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The Florida Senate

2004 Florida Statutes

Section 402.73, Florida Statutes 2004

402.73  Contracting and performance standards.--

(1)  The Department of Children and Family Services shall establish performance standards for all contracted client services. Notwithstanding s. 287.057(5)(f), the department must competitively procure any contract for client services when any of the following occurs:

(a)  The provider fails to meet appropriate performance standards established by the department after the provider has been given a reasonable opportunity to achieve the established standards.

(b)  A new program or service has been authorized and funded by the Legislature and the annual value of the contract for such program or service is $300,000 or more.

(c)  The department has concluded, after reviewing market prices and available treatment options, that there is evidence that the department can improve the performance outcomes produced by its contract resources. At a minimum, the department shall review market prices and available treatment options biennially. The department shall compile the results of the biennial review and include the results in its annual performance report to the Legislature pursuant to chapter 94-249, Laws of Florida. The department shall provide notice and an opportunity for public comment on its review of market prices and available treatment options.

(2)  The competitive requirements of subsection (1) must be initiated for each contract that meets the criteria of this subsection, unless the secretary makes a written determination that particular facts and circumstances require deferral of the competitive process. Facts and circumstances must be specifically described for each individual contract proposed for deferral and must include one or more of the following:

(a)  An immediate threat to the health, safety, or welfare of the department's clients.

(b)  A threat to appropriate use or disposition of facilities that have been financed in whole, or in substantial part, through contracts or agreements with a state agency.

(c)  A threat to the service infrastructure of a community which could endanger the well-being of the department's clients.

Competitive procurement of client services contracts that meet the criteria in subsection (1) may not be deferred for longer than 1 year.

(3)  The Legislature intends that the department obtain services in the manner that is most cost-effective for the state, that provides the greatest long-term benefits to the clients receiving services, and that minimizes the disruption of client services. In order to meet these legislative goals, the department may adopt rules providing procedures for the competitive procurement of contracted client services which represent an alternative to the request-for-proposal or invitation-to-bid process. The alternative competitive procedures shall permit the department to solicit professional qualifications from prospective providers and to evaluate such statements of qualification before requesting service proposals. The department may limit the firms invited to submit service proposals to only those firms that have demonstrated the highest level of professional capability to provide the services under consideration, but may not invite fewer than three firms to submit service proposals, unless fewer than three firms submitted satisfactory statements of qualification. The alternative procedures must, at a minimum, allow the department to evaluate competing proposals and select the proposal that provides the greatest benefit to the state while considering the quality of the services, dependability, and integrity of the provider, the dependability of the provider's services, the experience of the provider in serving target populations or client groups substantially identical to members of the target population for the contract in question, and the ability of the provider to secure local funds to support the delivery of services, including, but not limited to, funds derived from local governments. These alternative procedures need not conform to the requirements of s. 287.042 or s. 287.057(1) or (2).

(4)  The department shall review the period for which it executes contracts and, to the greatest extent practicable, shall execute multiyear contracts to make the most efficient use of the resources devoted to contract processing and execution.

(5)  When it is in the best interest of a defined segment of its consumer population, the department may competitively procure and contract for systems of treatment or service that involve multiple providers, rather than procuring and contracting for treatment or services separately from each participating provider. The department must ensure that all providers that participate in the treatment or service system meet all applicable statutory, regulatory, service-quality, and cost-control requirements. If other governmental entities or units of special purpose government contribute matching funds to the support of a given system of treatment or service, the department shall formally request information from those funding entities in the procurement process and may take the information received into account in the selection process. If a local government contributes match to support the system of treatment or contracted service and if the match constitutes at least 25 percent of the value of the contract, the department shall afford the governmental match contributor an opportunity to name an employee as one of the persons required by s. 287.057(17) to evaluate or negotiate certain contracts, unless the department sets forth in writing the reason why such inclusion would be contrary to the best interest of the state. Any employee so named by the governmental match contributor shall qualify as one of the persons required by s. 287.057(17). No governmental entity or unit of special purpose government may name an employee as one of the persons required by s. 287.057(17) if it, or any of its political subdivisions, executive agencies, or special districts, intends to compete for the contract to be awarded. The governmental funding entity or match contributor shall comply with any deadlines and procurement procedures established by the department. The department may also involve nongovernmental funding entities in the procurement process when appropriate.

