define "taxpayer," the supreme court looked at the definition of "taxpayer" in section 192.001(13), Florida Statutes (2006). 944 So.2d at 313. Here, unlike in Cason, the ALJ could not use the Nurse Practice Act or rule 64B9-4.010 for guidance when interpreting section 766.314(4)(c) because the Nurse Practice Act and the rule do not define the term "prearranged plan of treatment." See § 464.003; Fla....
...atment." See State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008) ("A law should be construed together with any other statute relating to the same subject matter or having the same purpose if they are compatible."). The ALJ erroneously interpreted section 766.314(4)(c) as requiring proof of a written document to demonstrate that the doctor supervising Nurse Hilderbrandt "ha[d] a prearranged plan of treatment for specified patient problems." A correct interpretation of that section compels a fi...
Cited 1 times | Published | Florida 1st District Court of Appeal
...A portion of Chapter 88-1 created the Plan, which provides a no-fault compensation system for certain neurologically injured infants. The Plan's financing scheme, found in Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, Laws of Florida, codified as Section 766.314, Florida Statutes (1989), calls for payments from hospitals, physicians, the Insurance Commissioner's Regulatory Trust Fund, and, in certain circumstances, casualty insurance carriers....
...nstitutional requirements. We also find the appellants' remaining arguments to be without merit. Consequently, the trial court's final judgment upholding Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, and codified as Section 766.314, Florida Statutes (1989), against the various constitutional challenges raised by appellants is affirmed....
...erwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section 766.303(2) exclusivity if the nurse-midwife did not pay the section 766.314(4)(c), Florida Statutes, assessment for a midwife to be a “participating physician” under the Plan....
Cited 1 times | Published | Florida 1st District Court of Appeal | 2009 WL 2048919
...erwise been available. The appellants also suggest that regardless of whether there was any willful and wanton disregard in this case, the nurse-midwife should not be able to invoke section 766.303(2) exclusivity if the nurse-midwife did not pay the section 766.314(4)(c), Florida Statutes, assessment for a midwife to be a "participating physician" under the Plan....
...ena relating to insurance examiner's investigation authority) (v) Section 631.021 (Delinquency proceedings against a domestic, foreign, or alien insurer) (w) Section 631.371 (Alternative seizure order provision involving Department of Insurance) (x) Section 766.314(6) (Actions to compel collection of assessments pursuant to Florida Birth Related Neurological Injury Compensation Plan) (y) Section 944.095(12) (Decisions of Governor and Cabinet relating to siting of correctional facilities of the Department of Corrections) 3....
...lated neurological injuries, and (2) to havé been delivered by a participating physician. §§ 766.303, 766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. § 766.314....
...A portion of Chapter 88-1 created the Plan, which provides a no-fault compensation system for certain neurologically injured infants. The Plan’s financing scheme, found in Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, Laws of Florida, codified as Section 766.314, Florida Statutes (1989), calls for payments from hospitals, physicians, the Insurance Commissioner’s Regulatory Trust Fund, and, in certain circumstances, casualty insurance carriers....
...tutional requirements. We also find the appellants’ remaining arguments to be without merit. Consequently, the trial court’s final judgment upholding Section 73 of Chapter 88-1, as amended by Sections 39 and 41 of Chapter 88-277, and codified as Section 766.314, Florida Statutes (1989), against the various constitutional challenges raised by appellants is affirmed....
...a.1992), and Agency for Health Care Administration v. Hameroff, 816 So.2d 1145 (Fla. 1st DCA 2002), both of which were found to be constitutional under the rational basis test. In Coy , the supreme court approved this Court's opinion declaring valid section 766.314, Florida Statutes, which imposed on all licensed physicians, not only obstetricians, a mandatory annual assessment of $250 to fund the Florida Birth-Related Neurological Injury Compensation Plan ("NICA")....
...of resident physicians and an attending board-certified obstetrician/gynecologist, all employed by the Board. Each attending physician was a NICA participating physician. Each resident physician was deemed an NICA participating physician pursuant to section 766.314(4)(c), Florida Statutes (1989)....
...required to comply with the following notice requirement: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries....
...birth-related neurological injuries. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't. of Admin. Hearings, 29 So.3d 992, 995 (Fla. 2010). Financing for the fund was provided through assessments made against hospitals and physicians ( see section 766.314) and limitations were placed on amounts recoverable by claimants ( see section 766.31)....
...Braniff, 696 So.2d 308, 309-10 (Fla.1997). With limited exceptions not applicable to the instant case, physicians providing obstetric services are required to pay an annual assessment of $5,000 to be considered a "participating physician." See §§ 766.302(7) and 766.314(4)(c)....
..., 766.303(4), 766.315(1)(a), Fla.
Stat.
The Plan essentially is a risk-management or insurance trust
fund. The Legislature funds the Plan through budgetary
appropriations plus assessments (read: taxes) on licensed
hospitals and physicians. See § 766.314(1), (4), (5)(b), (c), (7), Fla.
Stat.; see also Coy v....
...Birth-Related Neurological Injury Comp.
Plan, 595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational
plan, subject to approval by the Department of Financial Services,
that provides for “assessments on an actuarially sound basis,”
subject to certain limitations. § 766.314(1), Fla. Stat. The funds are
to be used exclusively for the payment of “awards” made from the
Plan and for expenses incurred to administer it. § 766.314(2)(a),
(3), Fla....
...03(4), 766.315(1)(a), Fla.
Stat. (2021).
The Plan essentially is a risk-management or insurance trust
fund. The Legislature funds the Plan through budgetary
appropriations plus assessments (read: taxes) on licensed
hospitals and physicians. See § 766.314(1), (4), (5)(b), (c), (7), Fla.
Stat.; see also Coy v....
...Birth-Related Neurological Injury Comp.
Plan, 595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational
plan, subject to approval by the Department of Financial Services,
that provides for “assessments on an actuarially sound basis,”
subject to certain limitations. § 766.314(2)(a)4., Fla....
...what was paid to settle the claim, attorney’s fees and costs. NICA argues that it is not authorized by statute to pay compensation to anyone other than children who are neuro-logieally injured during birth and their parents. Dr. Feld responds that section 766.314(3) states that “funds collected by the association and any income therefrom should be disbursed only for the payment of awards under ss....
This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 766 in the context of medical malpractice litigation and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.
