The Florida Senate

409.1671  Foster care and related services; privatization.--

(1)(a)  It is the intent of the Legislature that the Department of Children and Family Services shall privatize the provision of foster care and related services statewide. It is further the Legislature's intent to encourage communities and other stakeholders in the well-being of children to participate in assuring that children are safe and well-nurtured. However, while recognizing that some local governments are presently funding portions of certain foster care and related services programs and may choose to expand such funding in the future, the Legislature does not intend by its privatization of foster care and related services that any county, municipality, or special district be required to assist in funding programs that previously have been funded by the state. Nothing in this paragraph prohibits any county, municipality, or special district from future voluntary funding participation in foster care and related services. As used in this section, the term "privatize" means to contract with competent, community-based agencies. The department shall submit a plan to accomplish privatization statewide, through a competitive process, phased in over a 3-year period beginning January 1, 2000. This plan must be developed with local community participation, including, but not limited to, input from community-based providers that are currently under contract with the department to furnish community-based foster care and related services, and must include a methodology for determining and transferring all available funds, including federal funds that the provider is eligible for and agrees to earn and that portion of general revenue funds which is currently associated with the services that are being furnished under contract. The methodology must provide for the transfer of funds appropriated and budgeted for all services and programs that have been incorporated into the project, including all management, capital (including current furniture and equipment), and administrative funds to accomplish the transfer of these programs. This methodology must address expected workload and at least the 3 previous years' experience in expenses and workload. With respect to any district or portion of a district in which privatization cannot be accomplished within the 3-year timeframe, the department must clearly state in its plan the reasons the timeframe cannot be met and the efforts that should be made to remediate the obstacles, which may include alternatives to total privatization, such as public-private partnerships. As used in this section, the term "related services" includes, but is not limited to, family preservation, independent living, emergency shelter, residential group care, foster care, therapeutic foster care, intensive residential treatment, foster care supervision, case management, postplacement supervision, permanent foster care, and family reunification. Unless otherwise provided for, beginning in fiscal year 1999-2000, either the state attorney or the Office of the Attorney General shall provide child welfare legal services, pursuant to chapter 39 and other relevant provisions, in Sarasota, Pinellas, Pasco, Broward, and Manatee Counties. Such legal services shall commence and be effective, as soon as determined reasonably feasible by the respective state attorney or the Office of the Attorney General, after the privatization of associated programs and child protective investigations has occurred. When a private nonprofit agency has received case management responsibilities, transferred from the state under this section, for a child who is sheltered or found to be dependent and who is assigned to the care of the privatization project, the agency may act as the child's guardian for the purpose of registering the child in school if a parent or guardian of the child is unavailable and his or her whereabouts cannot reasonably be ascertained. The private nonprofit agency may also seek emergency medical attention for such a child, but only if a parent or guardian of the child is unavailable, his or her whereabouts cannot reasonably be ascertained, and a court order for such emergency medical services cannot be obtained because of the severity of the emergency or because it is after normal working hours. However, the provider may not consent to sterilization, abortion, or termination of life support. If a child's parents' rights have been terminated, the nonprofit agency shall act as guardian of the child in all circumstances.

(b)  It is the intent of the Legislature that the department will continue to work towards full privatization by initiating the competitive procurement process in each county by January 1, 2003. In order to provide for an adequate transition period to develop the necessary administrative and service delivery capacity in each community, the full transfer of all foster care and related services must be completed statewide by December 31, 2004.

(c)  As used in this section, the term "eligible lead community-based provider" means a single agency with which the department shall contract for the provision of child protective services in a community that is no smaller than a county. The secretary of the department may authorize more than one eligible lead community-based provider within a single county when to do so will result in more effective delivery of foster care and related services. To compete for a privatization project, such agency must have:

1.  The ability to coordinate, integrate, and manage all child protective services in the designated community in cooperation with child protective investigations.

2.  The ability to ensure continuity of care from entry to exit for all children referred from the protective investigation and court systems.

3.  The ability to provide directly, or contract for through a local network of providers, all necessary child protective services.

4.  The willingness to accept accountability for meeting the outcomes and performance standards related to child protective services established by the Legislature and the Federal Government.

5.  The capability and the willingness to serve all children referred to it from the protective investigation and court systems, regardless of the level of funding allocated to the community by the state, provided all related funding is transferred.

