Florida Senate - 2009                                     SB 882
       
       
       
       By Senator Fasano
       
       
       
       
       11-00694A-09                                           2009882__
    1                        A bill to be entitled                      
    2         An act relating to contractual relationships with
    3         governmental contractors; amending s. 766.1115, F.S.;
    4         redefining the term “contract” to include a
    5         contractual relationship between a governmental
    6         contractor and certain charitable organizations or
    7         health care entities; redefining the terms “health
    8         care provider” or “provider” to include facilities
    9         under contract with a charitable organization;
   10         providing that certain charitable organizations that
   11         execute a contract with a health care provider are
   12         agents for purposes of sovereign immunity and may not
   13         be named as a defendant in an action arising out of
   14         medical care or treatment; revising contractual
   15         requirements; requiring that certain charitable
   16         organizations provide written notice to patients that
   17         the provider is an agent of the governmental
   18         contractor; revising requirements for rules adopted by
   19         the Department of Health; providing an effective date.
   20         
   21  Be It Enacted by the Legislature of the State of Florida:
   22         
   23         Section 1. Subsections (2), (3), (4), (5), and (10) of
   24  section 766.1115, Florida Statutes, are amended to read:
   25         766.1115 Health care providers; creation of agency
   26  relationship with governmental contractors.—
   27         (2) FINDINGS AND INTENT.—The Legislature finds that a
   28  significant proportion of the residents of this state who are
   29  uninsured or Medicaid recipients are unable to access needed
   30  health care because health care providers fear the increased
   31  risk of medical negligence liability. It is the intent of the
   32  Legislature that access to medical care for indigent residents
   33  be improved by providing governmental protection to health care
   34  providers who offer free quality medical services to underserved
   35  populations of the state. Therefore, it is the intent of the
   36  Legislature to ensure that health care professionals who
   37  contract to provide such services as agents of the state are
   38  provided sovereign immunity.
   39         (3) DEFINITIONS.—As used in this section, the term:
   40         (a) “Contract” means an agreement executed in compliance
   41  with this section between a health care provider, a charitable
   42  organization, or a health care entity and a governmental
   43  contractor. This contract shall allow the health care provider
   44  to deliver health care services to low-income recipients who are
   45  qualified to receive such services by the charitable
   46  organization or health care entity as an agent of the
   47  governmental contractor. The contract must be for volunteer,
   48  uncompensated services. For services to qualify as volunteer,
   49  uncompensated services under this section, the health care
   50  provider must receive no compensation from the governmental
   51  contractor for any services provided under the contract and must
   52  not bill or accept compensation from the recipient, or any
   53  public or private third-party payor, for the specific services
   54  provided to the low-income recipients covered by the contract.
   55         (b)“Charitable organization” means an organization that is
   56  described in s. 501(c)(3) of the Internal Revenue Code, is
   57  exempt from tax under s. 501(a) of the Internal Revenue Code,
   58  and provides free health care to low-income persons.
   59         (c)(b) “Department” means the Department of Health.
   60         (d)(c) “Governmental contractor” means the department,
   61  county health departments, a special taxing district with health
   62  care responsibilities, or a hospital owned and operated by a
   63  governmental entity.
   64         (e)“Health care entity” means a hospital that has
   65  contracted with a charitable organization to provide free health
   66  care to low-income persons.
   67         (f)(d) “Health care provider” or “provider” means:
   68         1. A birth center licensed under chapter 383.
   69         2. An ambulatory surgical center licensed under chapter
   70  395.
   71         3. A hospital licensed under chapter 395.
   72         4. A physician or physician assistant licensed under
   73  chapter 458.
   74         5. An osteopathic physician or osteopathic physician
   75  assistant licensed under chapter 459.
   76         6. A chiropractic physician licensed under chapter 460.
   77         7. A podiatric physician licensed under chapter 461.
   78         8. A registered nurse, nurse midwife, licensed practical
   79  nurse, or advanced registered nurse practitioner licensed or
   80  registered under part I of chapter 464 or any facility which
   81  employs nurses licensed or registered under part I of chapter
   82  464 to supply all or part of the care delivered under this
   83  section.
   84         9. A midwife licensed under chapter 467.
   85         10. A health maintenance organization certificated under
   86  part I of chapter 641.
   87         11. A health care professional association and its
   88  employees or a corporate medical group and its employees.
   89         12. Any other medical facility the primary purpose of which
   90  is to deliver human medical diagnostic services or which
   91  delivers nonsurgical human medical treatment, and which includes
   92  an office maintained by a medical provider.
   93         13. A dentist or dental hygienist licensed under chapter
   94  466.
   95         14. A free clinic that delivers only medical diagnostic
   96  services or nonsurgical medical treatment free of charge to all
   97  low-income recipients.
   98         15. Any other health care professional, practitioner,
   99  provider, or facility under contract with a charitable
  100  organization or a governmental contractor, including a student
  101  enrolled in an accredited program that prepares the student for
  102  licensure as any one of the professionals listed in
  103  subparagraphs 4.-9.
  104  The term includes any nonprofit corporation qualified as exempt
  105  from federal income taxation under s. 501(a) of the Internal
  106  Revenue Code, and described in s. 501(c) of the Internal Revenue
  107  Code, which delivers health care services provided by licensed
  108  professionals listed in this paragraph, any federally funded
  109  community health center, and any volunteer corporation or
  110  volunteer health care provider that delivers health care
  111  services.
  112         (g)(e) “Low-income” means:
  113         1. A person who is Medicaid-eligible under Florida law;
  114         2. A person who is without health insurance and whose
  115  family income does not exceed 200 percent of the federal poverty
  116  level as defined annually by the federal Office of Management
