Florida’s Neurological Birth Injury Compensation Fund Q&A
How does the new legislation impact children who suffer birth injuries in Florida Hospitals?
Recently the Florida Legislature revised an archaic government program called NICA, which impacts families whose children have suffered a neurological birth injury during delivery. In this article, DCW attorney Michelle DeLong breaks down the implications of the new legislation to help families understand how the expanded NICA benefits affect them. Ms. DeLong is a medical malpractice attorney who represents children who have suffered significant birth injuries due to negligence and misconduct. Recently, one of her clients was profiled by the Miami Herald for their exposé series titled, “Birth and Betrayal,” which shared their family’s long legal battle with NICA in their pursuit for justice.
What is NICA?
The Florida Birth-Related Neurological Injury Compensation Association is commonly abbreviated and referred to as “NICA.” Established in 1988, the Florida Legislature created the fund as the answer to address the increasing costs of medical malpractice insurance premiums for medical providers delivering obstetrical services across the state of Florida.
NICA is a no-fault alternative to medical malpractice lawsuits that allows a family to apply for medical benefits if the child suffered a neurological birth injury during delivery. If NICA determines the child qualifies for medical benefits after meeting their strict criteria, the family cannot pursue a lawsuit for any negligence that occurred on behalf of the participating obstetrical medical provider during the labor and delivery of the child. Thus, if the NICA benefits are accepted, a lawsuit arising from the injuries caused at the birth cannot be pursued.
What are the Benefits that NICA Provides?
NICA provides families who qualify for benefits a lump sum payment. NICA also provides benefits for actual expenses that it determines are medically necessary and reasonable.
What is the Lump Sum Payment?
The NICA benefits have been expanded due to recent legislation passed by the Florida Legislature. The legislation became effective on June 21, 2021. As a result of the newly passed legislation, the lump sum payment for a disabled child increased from $100,000.00 to $250,000.00 as of January 1, 2021. Each subsequent year, the lump sum benefit shall increase by 3%. Likewise, the lump sum payment for a child who suffered death because of a neurological birth injury increased from $10,000.00 to $50,000.00. Unlike the disability benefit, the death benefit does not increase annually. Both lump sum payments are retroactive.
What are the Medically Necessary and Reasonable Expenses that NICA Covers?
Since its inception, NICA has promised to cover actual expenses for medically necessary and reasonable expenses such as medical, hospital, family, or professional residential or custodial care and services, for medically necessary drugs, special equipment, and facilities, and any related travel. After the Florida Legislature learned that NICA families were having trouble receiving reimbursement for the actual medical expenses promised by NICA, it addressed the issue in the revised and recently enacted legislation. Now, NICA families can receive up to $10,000.00 annually for psychotherapeutic services for the immediate family members who reside with and care for the disabled child. Additionally, costs for reliable transportation, including modifications to an existing vehicle, to transport the disabled child are now reimbursed by the program. The vehicle must be replaced at NICA’s expense every seven years or after 150,000 miles, whichever occurs first. The new legislation also provides housing assistance up to $100,000.00 for the life of the child to modify the child’s home to accommodate his or her disabilities. To ensure that families are receiving reimbursement for reasonable and necessary medical expenses, the Legislature also created regulatory oversight to ensure NICA is not denying payment on claims that should be reimbursed. The new benefits are retroactive.
Does the New NICA legislation Affect my Family, if my Child is Already Enrolled?
Yes. The new NICA legislation makes the expansion of benefits, including the lump sum payment retroactive. That means that any family who qualified for NICA benefits since its inception may qualify for a retroactive payment to bring the total award paid to NICA families up to the January 1, 2021 maximum limits (i.e. up to $250,000.00 for a disability benefit; or up to $50,000.00 for a death benefit). NICA families may also be eligible for the additional benefits included in the expansion of the law such as the annual $10,000 psychotherapeutic services for immediate family members living with the disabled child, reimbursement for transportation costs and modifications, and the disabled child’s lifetime housing assistance sum to modify the home to accommodate the child’s disabilities.
Does my Child Qualify for NICA Benefits?
To qualify for medical benefits under NICA, the child must meet the following criteria:
- The child was born in a Florida hospital;
- The medical provider who delivered obstetrical services participated in the NICA program;
- During the labor, delivery, or resuscitation in the immediate post-delivery period, the child suffered a brain or spinal cord injury caused by oxygen deprivation or mechanical injury;
- The child was born alive and weighed:
- At least 5.15 pounds (2500 grams) at birth for a single gestation;
- At least 4.41 pounds (2000 grams) at birth for multiple gestations;
- It is determined that the child is permanently and substantially mentally impaired;
- It is determined that the child is permanently and substantially physically impaired; and
- The child’s disability or death was not caused by a genetic or congenital abnormality.
How Do I Petition NICA for Benefits?
A child’s parent or legal guardian can petition NICA for benefits. The petition forms can be found at https://www.nica.com/filing-a-claim/petition-for-benefits/. The petition must be filed before the child’s fifth birthday. At the time of filing, the relevant medical records must be included with the petition. The parent or legal guardian is responsible for obtaining the relevant medical records, which include the labor and delivery records from the hospital for both the mother and the child. NICA makes it clear that it is important to include the fetal monitoring strips (FMS) as well upon submission. A completed petition with the relevant medical records and a $15.00 filing fee made payable to the Florida Division of Administrative Hearings, should be mailed to:
The Clerk of the Division
Florida Division of Administrative Hearings
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
If you need assistance completing a petition, you may contact NICA at the toll-free number 1-800-398-2129.
Who Decides Whether my Child Qualifies for NICA?
An Administrative Law Judge has the sole authority to decide whether a child meets the required NICA criteria and should receive benefits under the program.
Should I Consult a Lawyer Before Submitting a NICA petition?
Yes. An experienced medical negligence lawyer can navigate you through the NICA process. Additionally, before submitting a NICA petition, you may want a medical negligence lawyer to review the medical records to determine whether negligence occurred in your child’s case. Although not all neurological birth injuries are a result of medical negligence, some are. If your child’s neurological birth injury is a result of medical negligence, your lawyer can help you navigate NICA and possibly release you from the program so that you can pursue a civil lawsuit.
Why Would I Want to Pursue a Civil Lawsuit Instead of Accepting NICA Benefits?
If your child’s neurological birth injury was caused by medical negligence, pursuing a civil lawsuit could potentially provide you and your family with more benefits for your disabled child than NICA could ever offer. To determine whether you have the option to pursue a civil lawsuit instead of accepting NICA benefits, contact an experienced medical negligence lawyer today to discuss your case.