6.  The willingness to ensure that each individual who provides child protective services completes the training required of child protective service workers by the Department of Children and Family Services.

7.  The ability to maintain eligibility to receive all federal child welfare funds, including Title IV-E and IV-A funds, currently being used by the Department of Children and Family Services.

8.  Written agreements with Healthy Families Florida lead entities in their community, pursuant to s. 409.153, to promote cooperative planning for the provision of prevention and intervention services.

(d)1.  If attempts to competitively procure services through an eligible lead community-based provider as defined in paragraph (c) do not produce a capable and willing agency, the department shall develop a plan in collaboration with the local community alliance. The plan must detail how the community will continue to implement privatization, to be accomplished by December 31, 2004, through competitively procuring either the specific components of foster care and related services or comprehensive services for defined eligible populations of children and families from qualified licensed agencies as part of its efforts to develop the local capacity for a community-based system of coordinated care. The plan must ensure local control over the management and administration of the service provision in accordance with the intent of this section and may include recognized best business practices, including some form of public or private partnerships. In the absence of a community alliance, the plan must be submitted to the President of the Senate and the Speaker of the House of Representatives for their comments.

2.  The Legislature finds that the state has traditionally provided foster care services to children who have been the responsibility of the state. As such, foster children have not had the right to recover for injuries beyond the limitations specified in s. 768.28 The Legislature has determined that foster care and related services need to be privatized pursuant to this section and that the provision of such services is of paramount importance to the state. The purpose for such privatization is to increase the level of safety, security, and stability of children who are or become the responsibility of the state. One of the components necessary to secure a safe and stable environment for such children is that private providers maintain liability insurance. As such, insurance needs to be available and remain available to nongovernmental foster care and related services providers without the resources of such providers being significantly reduced by the cost of maintaining such insurance.

3.  The Legislature further finds that, by requiring the following minimum levels of insurance, children in privatized foster care and related services will gain increased protection and rights of recovery in the event of injury than provided for in s. 768.28

(e)  In any county in which a service contract has not been executed by December 31, 2004, the department shall ensure access to a model comprehensive residential services program as described in s. 409.1677 which, without imposing undue financial, geographic, or other barriers, ensures reasonable and appropriate participation by the family in the child's program.

1.  In order to ensure that the program is operational by December 31, 2004, the department must, by December 31, 2003, begin the process of establishing access to a program in any county in which the department has not either entered into a transition contract or approved a community plan, as described in paragraph (d), which ensures full privatization by the statutory deadline.

2.  The program must be procured through a competitive process.

3.  The Legislature does not intend for the provisions of this paragraph to substitute for the requirement that full conversion to community-based care be accomplished.

(f)  Other than an entity to which s. 768.28 applies, any eligible lead community-based provider, as defined in paragraph (c), or its employees or officers, except as otherwise provided in paragraph (g), must, as a part of its contract, obtain a minimum of $1 million per claim/$3 million per incident in general liability insurance coverage. The eligible lead community-based provider must also require that staff who transport client children and families in their personal automobiles in order to carry out their job responsibilities obtain minimum bodily injury liability insurance in the amount of $100,000 per claim, $300,000 per incident, on their personal automobiles. In any tort action brought against such an eligible lead community-based provider or employee, net economic damages shall be limited to $1 million per liability claim and $100,000 per automobile claim, including, but not limited to, past and future medical expenses, wage loss, and loss of earning capacity, offset by any collateral source payment paid or payable. In any tort action brought against such an eligible lead community-based provider, noneconomic damages shall be limited to $200,000 per claim. A claims bill may be brought on behalf of a claimant pursuant to s. 768.28 for any amount exceeding the limits specified in this paragraph. Any offset of collateral source payments made as of the date of the settlement or judgment shall be in accordance with s. 768.76 The lead community-based provider shall not be liable in tort for the acts or omissions of its subcontractors or the officers, agents, or employees of its subcontractors.

