CODING: Words stricken are deletions; words underlined are additions.House Bill 1673
Florida House of Representatives - 1997 HB 1673
By Representatives Reddick, Sindler, Bloom, Feeney,
Trovillion and Logan
1 A bill to be entitled
2 An act relating to health care providers;
3 amending s. 766.1115, F.S.; revising
4 legislative findings and intent with respect to
5 sovereign immunity for health care providers
6 that provide free medical services; revising
7 definitions; redefining the term "low-income"
8 to remove application of the act to persons who
9 are eligible for Medicaid; deleting obsolete
10 dates; revising terminology to reflect the
11 transfer of duties to the Department of Health
12 and the Agency for Health Care Administration;
13 deleting alternative notice provisions that
14 apply to federally funded community health
15 centers; extending sovereign immunity to
16 certain teaching hospitals; requiring specified
17 state agencies to contract with teaching
18 hospitals for provision of indigent health care
19 services and medical education services;
20 abrogating the repeal of s. 766.1115, F.S., as
21 it appears in s. 1 of chapter 92-278, Laws of
22 Florida; reenacting s. 768.28(9), F.S.,
23 relating to waiver of sovereign immunity in
24 tort actions, to incorporate said amendment in
25 a reference; providing effective dates.
26
27 Be It Enacted by the Legislature of the State of Florida:
28
29 Section 1. Subsections (2), (3), (4), and (5) of
30 section 766.1115, Florida Statutes, 1996 Supplement, are
31 amended, present subsections (10) and (11) are renumbered as
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1 subsections (11) and (12), respectively, and new subsection
2 (10) is added to said section, to read:
3 766.1115 Health care providers; creation of agency
4 relationship with governmental contractors.--
5 (2) FINDINGS AND INTENT.--The Legislature finds that a
6 significant proportion of the indigent, uninsured residents of
7 this state who are uninsured or Medicaid recipients are unable
8 to access needed health care because health care providers
9 fear the increased risk of medical malpractice liability. It
10 is the intent of the Legislature that access to medical care
11 for indigent, uninsured residents be expanded and improved by
12 providing governmental protection to health care providers
13 that who offer free quality medical services to such
14 underserved populations of the state. Therefore, it is the
15 intent of the Legislature to ensure that health care providers
16 that voluntarily contract to deliver uncompensated health care
17 services to indigent, uninsured residents of the state when
18 referred by a governmental contractor are professionals who
19 contract to provide such services as agents of the state and
20 are protected by provided sovereign immunity.
21 (3) DEFINITIONS.--As used in this section, the term:
22 (a) "Contract" means an agreement executed in
23 compliance with this section between a health care provider
24 and a governmental contractor. This contract shall allow the
25 health care provider to deliver health care services to
26 low-income recipients as an agent of the governmental
27 contractor. The contract must be for volunteer, uncompensated
28 services.
29 (b) "Department" means the Department of Health and
30 Rehabilitative Services.
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1 (c) "Governmental contractor" means the department,
2 counties, county health departments, municipalities, other
3 units of local government, a special taxing district with
4 health care responsibilities, or a hospital owned and operated
5 by a governmental entity.
6 (d) "Health care provider" or "provider" means an
7 individual, a corporation, a partnership, an organization, a
8 facility, a federally qualified health center, a professional
9 association, or a local professional society that delivers
10 health care services or whose primary mission is health care.:
11 1. A birth center licensed under chapter 383.
12 2. An ambulatory surgical center licensed under
13 chapter 395.
14 3. A hospital licensed under chapter 395.
15 4. A physician licensed, or physician assistant
16 certified, under chapter 458.
17 5. An osteopathic physician licensed, or osteopathic
18 physician assistant certified, under chapter 459.
19 6. A chiropractic physician licensed under chapter
20 460.
21 7. A podiatrist licensed under chapter 461.
22 8. A registered nurse, nurse midwife, licensed
23 practical nurse, or advanced registered nurse practitioner
24 licensed or registered under chapter 464 or any facility which
25 employs nurses licensed or registered under chapter 464 to
26 supply all or part of the care delivered under this section.
27 9. A midwife licensed under chapter 467.
28 10. A health maintenance organization certificated
29 under part I of chapter 641.
30 11. A health care professional association and its
31 employees or a corporate medical group and its employees.
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1 12. Any other medical facility the primary purpose of
2 which is to deliver human medical diagnostic services or which
3 delivers nonsurgical human medical treatment, and which
4 includes an office maintained by a provider.
5 13. Any other health care professional, practitioner,
6 provider, or facility under contract with a governmental
7 contractor.
8
9 The term includes any nonprofit corporation qualified as
10 exempt from federal income taxation under s. 501(c) of the
11 Internal Revenue Code which delivers health care services
12 provided by licensed professionals listed in this paragraph,
13 any federally funded community health center, and any
14 volunteer corporation or volunteer health care provider that
15 delivers health care services.
