April 20, 2021

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association.

As the 2021 legislative session nears the end, the Florida House and Senate are tackling medical malpractice, with lawmakers moving forward with bills that would change a longstanding no-fault insurance program for infants with neurological injuries.

The proposals deal with the Florida Birth-Related Neurological Injury Compensation Association, widely known as NICA, that was set up in the 1980s to pay for care of children born with brain or spinal-cord injuries. The program has drawn heavy attention recently because of  a series of stories in the Miami Herald.

The House and Senate bills have differences, but they both contain provisions that representatives of NICA and the insurance industry say are problematic.

The House Judiciary Committee on Monday put an amendment on its bill (HB 1165) that would require the state Agency for Health Care Administration to develop policies making clear that NICA is a third party responsible for payment of services and that Medicaid is the payer of last resort. The change would apply retroactively and direct the agency to determine how much money Medicaid could recoup from NICA.

Steve Ecenia, general counsel for NICA, said the retroactive application would be a problem because it could affect a lawsuit pending at the 11th U.S. Circuit Court of Appeals.

“If the Legislature wants to make a decision and treat NICA differently prospectively, that’s your prerogative to do. I would just plead with you not to take action that could potentially cost hundreds of millions of dollars to the NiCA program, potentially put it in financial jeopardy and really derail where we are trying to go,” Ecenia said.

The House bill would raise the payment from $100,000 to $250,000 for parents or legal guardians of infants who sustained birth-related neurological injuries. That would apply to petitions of claims filed since the beginning of this year. The bill would raise the death benefit for an infant who suffered a neurological injury from $10,000 to $50,000.

The Senate Appropriations Committee, meanwhile, approved a bill (SB 1786) on Monday that also contains a provision about Medicaid third-party liability, though it is not identical to the House version.

But the Senate  bill also would eliminate NICA effective Dec. 31, 2026, unless the Legislature passes a law to re-enact the program. That move — known as a “sunset” — drew concerns from the insurance industry.

“Those of you who have been around a few years know that tort reform is extremely, extremely difficult. If you put the termination provision in, the ability to get it back will be World War III … Once that sunset sets in, it’s armageddon.” said lobbyist Mark Delegal, whose clients include The Doctors Company, which provides medical-malpractice coverage for physicians.

NICA was created by lawmakers in 1988 as a no-fault system to pay for the care of children so long as the physicians participate in NICA and pay yearly assessments. Participating physicians are required to pay $5,000 each year for coverage, and all licensed Florida physicians pay a mandatory fee of $250, regardless of specialty.

Hospitals pay $50 for each live birth during the previous calendar year. In 2019, NICA collected $26,989,960 in hospital and physician assessments; in 2020, NICA collected $27 million, according to a legislative staff analysis.

Another provision in the Senate bill that Delegal and William Large, president of the Florida Justice Reform Institute, oppose would say it is not the intent to “shield physicians who engage in willful misconduct, gross negligence, or recklessness or to preclude individuals from filing legitimate claims of medical malpractice against such physicians.”

Delegal said that proposed change is a “clear shift” in policy and said NICA would not survive because it would encourage litigation.

Like the House bill, the Senate version would increase the death benefit to $50,000 and would up the parent or guardian award to $250,000 for claims filed after Jan 1. But the Senate bill would direct NICA to make retroactive payments to parents or guardians who received awards before this year.

NICA Executive Director Kenny Shipley told members of the House Judiciary Committee that there’s “another side to this story than what you saw come out of the Miami Herald.”

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Republished with permission from The News Service of Florida.

https://floridapolitics.com/archives/422022-lawmakers-weight-changes-in-program-for-injured-infants/ 

Scott Powers – April 14, 2021

‘We need to set some basic levels of expectations of privacy.’

Businesses feel the financial burden for protecting consumers’ data. Meanwhile consumer advocates argue customers would be shocked to know what information businesses have on them.

That was the crux Wednesday of public discussion and debate over Republican Rep. Fiona McFarland‘s consumer data privacy bill (HB 969) in the House Commerce Committee.

Business interests united in opposition, saying the measure would create untold operational and legal expenses. McFarland, of Sarasota, and others, contended businesses just don’t want to be forced to disclose what data they have on their customers.

Companies are collecting, compiling, selling, and sharing consumers’ personal information on everything from biometrics to DNA, to product preferences and buying histories, she warned. Some of the data might be gathered through surreptitious means, she warned.

“If the government had a fraction of the information that private companies have about us, and our thoughts, and our feelings, we would run for the hills screaming,” McFarland said. “And I think we’ve just become so enamored by the convenience that we’ve traded our privacy for that.”

The Commerce Committee concurred Wednesday, approving her measure unanimously, and sending it to the House floor.

The bill would give consumers the right to find out what personal information a company has on them, how the company got it, and what the company does with it. It gives consumers rights to ask that data be deleted or corrected, and to opt-out of having their personal data sold to or shared with other companies. It gives the Attorney General ability to go after companies for civil penalties for violations, perhaps the most alarming provision to business interests.

“Without this bill, there is no way a customer can know what information a company has about them, and how they got it,” McFarland said.

Wednesday’s approval came after McFarland offered a strike-all amendment she said represents efforts to address a number of business concerns. Among other things, the amendment raises the ceiling of minimum size qualifications on companies before being covered under the law. It also delayed implementation until July 2022, to give businesses time to adjust.

“We have taken extreme care to understand any unintended consequences to businesses,” she said.

But that wasn’t enough, based on the unanimity of opposition Florida’s business community offered Wednesday.

Most frequently, opponents warned that the bill’s private right of action provision would open Florida businesses to a whole new level of lawsuits, for consumers’ claims of damages and infringements caused by information collection, use, and sale. California, which has a weaker law than McFarland’s proposal, already has seen 76 class-action lawsuits filed.

William Large, president of the Florida Justice Reform Institute, said the bill opens up five new areas of consumer liability concerns for businesses, regarding potential data breeches, claims that a company failed to delete data, claims a company failed to correct data, the sale of data to other companies, and the sharing of data with other companies.

“All of those could lead to rights of action,” Large said.

There also was a concern about businesses having to set up massive compliance systems to respond to consumers’ demands for personal information.

Brewster Bevis of Associated Industries of Florida said a Florida TaxWatch report showed the bill could cost Florida businesses $36 billion.

“This is a very costly bill to Florida businesses,” Bevis said.

McFarland called the estimated costs “exaggerated” and dismissed some of the criticism as “knee-jerk.”

The boom in collection and dissemination of consumers’ personal data, much of it developed through e-commerce, has gotten out of hand, to the point where most consumers would be shocked to know what companies know about them, and how they learned it, she argued.

“I had one CEO actually tell me, he said, ‘Fiona, you simply must give me a carve-out, me and my business a carve-out, because if I had to tell my customers what information I had about them, they would be so creeped out they would all leave me tomorrow,’” she said.

And there are risks to consumers’ because of that, particularly through data hacking breaches that have become too commonplace, she argued.

“We need to set some basic levels of expectations of privacy. Perhaps it’s innocuous that someone knows what color suits I buy, but in the past, in order to get that information, you would either have to follow me to the mall or look inside my closet. Which I think before we were lulled into complacency with the convenience of e-commerce, that would have completely creeped us out,” she said.

The Senate companion is SB 1734 from Sen. Jennifer Bradley of Orange Park.

https://floridapolitics.com/archives/420170-despite-business-pushback-house-data-privacy-bill-gets-panel-approval/