Florida Legislature Overhauls Birth-Related Neurological Injury Compensation Association, Considers Ending ‘Free Kill’ Law

Having passed some of the most robust COVID-19 liability protections for healthcare providers in the nation earlier this year, the Florida Legislature just unanimously voted to overhaul how the state cares for infants who are catastrophically injured at birth.

On April 29, Florida lawmakers finalized legislation that would overhaul the state’s Birth-Related Neurological Injury Compensation Association (NICA), which oversees the state’s fund for compensating newborns with certain birth-related injuries. At press time, the bill had been sent to Gov. Ron DeSantis for his signature.`

NICA was established by the legislature in 1988 in an effort to blunt escalating medical liability insurance premiums for obstetricians. It oversees the Florida Birth-Related Neurological Injury Compensation Plan, which was developed to reimburse families for the care of neurologically injured children. Enrollment is available to eligible families without litigation. NICA is funded by an annual $250 fee paid by every physician in Florida, and currently boasts $1.5 billion in assets.

By eliminating the cost of legal proceedings, and through professional management of its disbursements, NICA proponents promised that birth-injured infants would receive the lifetime of care they need, while reducing the financial burden on medical providers.

Under the current plan, parents receive $100,000 up front and a commitment to reimburse the costs for a lifetime of healthcare. But NICA came under fire in early April when the Miami Herald, in partnership with the investigative reporting non-profit ProPublica, published a series, called “Birth and Betrayal,” detailing families in the program, many of whom reported receiving pennies on the dollar in reimbursement for their children’s expensive medical needs and claimed their pleas for help were ignored by the association.

According to the Miami Herald articles, the program’s definition of medical necessity ensured NICA spent less on care for neurologically impaired children than private insurance would and that NICA often questioned the medical necessity of such items as “wheelchairs, medication, physical therapy and extra feeding bags” for children with a gastrostomy tube.

In the wake of the articles, Florida chief financial officer Jimmy Patronis called for an audit of NICA and lawmakers vowed to take immediate action in reforming the association. The resulting legislation mandates at least one operational audit of NICA every three years and the addition of at least one parent of a covered child, as well as one representative from an advocacy organization for children with disabilities, to the NICA board of directors. Parents will now have a formal process for disputing the amount of actual expenses reimbursed or appealing any denial of reimbursement.

The updated bill also increases the initial lump-sum payment NICA makes to families enrolling in the plan from $100,000 to $250,000 (retroactive for those families already enrolled) and provides an annual $10,000 for family mental health counseling.

In related news, the Florida House of Representatives overwhelmingly passed HB 651, which would authorize parents of adult children who died as a result of medical negligence to seek pain-and-suffering damages.

Florida Statute Section §768.21 currently restricts the recovery of noneconomic damages in wrongful death medical liability lawsuits to spouses and minor children. Parents of an adult child, and adult children of a parent, who died as a result of medical negligence are prohibited from suing for damages. Should the decedent have no spouse or minor child, no damages are recoverable. Florida is the only state with such a statute, which is derisively referred to as a “free kill” law by its opponents. HB 651 maintains the prohibition of adult children recovering damages for a parent’s wrongful death and has been sent to the senate for consideration.

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