CS/HB 7235

1
A bill to be entitled
2An act relating to vulnerable children and adults;
3amending 382.002, F.S.; defining the term "certified
4homeless youth" for purposes of provisions relating to
5vital statistics; amending s. 382.0085, F.S.; conforming a
6cross-reference; amending s. 382.025, F.S.; authorizing a
7certified homeless youth or a minor who has had the
8disabilities of nonage removed to obtain a birth
9certificate; amending s. 393.067, F.S.; prohibiting
10monitoring requirements that mandate pornographic
11materials be available in residential facilities that
12serve clients of the Agency for Persons with Disabilities;
13amending s. 393.11, F.S.; requiring the court to order a
14person involuntarily admitted to residential services to
15be released to the agency for appropriate residential
16services; prohibiting the court from ordering that such
17person be released directly to a residential service
18provider; authorizing the agency to transfer a person from
19one residential setting to another; requiring the agency
20to notify the committing court and the person's counsel of
21the transfer within a specified time; amending s. 393.125,
22F.S.; authorizing the agency to issue a final order;
23amending s. 409.1671, F.S.; decreasing the limits of
24liability and requisite insurance coverage for lead
25community-based providers and subcontractors; providing
26immunity from liability for the Department of Children and
27Family Services for acts or omissions of a community-based
28provider or subcontractor or the officers, agents, or
29employees thereof; amending s. 916.1093, F.S.; requiring a
30sufficient number of civil facilities to provide
31community-based training for defendants charged with sex
32offenses; amending s. 916.3025, F.S.; requiring that the
33court order a person involuntarily admitted to residential
34services after criminal charges have been dismissed to be
35released to the agency for appropriate residential
36services; creating a task force to develop input for the
37creation of certain guidelines and procedures for
38providers of residential services; providing for
39membership of the task force; requiring the task force to
40seek input from certain pertinent entities; requiring the
41agency to provide administrative support to the task
42force; requiring the task force to submit its findings to
43the Legislature; providing an effective date.
44
45Be It Enacted by the Legislature of the State of Florida:
46
47     Section 1.  Subsections (3) through (16) of section
48382.002, Florida Statutes, are renumbered as subsections (4)
49through (17), respectively, and a new subsection (3) is added to
50that section to read:
51     382.002  Definitions.-As used in this chapter, the term:
52     (3)  "Certified homeless youth" means a minor who is a
53homeless child or youth, including an unaccompanied youth, as
54those terms are defined in 42 U.S.C. s. 11434a and who has been
55certified as homeless or unaccompanied by:
56     (a)  A school district homeless liaison;
57     (b)  The director of an emergency shelter program funded by
58the United States Department of Housing and Urban Development or
59the director's designee; or
60     (c)  The director of a runaway or homeless youth basic
61center or transitional living program funded by the United
62States Department of Health and Human Services or the director's
63designee.
64     Section 2.  Subsection (9) of section 382.0085, Florida
65Statutes, is amended to read:
66     382.0085  Stillbirth registration.-
67     (9)  This section or s. 382.002(15)(14) may not be used to
68establish, bring, or support a civil cause of action seeking
69damages against any person or entity for bodily injury, personal
70injury, or wrongful death for a stillbirth.
71     Section 3.  Paragraph (a) of subsection (1) of section
72382.025, Florida Statutes, is amended to read:
73     382.025  Certified copies of vital records;
74confidentiality; research.-
75     (1)  BIRTH RECORDS.-Except for birth records over 100 years
76old which are not under seal pursuant to court order, all birth
77records of this state shall be confidential and are exempt from
78the provisions of s. 119.07(1).
79     (a)  Certified copies of the original birth certificate or
80a new or amended certificate, or affidavits thereof, are
81confidential and exempt from the provisions of s. 119.07(1) and,
82upon receipt of a request and payment of the fee prescribed in
83s. 382.0255, shall be issued only as authorized by the
84department and in the form prescribed by the department, and
85only:
86     1.  To the registrant, if of legal age, or if the
87registrant is a certified homeless youth or a minor who has had
88the disabilities of nonage removed under s. 743.01 or s.