(g)  The liability of an eligible lead community-based provider described in this section shall be exclusive and in place of all other liability of such provider. The same immunities from liability enjoyed by such providers shall extend as well to each employee of the provider when such employee is acting in furtherance of the provider's business, including the transportation of clients served, as described in this subsection, in privately owned vehicles. Such immunities shall not be applicable to a provider or an employee who acts in a culpably negligent manner or with willful and wanton disregard or unprovoked physical aggression when such acts result in injury or death or such acts proximately cause such injury or death; nor shall such immunities be applicable to employees of the same provider when each is operating in the furtherance of the provider's business, but they are assigned primarily to unrelated works within private or public employment. The same immunity provisions enjoyed by a provider shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct that caused the alleged injury arose within the course and scope of those managerial or policymaking duties. Culpable negligence is defined as reckless indifference or grossly careless disregard of human life.

(h)  Any subcontractor of an eligible lead community-based provider, as defined in paragraph (c), which is a direct provider of foster care and related services to children and families, and its employees or officers, except as otherwise provided in paragraph (g), must, as a part of its contract, obtain a minimum of $1 million per claim/$3 million per incident in general liability insurance coverage. The subcontractor of an eligible lead community-based provider must also require that staff who transport client children and families in their personal automobiles in order to carry out their job responsibilities obtain minimum bodily injury liability insurance in the amount of $100,000 per claim, $300,000 per incident, on their personal automobiles. In any tort action brought against such subcontractor or employee, net economic damages shall be limited to $1 million per liability claim and $100,000 per automobile claim, including, but not limited to, past and future medical expenses, wage loss, and loss of earning capacity, offset by any collateral source payment paid or payable. In any tort action brought against such subcontractor, noneconomic damages shall be limited to $200,000 per claim. A claims bill may be brought on behalf of a claimant pursuant to s. 768.28 for any amount exceeding the limits specified in this paragraph. Any offset of collateral source payments made as of the date of the settlement or judgment shall be in accordance with s. 768.76

(i)  The liability of a subcontractor of an eligible lead community-based provider that is a direct provider of foster care and related services as described in this section shall be exclusive and in place of all other liability of such provider. The same immunities from liability enjoyed by such subcontractor provider shall extend as well to each employee of the subcontractor when such employee is acting in furtherance of the subcontractor's business, including the transportation of clients served, as described in this subsection, in privately owned vehicles. Such immunities shall not be applicable to a subcontractor or an employee who acts in a culpably negligent manner or with willful and wanton disregard or unprovoked physical aggression when such acts result in injury or death or such acts proximately cause such injury or death; nor shall such immunities be applicable to employees of the same subcontractor when each is operating in the furtherance of the subcontractor's business, but they are assigned primarily to unrelated works within private or public employment. The same immunity provisions enjoyed by a subcontractor shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct that caused the alleged injury arose within the course and scope of those managerial or policymaking duties. Culpable negligence is defined as reckless indifference or grossly careless disregard of human life.

(j)  The Legislature is cognizant of the increasing costs of goods and services each year and recognizes that fixing a set amount of compensation actually has the effect of a reduction in compensation each year. Accordingly, the conditional limitations on damages in this section shall be increased at the rate of 5 percent each year, prorated from the effective date of this paragraph to the date at which damages subject to such limitations are awarded by final judgment or settlement.

¹(k)  Notwithstanding the provisions of paragraph (a) and chapter 287, and for the 2002-2003 fiscal year only, the Department of Children and Family Services may combine the current community-based care lead agency contracts for Sarasota, Manatee, and DeSoto Counties into a single contract. This paragraph expires July 1, 2003.

(2)(a)  The department may contract for the delivery, administration, or management of protective services, the services specified in subsection (1) relating to foster care, and other related services or programs, as appropriate. The department shall retain responsibility for the quality of contracted services and programs and shall ensure that services are delivered in accordance with applicable federal and state statutes and regulations. The department must adopt written policies and procedures for monitoring the contract for delivery of services by lead community-based providers. These policies and procedures must, at a minimum, address the evaluation of fiscal accountability and program operations, including provider achievement of performance standards, provider monitoring of subcontractors, and timely followup of corrective actions for significant monitoring findings related to providers and subcontractors. These policies and procedures must also include provisions for reducing the duplication of the department's program monitoring activities both internally and with other agencies, to the extent possible. The department's written procedures must ensure that the written findings, conclusions, and recommendations from monitoring the contract for services of lead community-based providers are communicated to the director of the provider agency as expeditiously as possible.

(b)  Persons employed by the department in the provision of foster care and related services whose positions are being privatized pursuant to this statute shall be given hiring preference by the provider, if provider qualifications are met.

