Florida law doesn’t allow families to sue over birth defects.
Alexandra Benitez’s son, Jay, suffered brain damage at birth and was forced to return to the hospital on several occasions due to subsequent respiratory infections. The time and money spent on these visits began to get overwhelming. Yet, Florida lawmakers have made it nearly impossible for parents to sue for damages and get support following birth defects. Instead, the state created a no-fault fund in 1988, the Birth-Related Neurological Injury Compensation Association (NICA), to reimburse medical expenses – if it chooses.
Getting NICA to dish out any compensation has been next to impossible. In fact, nothing can be considered for reimbursement until families first go through Medicaid. Jay’s pulmonologist made a number of recommendations for his care, including nebulizer therapy, extra feeding tubes for Jay’s gastrostomy, and a “stander,” an adjustable frame that could be used to develop muscle strength in the boy’s legs. Medicaid refused to cover any of these.
Alexandra turned to NICA, but the fund, too, would not cover any medical care until she could prove that Medicaid had already denied the claims and submit a signed doctor’s letter verifying that the child needed these things.
“They make the family jump through all these hoops. Just to get what children are entitled to,” said Benitez, of Lakeland. “Hardship, that’s what it is.”
Data shows that approximately “125 of the 215 brain-damaged clients” in Florida’s NICA program qualify for Medicaid support, and they are required to seek help through the government-funded program before being considered by the State’s fund. Those with private health insurance must also ask that their insurance company pay out first.
Recently, Florida legislators approved a bill detailing a number of NICA reforms after the program’s loopholes began to receive media attention. But, Governor Ron DeSantis has yet to sign. At the same time, a federal whistleblower lawsuit was filed alleging that “by telling parents to go to Medicaid first, NICA is causing them to commit fraud by filing a false claim with Medicaid when NICA was supposed to pay instead…Both Medicaid and NICA consider themselves a payer of last resort, meaning they pick up only what insurance and other third parties do not. But, in reality, only one program can be last in line to pay.”
The bill was adopted by Florida legislators in April as an attempt to raise the one-time benefit to families from $100,000 to $250,000, boost the payment when a child dies from $10,000 to $50,000 and require at least one member of the NICA board of directors be the parent of a child in the program.
“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’re trying to go with all of these positive benefits,” said Steve Ecenia, general counsel for NICA.
For families like the Benitez’s, reforms can’t come soon enough. “They said our son was going to be taken care of. All his medical care would be taken care of,” Alexandra said of NICA. “Then, every little thing my son needed, we had to fight for it.”