89743.015;
90     2.  To the registrant's parent or guardian or other legal
91representative;
92     3.  Upon receipt of the registrant's death certificate, to
93the registrant's spouse or to the registrant's child,
94grandchild, or sibling, if of legal age, or to the legal
95representative of any of such persons;
96     4.  To any person if the birth record is over 100 years old
97and not under seal pursuant to court order;
98     5.  To a law enforcement agency for official purposes;
99     6.  To any agency of the state or the United States for
100official purposes upon approval of the department; or
101     7.  Upon order of any court of competent jurisdiction.
102     Section 4.  Subsection (1) of section 393.067, Florida
103Statutes, is amended to read:
104     393.067  Facility licensure.-
105     (1)  The agency shall provide through its licensing
106authority and by rule license application procedures, provider
107qualifications, facility and client care standards, requirements
108for client records, requirements for staff qualifications and
109training, and requirements for monitoring foster care
110facilities, group home facilities, residential habilitation
111centers, and comprehensive transitional education programs that
112serve agency clients. However, monitoring requirements for
113foster care facilities, group home facilities, residential
114habilitation centers, and comprehensive transitional education
115programs may not mandate that pornographic materials be
116available in residential facilities that serve the clients of
117the agency.
118     Section 5.  Present paragraph (e) of subsection (8) of
119section 393.11, Florida Statutes, is redesignated as paragraph
120(f) and amended, and a new paragraph (e) is added to that
121subsection, to read:
122     393.11  Involuntary admission to residential services.-
123     (8)  ORDER.-
124     (e)  If an order of involuntary admission to residential
125services provided by the agency is entered by the court, the
126court shall order that the person be released to the agency for
127receipt of appropriate residential services and may not order
128the person to be released directly to a residential service
129provider.
130     (f)(e)  Upon receiving the order, the agency shall, within
13145 days, provide the court with a copy of the person's family or
132individual support plan and copies of all examinations and
133evaluations, outlining the treatment and rehabilitative
134programs. The agency shall document that the person has been
135placed in the most appropriate, least restrictive and cost-
136beneficial residential setting. A copy of the family or
137individual support plan and other examinations and evaluations
138shall be served upon the person and the person's counsel at the
139same time the documents are filed with the court. The agency may
140transfer a person from one residential setting to another
141residential setting and must notify the court and the person's
142counsel of the transfer within 30 days after the transfer is
143completed.
144     Section 6.  Paragraph (a) of subsection (1) of section
145393.125, Florida Statutes, is amended to read:
146     393.125  Hearing rights.-
147     (1)  REVIEW OF AGENCY DECISIONS.-
148     (a)  For Medicaid programs administered by the agency, any
149developmental services applicant or client, or his or her
150parent, guardian advocate, or authorized representative, may
151request a hearing in accordance with federal law and rules
152applicable to Medicaid cases and has the right to request an
153administrative hearing pursuant to ss. 120.569 and 120.57. These
154hearings shall be provided by the Department of Children and
155Family Services pursuant to s. 409.285 and shall follow
156procedures consistent with federal law and rules applicable to
157Medicaid cases. At the conclusion of the hearing, the department
158shall submit its recommended order to the agency as provided in
159s. 120.57(1)(k) and the agency shall issue the final order as
160provided in s. 120.57(1)(l).
161     Section 7.  Paragraphs (f), (h), (j), and (l) of subsection
162(1) and paragraph (a) of subsection (2) of section 409.1671,
163Florida Statutes, are amended to read:
164     409.1671  Foster care and related services; outsourcing.-
165     (1)
166     (f)1.  The Legislature finds that the state has
167traditionally provided foster care services to children who have
168been the responsibility of the state. As such, foster children
169have not had the right to recover for injuries beyond the
170limitations specified in s. 768.28. The Legislature has
171determined that foster care and related services need to be
172outsourced pursuant to this section and that the provision of
173such services is of paramount importance to the state. The
174purpose for such outsourcing is to increase the level of safety,
175security, and stability of children who are or become the
176responsibility of the state. One of the components necessary to
177secure a safe and stable environment for such children is that
178private providers maintain liability insurance. As such,
179insurance needs to be available and remain available to
180nongovernmental foster care and related services providers
181without the resources of such providers being significantly
182reduced by the cost of maintaining such insurance. To ensure
183that these resources are not significantly reduced, specified
184limits of liability are necessary for eligible lead community-
185based providers and subcontractors engaged in the provision of
186services previously performed by the department.