(3)(a)  In order to help ensure a seamless child protection system, the department shall ensure that contracts entered into with community-based agencies pursuant to this section include provisions for a case-transfer process to determine the date that the community-based agency will initiate the appropriate services for a child and family. This case-transfer process must clearly identify the closure of the protective investigation and the initiation of service provision. At the point of case transfer, and at the conclusion of an investigation, the department must provide a complete summary of the findings of the investigation to the community-based agency.

(b)  The contracts must also ensure that each community-based agency shall furnish information on its activities in all cases in client case records. A provider may not discontinue services on any voluntary case without prior written notification to the department 30 days before planned case closure. If the department disagrees with the recommended case closure date, written notification to the provider must be provided before the case closure date.

(c)  The contract between the department and community-based agencies must include provisions that specify the procedures to be used by the parties to resolve differences in interpreting the contract or to resolve disputes as to the adequacy of the parties' compliance with their respective obligations under the contract.

(4)(a)  The department shall establish a quality assurance program for privatized services. The quality assurance program shall be based on standards established by a national accrediting organization such as the Council on Accreditation of Services for Families and Children, Inc. (COA) or CARF--the Rehabilitation Accreditation Commission. The department may develop a request for proposal for such oversight. This program must be developed and administered at a statewide level. The Legislature intends that the department be permitted to have limited flexibility to use funds for improving quality assurance. To this end, effective January 1, 2000, the department may transfer up to 0.125 percent of the total funds from categories used to pay for these contractually provided services, but the total amount of such transferred funds may not exceed $300,000 in any fiscal year. When necessary, the department may establish, in accordance with s. 216.177, additional positions that will be exclusively devoted to these functions. Any positions required under this paragraph may be established, notwithstanding ss. 216.262(1)(a) and 216.351 The department, in consultation with the community-based agencies that are undertaking the privatized projects, shall establish minimum thresholds for each component of service, consistent with standards established by the Legislature. Each program operated under contract with a community-based agency must be evaluated annually by the department. The department shall submit an annual report regarding quality performance, outcome measure attainment, and cost efficiency to the President of the Senate, the Speaker of the House of Representatives, the minority leader of each house of the Legislature, and the Governor no later than January 31 of each year for each project in operation during the preceding fiscal year.

(b)  The department shall use these findings in making recommendations to the Governor and the Legislature for future program and funding priorities in the child welfare system.

(5)(a)  The community-based agency must comply with statutory requirements and agency rules in the provision of contractual services. Each foster home, therapeutic foster home, emergency shelter, or other placement facility operated by the community-based agency or agencies must be licensed by the Department of Children and Family Services under chapter 402 or this chapter. Each community-based agency must be licensed as a child-caring or child-placing agency by the department under this chapter. The department, in order to eliminate or reduce the number of duplicate inspections by various program offices, shall coordinate inspections required pursuant to licensure of agencies under this section.

(b)  Substitute care providers who are licensed under s. 409.175 and have contracted with a lead agency authorized under this section shall also be authorized to provide registered or licensed family day care under s. 402.313, if consistent with federal law and if the home has met the requirements of s. 402.313

(c)  A dually licensed home under this section shall be eligible to receive both an out-of-home care payment and a subsidized child care payment for the same child pursuant to federal law. The department may adopt administrative rules necessary to administer this paragraph.

(6)  Beginning January 1, 1999, and continuing at least through June 30, 2000, the Department of Children and Family Services shall privatize all foster care and related services in district 5 while continuing to contract with the current model programs in districts 1, 4, and 13, and in subdistrict 8A, and shall expand the subdistrict 8A pilot program to incorporate Manatee County. Planning for the district 5 privatization shall be done by providers that are currently under contract with the department for foster care and related services and shall be done in consultation with the department. A lead provider of the district 5 program shall be competitively selected, must demonstrate the ability to provide necessary comprehensive services through a local network of providers, and must meet criteria established in this section. Contracts with organizations responsible for the model programs must include the management and administration of all privatized services specified in subsection (1). However, the department may use funds for contract management only after obtaining written approval from the Executive Office of the Governor. The request for such approval must include, but is not limited to, a statement of the proposed amount of such funds and a description of the manner in which such funds will be used. If the community-based organization selected for a model program under this subsection is not a Medicaid provider, the organization shall be issued a Medicaid provider number pursuant to s. 409.907 for the provision of services currently authorized under the state Medicaid plan to those children encompassed in this model and in a manner not to exceed the current level of state expenditure.