16 (e) "Low-income" means:
17 1. A person who is Medicaid-eligible under Florida
18 law;
19 1.2. A person who is without health insurance and
20 whose family income does not exceed 150 percent of the federal
21 poverty level as defined annually by the federal Office of
22 Management and Budget; or
23 2.3. Any client of the department who voluntarily
24 chooses to participate in a program offered or approved by the
25 department and who meets the program eligibility guidelines of
26 the department.
27 (4) CONTRACT REQUIREMENTS.--A health care provider
28 that executes a contract with a governmental contractor to
29 deliver health care services on or after April 17, 1992, as an
30 agent of the governmental contractor is an agent for purposes
31 of s. 768.28(9), while acting within the scope of duties
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1 pursuant to the contract, if the contract complies with the
2 requirements of this section. A health care provider under
3 contract with the state may not be named as a defendant in any
4 action arising out of the medical care or treatment provided
5 on or after April 17, 1992, pursuant to contracts entered into
6 under this section. The contract must provide that:
7 (a) The right of dismissal or termination of any
8 health care provider delivering services pursuant to the
9 contract is retained by the governmental contractor.
10 (b) The governmental contractor has access to the
11 patient records of any health care provider delivering
12 services pursuant to the contract.
13 (c) Adverse incidents and information on treatment
14 outcomes must be reported by any health care provider to the
15 governmental contractor if such incidents and information
16 pertain to a patient treated pursuant to the contract. The
17 health care provider shall annually submit an adverse incident
18 report that includes all information required by s.
19 395.0197(5)(a), unless the adverse incident involves a result
20 described by s. 395.0197(6), in which case it shall be
21 reported within 15 days of the occurrence of such incident. If
22 an incident involves a professional licensed by the Department
23 of Health Business and Professional Regulation or a facility
24 licensed by the Agency for Health Care Administration
25 Department of Health and Rehabilitative Services, the
26 governmental contractor shall submit such incident reports to
27 the appropriate department, which shall review each incident
28 and determine whether it involves conduct by the licensee
29 which that is subject to disciplinary action. All patient
30 medical records and any identifying information contained in
31 adverse incident reports and treatment outcomes which are
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1 obtained by governmental entities pursuant to this paragraph
2 are confidential and exempt from the provisions of s.
3 119.07(1) and s. 24(a), Art. I of the State Constitution.
4 (d) Patient selection and initial referral must be
5 made solely by the governmental contractor, and the provider
6 must accept all referred patients. However, the number of
7 patients that must be accepted may be limited by the contract,
8 and patients may not be transferred to the provider based on a
9 violation of the antidumping provisions of the Omnibus Budget
10 Reconciliation Act of 1989, the Omnibus Budget Reconciliation
11 Act of 1990, or chapter 395.
12 (e) If emergency care is required, the patient need
13 not be referred before receiving treatment, but must be
14 referred within 48 hours after treatment is commenced or
15 within 48 hours after the patient has the mental capacity to
16 consent to treatment, whichever occurs later.
17 (f) Patient care, including any followup or hospital
18 care, is subject to approval by the governmental contractor.
19 (g) The provider is subject to supervision and regular
20 inspection by the governmental contractor.
21
22 A governmental contractor that is also a health care provider
23 is not required to enter into a contract under this section
24 with respect to the health care services delivered by its
25 employees.
26 (5) NOTICE OF AGENCY RELATIONSHIP.--The governmental
27 contractor must provide written notice to each patient, or the
28 patient's legal representative, that the provider is an agent
29 of the governmental contractor and that the exclusive remedy
30 for injury or damage suffered as the result of any act or
31 omission of the provider, or of any employee or agent thereof,
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1 acting within the scope of duties pursuant to the contract is
2 by commencement of an action pursuant to the provisions of s.
3 768.28. With respect to any federally funded community health
4 center, the notice requirements may be met by posting in a
5 place conspicuous to all persons a notice that the federally
6 funded community health center is an agent of the governmental
7 contractor and that the exclusive remedy for injury or damage
8 suffered as the result of any act or omission of the provider
9 or of any employee or agent thereof acting within the scope of
10 duties pursuant to the contract is by commencement of an
11 action pursuant to the provisions of s. 768.28.
12 (10) TEACHING HOSPITALS.--
13 (a) The Legislature finds that teaching hospitals
14 provide access to health care to a significant number of
15 indigent, uninsured residents of this state, that teaching
16 hospitals provide benefits to the people of this state through
17 their medical education programs, that these benefits are at
18 significant risk because health care providers that are
19 teaching hospitals fear the increased risk of medical
20 malpractice liability, and that the continued viability of
21 teaching hospitals must be protected for the purposes of
22 providing indigent care and medical education. It is,
23 therefore, the intent of the Legislature to ensure that health
24 care providers that are teaching hospitals are agents of the
25 state and are protected by sovereign immunity pursuant to this
26 section.