187     2.  The Legislature further finds that, by requiring the
188following minimum levels of insurance, children in outsourced
189foster care and related services will gain increased protection
190and rights of recovery in the event of injury than provided for
191in s. 768.28.
192     (h)  Other than an entity to which s. 768.28 applies, any
193eligible lead community-based provider, as defined in paragraph
194(e), or its employees or officers, except as otherwise provided
195in paragraph (i), must, as a part of its contract, obtain
196general liability coverage for a minimum of $500,000 $1 million
197per occurrence or claim with a policy limit aggregate of $2
198claim/$3 million per incident in general liability insurance
199coverage. The eligible lead community-based provider must also
200require that staff who transport client children and families in
201their personal automobiles in order to carry out their job
202responsibilities obtain minimum bodily injury liability
203insurance in the amount of $100,000 per person claim, $300,000
204per accident incident, on their personal automobiles. In lieu of
205personal motor vehicle insurance, the lead community-based
206provider's casualty, liability, or motor vehicle insurance
207carrier may provide nonowned automobile liability coverage. This
208insurance provides liability insurance for automobiles that the
209provider uses in connection with the provider's business but
210does not own, lease, rent, or borrow. This coverage includes
211automobiles owned by the employees of the provider or a member
212of the employee's household but only while the automobiles are
213used in connection with the provider's business. The nonowned
214automobile coverage for the provider applies as excess coverage
215over any other collectible insurance. The personal automobile
216policy for the employee of the provider shall be primary
217insurance, and the nonowned automobile coverage of the provider
218acts as excess insurance to the primary insurance. The provider
219shall provide a minimum limit of $1 million per occurrence and
220$2 million in the aggregate for in nonowned automobile coverage.
221In any tort action brought against such an eligible lead
222community-based provider or employee, net economic damages shall
223be limited to $500,000 $1 million per occurrence and $1 million
224in the aggregate, liability claim and $100,000 per automobile
225claim, including, but not limited to, past and future medical
226expenses, wage loss, and loss of earning capacity, offset by any
227collateral source payment paid or payable. In any tort action
228for economic damages, the total amount recoverable by all
229claimants shall be limited to no more than $2 million against
230the department, lead community-based providers, and all
231subcontractors involved in the same incident or occurrence, when
232totaled together. In any tort action brought against such an
233eligible lead community-based provider, noneconomic damages
234shall be limited to $200,000 per occurrence and $500,000 in the
235aggregate. In any tort action for noneconomic damages, the total
236amount recoverable by all claimants shall be limited to no more
237than $1 million against the department, lead community-based
238providers, and all subcontractors involved in the same incident
239or occurrence, when totaled together claim. A claims bill may be
240brought on behalf of a claimant pursuant to s. 768.28 for any
241amount exceeding the limits specified in this paragraph. Any
242offset of collateral source payments made as of the date of the
243settlement or judgment shall be in accordance with s. 768.76.
244The lead community-based provider is shall not be liable in tort
245for the acts or omissions of its subcontractors or the officers,
246agents, or employees of its subcontractors.