(7)  The department, in consultation with existing lead agencies, shall develop a proposal regarding the long-term use and structure of a statewide shared earnings program which addresses the financial risk to eligible lead community-based providers resulting from unanticipated caseload growth or from significant changes in client mixes or services eligible for federal reimbursement. The recommendations in the statewide proposal must also be available to entities of the department until the conversion to community-based care takes place. At a minimum, the proposal must allow for use of federal earnings received from child welfare programs, which earnings are determined by the department to be in excess of the amount appropriated in the General Appropriations Act, to be used for specific purposes. These purposes include, but are not limited to:

(a)  Significant changes in the number or composition of clients eligible to receive services.

(b)  Significant changes in the services that are eligible for reimbursement.

(c)  Significant changes in the availability of federal funds.

(d)  Shortfalls in state funds available for eligible or ineligible services.

(e)  Significant changes in the mix of available funds.

(f)  Scheduled or unanticipated, but necessary, advances to providers or other cash-flow issues.

(g)  Proposals to participate in optional Medicaid services or other federal grant opportunities.

(h)  Appropriate incentive structures.

(i)  Continuity of care in the event of lead agency failure, discontinuance of service, or financial misconduct.

The department shall further specify the necessary steps to ensure the financial integrity of these dollars and their continued availability on an ongoing basis. The final proposal shall be submitted to the Legislative Budget Commission for formal adoption before December 31, 2002. If the Legislative Budget Commission refuses to concur with the adoption of the proposal, the department shall present its proposal in the form of recommended legislation to the President of the Senate and the Speaker of the House of Representatives before the commencement of the next legislative session. For fiscal year 2003-2004 and annually thereafter, the Department of Children and Family Services may request in its legislative budget request, and the Governor may recommend, the funding necessary to carry out paragraph (i) from excess federal earnings. The General Appropriations Act shall include any funds appropriated for this purpose in a lump sum in the Administered Funds Program, which funds constitute partial security for lead agency contract performance. The department shall use this appropriation to offset the need for a performance bond for that year after a comparison of risk to the funds available. In no event shall this performance bond exceed 2.5 percent of the annual contract value. The department may separately require a bond to mitigate the financial consequences of potential acts of malfeasance, misfeasance, or criminal violations by the provider. Prior to the release of any funds in the lump sum, the department shall submit a detailed operational plan, which must identify the sources of specific trust funds to be used. The release of the trust fund shall be subject to the notice and review provisions of s. 216.177 However, the release shall not require approval of the Legislative Budget Commission.

(8)  Notwithstanding the provisions of s. 215.425, all documented federal funds earned for the current fiscal year by the department and community-based agencies which exceed the amount appropriated by the Legislature shall be distributed to all entities that contributed to the excess earnings based on a schedule and methodology developed by the department and approved by the Executive Office of the Governor. Distribution shall be pro rata based on total earnings and shall be made only to those entities that contributed to excess earnings. Excess earnings of community-based agencies shall be used only in the service district in which they were earned. Additional state funds appropriated by the Legislature for community-based agencies or made available pursuant to the budgetary amendment process described in s. 216.177 shall be transferred to the community-based agencies. The department shall amend a community-based agency's contract to permit expenditure of the funds. The distribution program applies only to entities that were under privatization contracts as of July 1, 2002.

(9)  Each district and subdistrict that participates in the model program effort or any future privatization effort as described in this section must thoroughly analyze and report the complete direct and indirect costs of delivering these services through the department and the full cost of privatization, including the cost of monitoring and evaluating the contracted services.

History.--s. 49, ch. 94-164; s. 5, ch. 96-402; s. 193, ch. 97-101; s. 1, ch. 98-180; s. 14, ch. 99-168; s. 2, ch. 99-206; s. 9, ch. 2000-139; s. 10, ch. 2000-217; s. 4, ch. 2001-68; s. 8, ch. 2001-191; s. 4, ch. 2002-219; s. 17, ch. 2002-402.

¹Note.--Section 17, ch. 2002-402, added paragraph (1)(k) "[i]n order to implement Specific Appropriations 321-325A of the 2002-2003 General Appropriations Act."