(6)  The department may contract for or provide assessment and case management services independently from treatment services.

(7)  The department shall adopt, by rule, provisions for including in its contracts incremental penalties to be imposed by its contract managers on a service provider due to the provider's failure to comply with a requirement for corrective action. Any financial penalty that is imposed upon a provider may not be paid from funds being used to provide services to clients, and the provider may not reduce the amount of services being delivered to clients as a method for offsetting the impact of the penalty. If a financial penalty is imposed upon a provider that is a corporation, the department shall notify, at a minimum, the board of directors of the corporation. The department may notify, at its discretion, any additional parties that the department believes may be helpful in obtaining the corrective action that is being sought. Further, the rules adopted by the department must include provisions that permit the department to deduct the financial penalties from funds that would otherwise be due to the provider, not to exceed 10 percent of the amount that otherwise would be due to the provider for the period of noncompliance. If the department imposes a financial penalty, it shall advise the provider in writing of the cause for the penalty. A failure to include such deductions in a request for payment constitutes a ground for the department to reject that request for payment. The remedies identified in this subsection do not limit or restrict the department's application of any other remedy available to it in the contract or under law. The remedies described in this subsection may be cumulative and may be assessed upon each separate failure to comply with instructions from the department to complete corrective action.

(8)  The department shall develop standards of conduct and a range of disciplinary actions for its employees which are specifically related to carrying out contracting responsibilities.

(9)  The department must implement systems and controls to ensure financial integrity and service provision quality in the developmental services Medicaid waiver service system.

(10)  If a provider fails to meet the performance standards established in the contract, the department may allow a reasonable period for the provider to correct performance deficiencies. If performance deficiencies are not resolved to the satisfaction of the department within the prescribed time, and if no extenuating circumstances can be documented by the provider to the department's satisfaction, the department must cancel the contract with the provider. The department may not enter into a new contract with that same provider for the services for which the contract was previously canceled for a period of at least 24 months after the date of cancellation. If an adult substance abuse services provider fails to meet the performance standards established in the contract, the department may allow a reasonable period, not to exceed 6 months, for the provider to correct performance deficiencies. If the performance deficiencies are not resolved to the satisfaction of the department within 6 months, the department must cancel the contract with the adult substance abuse provider, unless there is no other qualified provider in the service district.

(11)  The department shall include in its standard contract document a requirement that any state funds provided for the purchase of or improvements to real property are contingent upon the contractor or political subdivision granting to the state a security interest in the property at least to the amount of the state funds provided for at least 5 years from the date of purchase or the completion of the improvements or as further required by law. The contract must include a provision that, as a condition of receipt of state funding for this purpose, the provider agrees that, if it disposes of the property before the department's interest is vacated, the provider will refund the proportionate share of the state's initial investment, as adjusted by depreciation.

(12)  The department shall develop and refine contracting and accountability methods that are administratively efficient and that provide for optimal provider performance.

(13)  The department may competitively procure any contract when it deems it is in the best interest of the state to do so. The requirements described in subsection (1) do not, and may not be construed to, limit in any way the department's ability to competitively procure any contract it executes, and the absence of any or all of the criteria described in subsection (1) may not be used as the basis for an administrative or judicial protest of the department's determination to conduct competition, make an award, or execute any contract.

(14)  A contract may include cost-neutral, performance-based incentives that may vary according to the extent a provider achieves or surpasses the performance standards set forth in the contract. Such incentives may be weighted proportionally to reflect the extent to which the provider has demonstrated that it has consistently met or exceeded the contractual requirements and the department's performance standards.

(15)  Nothing contained in chapter 287 shall require competitive bids for health services involving examination, diagnosis, or treatment.

History.--s. 7, ch. 2000-139; s. 110, ch. 2001-266; s. 15, ch. 2001-278; s. 64, ch. 2002-1; s. 36, ch. 2002-207.