247     (j)  Any subcontractor of an eligible lead community-based
248provider, as defined in paragraph (e), which is a direct
249provider of foster care and related services to children and
250families, and its employees or officers, except as otherwise
251provided in paragraph (i), must, as a part of its contract,
252obtain general liability insurance coverage for a minimum of
253$500,000 $1 million per occurrence or claim with a policy limit
254aggregate of $2 claim/$3 million per incident in general
255liability insurance coverage. The subcontractor of an eligible
256lead community-based provider must also require that staff who
257transport client children and families in their personal
258automobiles in order to carry out their job responsibilities
259obtain minimum bodily injury liability insurance in the amount
260of $100,000 per person claim, $300,000 per accident incident, on
261their personal automobiles. In lieu of personal motor vehicle
262insurance, the subcontractor's casualty, liability, or motor
263vehicle insurance carrier may provide nonowned automobile
264liability coverage. This insurance provides liability insurance
265for automobiles that the subcontractor uses in connection with
266the subcontractor's business but does not own, lease, rent, or
267borrow. This coverage includes automobiles owned by the
268employees of the subcontractor or a member of the employee's
269household but only while the automobiles are used in connection
270with the subcontractor's business. The nonowned automobile
271coverage for the subcontractor applies as excess coverage over
272any other collectible insurance. The personal automobile policy
273for the employee of the subcontractor shall be primary
274insurance, and the nonowned automobile coverage of the
275subcontractor acts as excess insurance to the primary insurance.
276The subcontractor shall provide a minimum limit of $1 million
277per occurrence and $2 million in the aggregate for in nonowned
278automobile coverage. In any tort action brought against such
279subcontractor or employee, net economic damages shall be limited
280to $500,000 $1 million per occurrence, $1 million in the
281aggregate, liability claim and $100,000 per automobile claim,
282including, but not limited to, past and future medical expenses,
283wage loss, and loss of earning capacity, offset by any
284collateral source payment paid or payable. In any tort action
285for economic damages, the total amount recoverable by all
286claimants shall be limited to no more than $2 million against
287the department, lead community-based providers, and all
288subcontractors involved in the same incident or occurrence, when
289totaled together. In any tort action brought against such
290subcontractor, noneconomic damages shall be limited to $200,000
291per claim and $500,000 per incident. In any tort action for
292noneconomic damages, the total amount recoverable by all
293claimants shall be limited to no more than $1 million against
294the department, lead community-based providers, and all
295subcontractors involved in the same incident or occurrence, when
296totaled together. A claims bill may be brought on behalf of a
297claimant pursuant to s. 768.28 for any amount exceeding the
298limits specified in this paragraph. Any offset of collateral
299source payments made as of the date of the settlement or
300judgment shall be in accordance with s. 768.76.
301     (l)  The Legislature is cognizant of the increasing costs
302of goods and services each year and recognizes that fixing a set
303amount of compensation actually has the effect of a reduction in
304compensation each year. Accordingly, the conditional limitations
305on damages in this section shall be increased at the rate of 5
306percent each year, prorated from the effective date of this
307paragraph to the date at which damages subject to such
308limitations are awarded by final judgment or settlement.
309     (2)(a)  The department may contract for the delivery,
310administration, or management of protective services, the
311services specified in subsection (1) relating to foster care,
312and other related services or programs, as appropriate. The
313department shall use diligent efforts to ensure that retain
314responsibility for the quality of contracted services and
315programs and shall ensure that services are of high quality and
316delivered in accordance with applicable federal and state
317statutes and regulations. However, the department is not liable
318in tort for the acts or omissions of an eligible lead community-
319based provider or the officers, agents, or employees of the
320provider, nor is the department liable in tort for the acts or
321omissions of the subcontractors of eligible lead community-based
322providers or the officers, agents, or employees of its
323subcontractors. The department may not require an eligible lead
324community-based provider or its subcontractors to indemnify the
325department for the department's own acts or omissions, nor may
326the department require an eligible lead community-based provider
327or its subcontractors to include the department as an additional
328insured on any insurance policy. A lead community-based provider
329may not require its subcontractors to add the lead community-
330based provider as an additional insured on any liability policy.
331The department must adopt written policies and procedures for
332monitoring the contract for delivery of services by lead
333community-based providers. These policies and procedures must,
334at a minimum, address the evaluation of fiscal accountability
335and program operations, including provider achievement of
336performance standards, provider monitoring of subcontractors,
337and timely followup of corrective actions for significant
338monitoring findings related to providers and subcontractors.
