Most families who start looking into a birth injury claim find a court system waiting for them: a lawsuit, a defendant, and the burden of proving that someone made a mistake. In two states, there is a second path that works nothing like that.
Florida and Virginia each run a no fault fund that pays for the lifetime care of a child with a severe birth related neurological injury. No one has to prove negligence. In exchange, in most cases, the family gives up the right to sue.
In June 2026, Florida changed how its version of that fund operates. The legislature passed CS/CS/SB 1668 unanimously in both chambers, and the Governor approved it on June 11, 2026, making it Chapter 2026-127 of the Laws of Florida. The changes are mostly administrative rather than dramatic, but they touch benefit eligibility, health insurance requirements for enrolled children, and the way the fund settles up with Medicaid.
If your child has a birth related neurological injury and you live in Florida, this is worth understanding now. If you live anywhere else, the story is still useful, because it shows what a compensation system looks like when it is designed to keep families out of courtrooms, and what families trade away in return.
“A no-fault fund is a form of insurance, not a form of justice. Families trade the right to sue for benefits that arrive without a fight over fault.”
— Cerebral Palsy Center Editorial Team
What a no fault birth injury fund actually is
A no fault fund is a form of insurance, not a form of justice. The idea took hold in the 1980s, when obstetricians in several states said malpractice premiums had grown so high that they were leaving obstetrics entirely. Florida and Virginia responded with the same basic bargain. The state would create a fund, paid for by assessments on doctors, hospitals and insurers. Families of babies born with catastrophic neurological injuries could apply to that fund for lifetime care benefits. They would not have to prove anyone was at fault. They also, in most cases, would not be able to sue.
Florida's version is administered by the Florida Birth Related Neurological Injury Compensation Association, known as NICA. Virginia's is the Virginia Birth Related Neurological Injury Compensation Program, created by the Virginia Birth Related Neurological Injury Compensation Act. They remain the only two programs of their kind in the United States. Every other state handles birth injury through ordinary medical malpractice litigation.
How a family enters the Florida program
Entry is narrow by design. Florida's statute covers infants who suffer a birth related neurological injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate period after birth, and who are left permanently and substantially impaired both physically and mentally. That two part requirement matters enormously. A child with a severe physical impairment but intact cognition may not qualify, even when the injury clearly happened at birth.
The delivering physician and hospital also have to be participants in the program, and there are notice requirements meant to tell expectant parents in advance that their provider participates. Claims are decided not by a jury but by an administrative law judge at Florida's Division of Administrative Hearings.
What the program pays is also defined by statute rather than by a jury: medically necessary and reasonable expenses for care, therapy, equipment and related needs across the child's life, plus a statutory award to the parents and, in death cases, a death benefit. There is no award for pain and suffering the way a jury might grant one.
What changed in 2026
The 2026 legislation grew out of a long running complaint about both state programs: that costs which the funds were created to cover were quietly landing on Medicaid instead. According to the Florida Senate's bill analysis, CS/CS/SB 1668 responds directly to that.
The main provisions require the Agency for Health Care Administration to recover from NICA certain costs that Medicaid has already paid on behalf of a participant. The bill also modifies eligibility for annual benefits, revises the exclusivity of remedies under the plan, and requires that participants be kept covered by comprehensive major medical insurance or enrolled in Medicaid where eligible, with the plan covering premiums and out of pocket costs. It authorizes NICA to recoup overpaid expenses from family members, requires the association to report compensation paid to independent contractors in its annual report, and restructures how assessments and appropriations are administered.
Read plainly, the package pushes NICA to behave more like the primary payer it was designed to be, and adds accountability around what the fund spends and reports. The provision revising exclusivity of remedies is the one families and their attorneys will want to look at most closely, because exclusivity is the whole trade at the heart of the program.
The tradeoff at the center of these programs
Supporters of no fault funds point to speed and certainty. A malpractice case involving cerebral palsy can take years, costs a great deal to bring, and can end with nothing. A qualifying NICA claim avoids that. Benefits begin without a fight over what a nurse charted at two in the morning.
Critics point at what is lost. Families give up a jury trial and the broader damages a jury can award. The narrow eligibility test excludes children with real, serious birth injuries. And because the program is administered rather than litigated, families have described friction over what counts as a covered expense. Both states have faced sustained scrutiny on these points, which is a fair part of why legislatures keep revisiting the statutes.
Neither view is the whole picture. What is true is that in Florida and Virginia, whether a family ends up in the no fault system or in court is often decided very early, sometimes by facts the family does not yet know.
What this means for families outside those two states
If you live in one of the other 48 states, there is no fund to apply to. A birth injury claim goes through the ordinary civil system, which means filing deadlines matter a great deal. Those deadlines vary widely, and many states apply special rules that extend the deadline for a child. You can read more on our page about the statute of limitations in birth injury cases.
Wherever you live, a few steps hold up well:
- Request the complete records early. That means the mother's prenatal records, the labor and delivery record including fetal monitoring strips, and the newborn's hospital chart.
- Ask whether your delivering physician and hospital participated in a state program, if you delivered in Florida or Virginia.
- Ask any attorney you consult how the state program interacts with a lawsuit in your specific situation, and get that answer before you file anything.
- Keep your own record of therapies, equipment and out of pocket costs. Both the funds and the courts work from documentation.
The short version
Florida did not rebuild its no fault birth injury fund in 2026. It tightened it. The fund is being pushed to pay what it was created to pay rather than leaning on Medicaid, participants must be kept insured, and reporting requirements got stricter. For most enrolled families the day to day experience will not change overnight, but the rules governing their benefits did change, and it is reasonable to ask NICA directly how the amendments apply to your child's award.
This article is general information, not legal advice. Rules differ by state and by case, and only an attorney licensed in your state, reviewing your records, can tell you what applies to your family.