  117  and Budget; or
  118         3. Any client of the department who voluntarily chooses to
  119  participate in a program offered or approved by the department
  120  and meets the program eligibility guidelines of the department.
  121         (4) CONTRACT REQUIREMENTS.—A health care provider that
  122  executes a contract with a charitable organization or a
  123  governmental contractor to deliver health care services on or
  124  after April 17, 1992, as an agent of the governmental contractor
  125  is an agent for purposes of s. 768.28(9), while acting within
  126  the scope of duties under the contract, if the contract complies
  127  with the requirements of this section and regardless of whether
  128  the individual treated is later found to be ineligible. A health
  129  care provider under contract with a charitable organization, a
  130  health care entity, or the state may not be named as a defendant
  131  in any action arising out of medical care or treatment provided
  132  on or after April 17, 1992, under contracts entered into under
  133  this section. The contract must provide that:
  134         (a) The right of dismissal or termination of any health
  135  care provider delivering services under the contract is retained
  136  by the charitable organization, the health care entity, or the
  137  governmental contractor.
  138         (b) The governmental contractor has access to the patient
  139  records of any health care provider delivering services under
  140  the contract.
  141         (c) Adverse incidents and information on treatment outcomes
  142  must be reported by any health care provider to the governmental
  143  contractor if the incidents and information pertain to a patient
  144  treated under the contract. The health care provider shall
  145  submit the reports required by s. 395.0197. If an incident
  146  involves a professional licensed by the Department of Health or
  147  a facility licensed by the Agency for Health Care
  148  Administration, the governmental contractor shall submit such
  149  incident reports to the appropriate department or agency, which
  150  shall review each incident and determine whether it involves
  151  conduct by the licensee that is subject to disciplinary action.
  152  All patient medical records and any identifying information
  153  contained in adverse incident reports and treatment outcomes
  154  which are obtained by governmental entities under this paragraph
  155  are confidential and exempt from the provisions of s. 119.07(1)
  156  and s. 24(a), Art. I of the State Constitution.
  157         (d) Patient selection and initial referral must be made
  158  solely by the governmental contractor or charitable
  159  organization, and the provider must accept all referred
  160  patients. However, the number of patients that must be accepted
  161  may be limited by the contract, and patients may not be
  162  transferred to the provider based on a violation of the
  163  antidumping provisions of the Omnibus Budget Reconciliation Act
  164  of 1989, the Omnibus Budget Reconciliation Act of 1990, or
  165  chapter 395.
  166         (e) If emergency care is required, the patient need not be
  167  referred before receiving treatment, but must be referred within
  168  48 hours after treatment is commenced or within 48 hours after
  169  the patient has the mental capacity to consent to treatment,
  170  whichever occurs later.
  171         (f) Patient care, including any followup or hospital care,
  172  is subject to approval by the charitable organization, the
  173  health care entity, or the governmental contractor.
  174         (g) The provider is subject to supervision and regular
  175  inspection by the governmental contractor.
  176  A governmental contractor that is also a health care provider is
  177  not required to enter into a contract under this section with
  178  respect to the health care services delivered by its employees.
  179         (5) NOTICE OF AGENCY RELATIONSHIP.—The governmental
  180  contractor or charitable organization must provide written
  181  notice to each patient, or the patient's legal representative,
  182  receipt of which must be acknowledged in writing, that the
  183  provider is an agent of the governmental contractor and that the
  184  exclusive remedy for injury or damage suffered as the result of
  185  any act or omission of the provider or of any employee or agent
  186  thereof acting within the scope of duties pursuant to the
  187  contract is by commencement of an action pursuant to the
  188  provisions of s. 768.28. With respect to any federally funded
  189  community health center, the notice requirements may be met by
  190  posting in a place conspicuous to all persons a notice that the
  191  federally funded community health center is an agent of the
  192  governmental contractor and that the exclusive remedy for injury
  193  or damage suffered as the result of any act or omission of the
  194  provider or of any employee or agent thereof acting within the
  195  scope of duties pursuant to the contract is by commencement of
  196  an action pursuant to the provisions of s. 768.28.
  197         (10) RULES.—The department shall adopt rules to administer
  198  this section in a manner consistent with its purpose to provide
  199  and facilitate access to appropriate, safe, and cost-effective
  200  health care services and to maintain health care quality. The
  201  rules may include services to be provided and authorized
  202  procedures. Notwithstanding the requirements of paragraph
  203  (4)(d), the department shall adopt rules that specify required
  204  methods for determination and approval of patient eligibility
  205  and referral and the contractual conditions under which a health
  206  care provider may perform the patient eligibility and referral
  207  process on behalf of the department. These rules shall include,
  208  but not be limited to, the following requirements:
  209         (a) The provider must accept all patients referred by the
  210  department. However, the number of patients that must be
  211  accepted may be limited by the contract.
  212         (b) The provider shall comply with departmental rules
  213  regarding the determination and approval of patient eligibility
  214  and referral.
  215         (c) The provider shall complete training conducted by the
  216  department regarding compliance with the approved methods for
  217  determination and approval of patient eligibility and referral.
  218         (d) The department shall retain review and oversight
  219  authority of the patient eligibility and referral determination.
  220         (e)The referral form from the Department of Health, which
  221  is signed by the patient annually, applies to all health care
  222  services provided for 1 year, including primary, diagnostic
  223  testing, secondary and tertiary care services administered by
  224  approved providers or through contracted charitable
  225  organizations or health care entities. A patient does not need a
  226  separate referral form for each approved provider.
  227         Section 2. This act shall take effect July 1, 2009.