339These policies and procedures must also include provisions for
340reducing the duplication of the department's program monitoring
341activities both internally and with other agencies, to the
342extent possible. The department's written procedures must ensure
343that the written findings, conclusions, and recommendations from
344monitoring the contract for services of lead community-based
345providers are communicated to the director of the provider
346agency as expeditiously as possible.
347     Section 8.  Present subsection (2) of section 916.1093,
348Florida Statutes, is renumbered as subsection (3), and a new
349subsection (2) is added to that section to read:
350     916.1093  Operation and administration; rules.-
351     (2)  The agency shall ensure that there is a sufficient
352number of civil facilities to provide community-based training
353for defendants charged with sex offenses so that alternative
354placement options are available. If the agency determines that
355there are two or fewer facilities available to provide
356community-based training for defendants charged with sex
357offenses, the agency shall immediately procure additional
358facilities.
359     Section 9.  Subsection (3) of section 916.3025, Florida
360Statutes, is amended to read:
361     916.3025  Jurisdiction of committing court.-
362     (3)  The committing court shall consider a petition to
363involuntarily admit a defendant whose charges have been
364dismissed to residential services provided by the agency and,
365when applicable, to continue secure placement of such person as
366provided in s. 916.303. If a defendant whose criminal charges
367have been dismissed is involuntarily committed to residential
368services provided by the agency, the committing court shall
369order that the defendant be released to the agency for receipt
370of appropriate residential services and may not order that the
371defendant be released directly to a residential service
372provider. The committing court shall retain jurisdiction over
373such person so long as he or she remains in secure placement or
374is on conditional release as provided in s. 916.304. However,
375upon request, the court may transfer continuing jurisdiction to
376the court in the circuit where the defendant resides. The
377defendant may not be released from an order for secure placement
378except by order of the court.
379     Section 10.  Task force for the protection of persons with
380developmental disabilities.-The Legislature recognizes the
381rights of individuals who are developmentally disabled to lead
382full and rewarding lives. The Legislature also recognizes the
383state's obligation to protect vulnerable adults from sexual
384abuse.
385     (1)  In recognition of the social, legal, and environmental
386complexities associated with this issue, the Agency for Persons
387with Disabilities shall establish a task force to gather input
388for the creation of guidelines and procedures for providers of
389residential services relating to sexual activity among the
390residents of its facilities.
391     (2)  The task force shall be composed of the following
392members:
393     (a)  The director of the Agency for Persons with
394Disabilities or his or her designee.
395     (b)  The director of the adult protective services program
396within the Department of Children and Family Services.
397     (c)  The executive director of The Arc of Florida.
398     (d)  A family board member of The Arc of Florida appointed
399by the executive director of The Arc of Florida.
400     (e)  The chair of the Family Care Council Florida.
401     (f)  A parent representative from the Family Care Council
402Florida appointed by the chair of the Family Care Council
403Florida.
404     (g)  A representative from the Developmental Disabilities
405Council.
406     (h)  A representative from Disability Rights Florida.
407     (i)  A representative from the Florida courts.
408     (j)  A representative from the Florida Prosecuting
409Attorneys Association.
410     (k)  A representative from the Florida Public Defender
411Association.
412     (l)  A staff member of the University Centers for
413Excellence in Developmental Disabilities at the University of
414South Florida, the Florida Center for Inclusive Communities.
415     (m)  A self-advocate.
416     (n)  A representative from an intensive behavior
417residential habilitation provider.
418     (3)  The task force shall seek input from self-advocates,
419family members, universities and colleges, and other pertinent
420entities.
421     (4)  The agency shall provide administrative support to the
422task force.
423     (5)  Members of the task force shall serve without
424compensation.
425     (6)  The task force shall submit a report of its findings
426to the President of the Senate and the Speaker of the House of
427Representatives by November 1, 2011.
428     Section 11.  This act shall take effect July 1, 2011.


CODING: Words stricken are deletions; words underlined are additions.