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


H

Senator Williams moved the following amendment:



                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    

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11  Senator Williams moved the following amendment:

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13         Senate Amendment (with title amendment) 

14         Delete everything after the enacting clause

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16  and insert:

17         Section 1.  Section 395.3036, Florida Statutes, is

18  created to read:

19         395.3036  Confidentiality of records and meetings of

20  corporations that lease public hospitals or other public

21  health care facilities.--The records of a private corporation

22  that leases a public hospital or other public health care

23  facility are confidential and exempt from the provisions of s.

24  119.07(1) and s. 24(a), Art. I of the State Constitution, and

25  the meetings of the governing board of a private corporation

26  are exempt from s. 286.011 and s. 24(b), Art. I of the State

27  Constitution when the public lessor complies with the public

28  finance accountability provisions of s. 155.40(5) with respect

29  to the transfer of any public funds to the private lessee and

30  when the private lessee meets at least three of the five

31  following criteria:

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    





 1         (1)  The public lessor that owns the public hospital or

 2  other public health care facility was not the incorporator of

 3  the private corporation that leases the public hospital or

 4  other health care facility.

 5         (2)  The public lessor and the private lessee do not

 6  commingle any of their funds in any account maintained by

 7  either of them, other than the payment of the rent and

 8  administrative fees or the transfer of funds pursuant to

 9  subsection (2).

10         (3)  Except as otherwise provided by law, the private

11  lessee is not allowed to participate, except as a member of

12  the public, in the decisionmaking process of the public

13  lessor.

14         (4)  The lease agreement does not expressly require the

15  lessee to comply with the requirements of s. 119.07(1) and s.

16  286.011.

17         (5)  The public lessor is not entitled to receive any

18  revenues from the lessee, except for rental or administrative

19  fees due under the lease, and the lessor is not responsible

20  for the debts or other obligations of the lessee.

21         Section 2.  (1)  The Legislature finds that it is a

22  public necessity that all records of a private corporation and

23  all meetings of the governing board of the private corporation

24  be confidential and exempt from the public records and public

25  meeting laws of this state when the private corporation leases

26  a public hospital or other public health care facility from a

27  public entity in accordance with the terms of this act. The

28  Legislature further finds that private corporations have

29  entered into such leases in reliance on the legal standard

30  governing the application of the public records and open

31  meeting laws to such lease agreements which was set forth in

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    





 1  case law existing at the time of the transaction. That

 2  standard provided that such private lessees were not "acting

 3  on behalf of" the public entity and, therefore, not subject to

 4  the state's public records laws so long as the public entity

 5  did not retain control over the private lessee. No one factor

 6  was used to determine whether the public entity exerted

 7  control; instead a "totality of factors" was analyzed and the

 8  decision made on the balance of those factors. In a recent

 9  decision, however, the Fifth District Court of Appeal has now

10  applied the standard in a manner that may cause more lessees

11  to be subject to public records and meetings requirements. The

12  Legislature finds that the effect of the decision has been:

13         (a)  To create uncertainty with respect to the status

14  of records and meetings under existing lease arrangements; and

15         (b)  To create a disincentive for private corporations

16  to enter into such lease agreements in the future.

17         (2)  Public entities have chosen to privatize the

18  operations of their public hospitals and public health care

19  facilities in order to alleviate three problems that pose a

20  significant threat to the continued viability of Florida's

21  public hospitals:

22         (a)  A financial drain on the facilities from their

23  forced participation in the Florida Retirement System;

24         (b)  The competitive disadvantage placed on these

25  facilities vis a vis their private competitors resulting from

26  their required compliance with the state's public records and

27  public meeting laws; and

28         (c)  State constitutional restrictions on public

29  facility participation in partnerships with private

30  corporations as a result of the limitations contained in the

31  State Constitution. For years, the Legislature has approved

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    





 1  and encouraged these leases, first through special acts that

 2  it has adopted authorizing the lease agreements and, more

 3  recently, through the adoption of section 155.40, Florida

 4  Statutes, which provides for the conversion of public hospital

 5  facilities to private operation by lease, as a means to

 6  provide public entities with the necessary flexibility to use

 7  these public assets in a manner that best serves the interests

 8  of the public. Through such lease arrangement, public entities

 9  have been able to obtain substantial and oftentimes

10  desperately needed private capital investment into these

11  facilities and to relieve the oftentimes burdensome drain on

12  public tax revenues which resulted from public operation.

13         (3)  In the absence of a defined and, therefore,

14  predictable statewide standard for determining when the public

15  records and public meetings laws apply to future lease

16  agreements, public entities may find it difficult, if not

17  impossible, to find a private corporation that is willing to

18  enter into a lease to operate the public hospital or other

19  public health care facility. This, in turn, could force the

20  public entity:

21         (a)  To close the hospital or other health care

22  facility, which would result in a reduction in health care

23  services to the public;

24         (b)  To sell the hospital or other health care

25  facility, which sale, if the facility has deteriorated because

26  of inadequate capital investments over time, will likely be at

27  a loss; or

28         (c)  To continue operating the hospital or other health

29  care facility using public tax dollars to subsidize recurring

30  losses. None of these options is in the best interest of the

31  public.

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    





 1         (3)  The Legislature, therefore, finds that it is a

 2  public necessity for it, through this act, to clarify when the

 3  public records and public meeting laws apply to private

 4  lessees of public hospital or other public health care

 5  facilities. The Legislature further finds that it is a public

 6  necessity for these private lessees to be exempt from the

 7  public records and public meetings laws of the state so long

 8  as, applying the standard codified by this act, the public

 9  entity does not retain control over the private entity.

10         Section 3.  This act does not change existing law

11  relating to discovery of records and information that are

12  otherwise discoverable under the Florida Rules of Civil

13  Procedure or any statutory provision allowing discovery or

14  pre-suit disclosure of such records and information for the

15  purpose of civil actions.

16         Section 4.  This act shall take effect upon becoming

17  law and shall apply to existing leases and future leases of

18  public hospitals and other health care facilities.

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21  ================ T I T L E   A M E N D M E N T ===============

22  And the title is amended as follows:

23         Delete everything before the enacting clause

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25  and insert:

26                      A bill to be entitled

27         An act relating to public records and meetings;

28         creating s. 395.3036, F.S.; providing that when

29         a public lessor complies with the public

30         finance accountability provisions of s.

31         155.40(5), F.S., with respect to the transfer

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                                                  SENATE AMENDMENT

    Bill No. CS/HB 3585

    Amendment No.    





 1         of any public funds to a private lessee, the

 2         records of a private corporation that leases a

 3         public hospital or other public health care

 4         facility are confidential and exempt from

 5         public records requirements, and the meetings

 6         of the governing board of such corporation are

 7         exempt from public meeting requirements if the

 8         corporation meets specified criteria; providing

 9         for future review and repeal; providing a

10         finding of public necessity; providing for the

11         continued applicability of the Florida Rules of

12         Civil Procedure and statutory provisions

13         relating to discoverability in civil actions to

14         records and information made exempt in the act;

15         providing an effective date.

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