27 (b) As used in this subsection, the term "teaching
28 hospital" shall have the same meaning as in s. 408.07(49).
29 (c) Notwithstanding the requirements of paragraph
30 (3)(a), a contract between a governmental contractor and a
31 health care provider that is a teaching hospital shall allow
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1 the health care provider to deliver health care services to
2 low-income recipients as well as to other patients, as an
3 agent of the governmental contractor. A contract between a
4 governmental contractor and a health care provider that is a
5 teaching hospital does not have to be for volunteer,
6 uncompensated services.
7 (d) The provisions of paragraphs (4)(d) and (f) do not
8 apply when a health care provider is a teaching hospital.
9 (e) The Agency for Health Care Administration, the
10 Department of Health, and the Department of Education shall
11 enter contracts with teaching hospitals for the provision of
12 indigent health care services and medical education services
13 under which a teaching hospital shall be an agent of the
14 state.
15 (f) This subsection applies to incidents occurring on
16 or after the effective date of this subsection.
17 Section 2. Effective June 30, 1997, subsection (12) of
18 section 766.1115, Florida Statutes, as created by and
19 appearing in section 1 of chapter 92-278, Laws of Florida, is
20 repealed.
21 Section 3. For the purpose of incorporating the
22 amendment to s. 766.1115, Florida Statutes, 1996 Supplement,
23 in a reference thereto, subsection (9) of section 768.28,
24 Florida Statutes, 1996 Supplement, is reenacted to read:
25 768.28 Waiver of sovereign immunity in tort actions;
26 recovery limits; limitation on attorney fees; statute of
27 limitations; exclusions; indemnification; risk management
28 programs.--
29 (9)(a) No officer, employee, or agent of the state or
30 of any of its subdivisions shall be held personally liable in
31 tort or named as a party defendant in any action for any
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1 injury or damage suffered as a result of any act, event, or
2 omission of action in the scope of his employment or function,
3 unless such officer, employee, or agent acted in bad faith or
4 with malicious purpose or in a manner exhibiting wanton and
5 willful disregard of human rights, safety, or property.
6 However, such officer, employee, or agent shall be considered
7 an adverse witness in a tort action for any injury or damage
8 suffered as a result of any act, event, or omission of action
9 in the scope of his employment or function. The exclusive
10 remedy for injury or damage suffered as a result of an act,
11 event, or omission of an officer, employee, or agent of the
12 state or any of its subdivisions or constitutional officers
13 shall be by action against the governmental entity, or the
14 head of such entity in his official capacity, or the
15 constitutional officer of which the officer, employee, or
16 agent is an employee, unless such act or omission was
17 committed in bad faith or with malicious purpose or in a
18 manner exhibiting wanton and willful disregard of human
19 rights, safety, or property. The state or its subdivisions
20 shall not be liable in tort for the acts or omissions of an
21 officer, employee, or agent committed while acting outside the
22 course and scope of his employment or committed in bad faith
23 or with malicious purpose or in a manner exhibiting wanton and
24 willful disregard of human rights, safety, or property.
25 (b) As used in this subsection, the term:
26 1. "Employee" includes any volunteer firefighter.
27 2. "Officer, employee, or agent" includes, but is not
28 limited to, any health care provider when providing services
29 pursuant to s. 766.1115, any member of the Florida Health
30 Services Corps, as defined in s. 381.0302, who provides
31 uncompensated care to medically indigent persons referred by
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1 the Department of Health and Rehabilitative Services, and any
2 public defender or his employee or agent, including, among
3 others, an assistant public defender and an investigator.
4 (c) For purposes of the waiver of sovereign immunity
5 only, a member of the Florida National Guard is not acting
6 within the scope of state employment when performing duty
7 under the provisions of Title 10 or Title 32 of the United
8 States Code or other applicable federal law; and neither the
9 state nor any individual may be named in any action under this
10 chapter arising from the performance of such federal duty.
11 Section 4. Except as otherwise expressly provided in
12 this act, this act shall take effect upon becoming a law.
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15 LEGISLATIVE SUMMARY
16
Abrogates the repeal of s. 766.1115, F.S., which provides
17 sovereign immunity for a health care provider who, as an
agent of a governmental contractor, voluntarily provides
18 health care for low-income persons. Redefines the term
"governmental contractor" to include within the scope of
19 the law counties, municipalities, and other units of
local government. Redefines the term "health care
20 provider" to clarify the health care entities that may
act as agents of a governmental contractor. Extends
21 sovereign immunity to certain teaching hospitals.
Requires specified state agencies to contract with
22 teaching hospitals for provision of indigent health care
services and medical education services.
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