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This is the
2011 version of the statute, and it
is offered for
general information purposes.
This statute should not be relied on without reviewing your legal
situation with an experienced medical malpractice lawyer, and making sure
you are using the appropriate version of the relevant statute for your
case. The provisions applicable to your potential claim may or may not
be the version that was in effect at the time
of the child's birth, because some changes to the statute have been made
retroactive, and other changes have not. Other statutes and other case law
interpreting or applying these statutes may also apply to your case.
Applies To Florida Only
766.314 Assessments; plan of operation.--
(1) The assessments established pursuant to this section
shall be used to finance the Florida Birth-Related Neurological Injury
(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
(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 on or after
October 1, 1988, which assessments will be made by the Department of
Business and Professional Regulation, and except assessments of casualty
insurers pursuant to subparagraph (5)(c)1., which assessments will be
made by the Office of Insurance Regulation. Beginning October 1, 1989,
for any physician licensed between October 1 and December 31 of any
year, the Department of Business and Professional Regulation shall make
the initial assessment plus the assessment for the following calendar
year. The Department of Business and Professional Regulation shall
provide the association, with such frequency as determined to be
necessary, a listing, in a computer-readable form, of the names and
addresses 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.
The association shall be entitled to an award of attorney's 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 the provisions of chapters 47 and 48, the association
may file such suit in either Leon County or the county of the residence
of the defendant.
2. The Department of Business and Professional Regulation, upon
notification by the association that an assessment has not been paid and
that there is an unsatisfied judgment against a physician, shall not
renew any license to practice for such physician issued pursuant to
chapter 458 or chapter 459 until such time as the judgment is satisfied
(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 provision of 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
(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.
(c) In the event the total of all current estimates equals 80 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
subsections (4) and (5) and paragraph (7)(a), the association shall not
accept any new claims without express authority from the Legislature.
Nothing herein shall preclude the association from accepting any claim
if the injury occurred 18 months or more prior to the effective date of
this suspension. Within 30 days of 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, the
Department of Health, and the Department of Business and Professional
Regulation of this suspension.
(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.
History.--s. 73, ch. 88-1; s. 39, ch.
88-277; s. 44, ch. 88-294; s. 6, ch. 89-186; s. 103, ch. 92-33; s. 122,
ch. 92-149; s. 1, ch. 92-196; s. 94, ch. 92-289; s. 66, ch. 93-268; s.
1, ch. 94-85; s. 248, ch. 94-218; s. 426, ch. 96-406; s. 1807, ch.
97-102; s. 81, ch. 97-237; s. 167, ch. 98-166; s. 288, ch. 99-8; s. 227,
ch. 2000-160; s. 7, ch. 2002-401; s. 4, ch. 2003-258; s. 1901, ch.
2003-261; ss. 79, 84, ch. 2003-416.
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.
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