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Florida neurological injury fund fights ruling of appeals court panel

11th district appeals tuttle building atlanta uscourtsgov.jpg
The Florida Channel
Leon County Judge John Cooper on June 30, 2022, in a screen grab from The Florida Channel.

A three-judge panel of the 11th U.S. Circuit Court of Appeals previouslty rejected arguments that NICA should be shielded from the whistleblower lawsuit because of sovereign immunity.

A Florida program that pays for care of children who suffer neurological injuries at birth is asking a full federal appeals court to take up a lawsuit about whether the program has inappropriately shifted costs to Medicaid.

Attorneys for the Florida Birth-Related Neurological Injury Compensation Association filed a motion this past week asking the full 11th U.S. Circuit Court of Appeals to consider whether the lawsuit should have been dismissed.

A three-judge panel of the court last month rejected arguments that the program, known as NICA, should be shielded from the whistleblower lawsuit because of sovereign immunity.

In the motion, NICA attorneys disputed the panel’s conclusion that the program was not an “arm of the state.”

The program was created by the Legislature in 1988 amid concerns about high costs of medical malpractice insurance for obstetricians. It operates as a no-fault system that provides money to pay for the care of children born with certain neurological injuries, helping prevent doctors from facing lawsuits over the injuries. Doctors and hospitals pay “assessments” to finance the program, which also receives investment income.

The lawsuit, filed in 2019 in South Florida, alleges that NICA has improperly considered itself a “payer of last resort,” effectively meaning that Medicaid could be required to pay costs before NICA steps in.

Plaintiffs contend that violates a federal law known as the False Claims Act because Medicaid is supposed to be the payer of last resort.

The panel’s ruling cleared the way for the lawsuit to move forward. But NICA’s motion for a hearing before the full Atlanta-based appeals court contends that the case could cause major financial damage to the program.

“The panel’s unprecedented approach and destabilizing ruling make this an exceptionally important case,” the motion said. “NICA’s authorizing statutes grant it sovereign immunity under state law. The panel’s refusal to honor that choice by the Legislature raises serious federalism concerns and infringes upon Florida’s sovereignty.”