House Bill 2091

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    Florida House of Representatives - 1999                HB 2091

        By the Committee on Children & Families and Representative
    Murman





  1                      A bill to be entitled

  2         An act relating to child welfare; amending s.

  3         216.136, F.S.; revising duties of the Child

  4         Welfare System Estimating Conference; amending

  5         s. 409.1671, F.S.; revising requirements

  6         relating to the plan for privatization of

  7         foster care and related services; requiring

  8         community-based agencies providing foster care

  9         and related services under contract with the

10         Department of Children and Family Services to

11         obtain certain liability insurance coverage;

12         requiring such coverage for such agencies'

13         subcontractors; providing limitations on tort

14         actions; providing exclusiveness of liability;

15         providing a hiring preference for certain state

16         employees whose positions are privatized;

17         revising timeframe for an annual report;

18         authorizing certain substitute care providers

19         to provide family day care services; providing

20         reimbursement eligibility for dually licensed

21         providers; continuing privatized foster care

22         and related services in district 5 of the

23         department for a specified period; providing

24         for distribution, transfer, and use of certain

25         excess or additional funds for foster care and

26         related services provided under contract with

27         the department; amending s. 409.175, F.S.;

28         providing for state insurance coverage for

29         persons who own or operate family foster care

30         homes for community-based agencies providing

31         foster care under contract with the department;

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  1         amending s. 409.912, F.S.; authorizing the

  2         Agency for Health Care Administration to

  3         contract with community-based agencies for

  4         services to Medicaid recipients; requiring a

  5         waiver from the federal Health Care Finance

  6         Administration; providing the form of payment

  7         for such services; providing for establishment

  8         of a targeted case management program;

  9         providing funding limitations; providing an

10         effective date.

11

12  Be It Enacted by the Legislature of the State of Florida:

13

14         Section 1.  Paragraph (a) of subsection (8) of section

15  216.136, Florida Statutes, 1998 Supplement, is amended to

16  read:

17         216.136  Consensus estimating conferences; duties and

18  principals.--

19         (8)  CHILD WELFARE SYSTEM ESTIMATING CONFERENCE.--

20         (a)  Duties.--The Child Welfare System Estimating

21  Conference shall develop such official the following

22  information relating to the child welfare system of the state,

23  including forecasts of child welfare caseloads, as the

24  conference determines is needed for the state planning and

25  budgeting system. Such official information may include, but

26  not be limited to:

27         1.  Estimates and projections of the number of initial

28  and additional reports of child abuse, abandonment, or neglect

29  made to the central abuse hotline maintained by the Department

30  of Children and Family Services as established in s.

31  39.201(4).

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  1         2.  Estimates and projections of the number of children

  2  who are alleged to be victims of child abuse, abandonment, or

  3  neglect and are in need of emergency shelter, protective

  4  services, family reunification, foster care, residential group

  5  care, adoptive services, or other appropriate care placement

  6  in a shelter.

  7

  8  In addition, the conference shall develop other official

  9  information relating to the child welfare system of the state

10  which the conference determines is needed for the state

11  planning and budgeting system.  The Department of Children and

12  Family Services shall provide information on the child welfare

13  system requested by the Child Welfare System Estimating

14  Conference, or individual conference principals, in a timely

15  manner.

16         Section 2.  Paragraph (a) of subsection (1),

17  subsections (2), (4), and (5), and paragraph (a) of subsection

18  (3) of section 409.1671, Florida Statutes, 1998 Supplement,

19  are amended, paragraphs (c) through (h) are added to

20  subsection (1), and subsection (7) is added to said section,

21  to read:

22         409.1671  Foster care and related services;

23  privatization.--

24         (1)(a)  It is the intent of the Legislature that the

25  Department of Children and Family Services shall privatize the

26  provision of foster care and related services statewide. As

27  used in this section, the term "privatize" means to contract

28  with competent, community-based agencies.  The department

29  shall submit a plan to accomplish privatization statewide,

30  through a competitive process, phased in over a 3-year period

31  beginning January 1, 2000. This plan is to be submitted by

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  1  July 1, 1999, to the President of the Senate, the Speaker of

  2  the House of Representatives, the Governor, and the minority

  3  leaders of both houses. This plan must be developed with local

  4  community participation, including, but not limited to, input

  5  from the district health and human services board and

  6  community-based providers that are currently under contract

  7  with the department to furnish community-based foster care and

  8  related services, and must include a methodology for

  9  determining and transferring all available funds, including

10  federal funds that the provider is eligible for and agrees to

11  earn and that portion of general revenue funds which is

12  currently associated with the services that are being

13  furnished under contract. The methodology must provide for the

14  transfer of funds appropriated and budgeted for all services

15  and programs that have been incorporated into the project,

16  including all management, capital (including current furniture

17  and equipment), and administrative funds to accomplish the

18  transfer of these programs. This methodology must address

19  expected workload and at least the 3 previous years'

20  experience in expenses and workload. With respect to any

21  district or portion of a district in which privatization

22  cannot be accomplished within the 3-year timeframe, the

23  department must clearly state in its plan the reasons the

24  timeframe cannot be met and the efforts that should be made to

25  remediate the obstacles, which may include alternatives to

26  total privatization, such as public-private partnerships. As

27  used in this section, the term "related services" means family

28  preservation, independent living, emergency shelter,

29  residential group care, foster care, therapeutic foster care,

30  intensive residential treatment, foster care supervision, case

31  management, postplacement supervision, permanent foster care,

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  1  adoption, and family reunification. Unless otherwise provided

  2  for, beginning in fiscal year 1999-2000, either the state

  3  attorney or the Office of the Attorney General shall provide

  4  child welfare legal services, pursuant to chapter 39 and other

  5  relevant provisions, in Sarasota, Pinellas, Pasco, and Manatee

  6  Counties.  Such legal services shall commence and be

  7  effective, as soon as determined reasonably feasible by the

  8  respective state attorney or the Office of the Attorney

  9  General, after the privatization of associated programs and

10  child protective investigations has occurred.  When a private

11  nonprofit agency has received case management

12  responsibilities, transferred from the state under this

13  section, for a child who is sheltered or found to be dependent

14  and who is assigned to the care of the privatization project,

15  the agency may act as the child's guardian for the purpose of

16  registering the child in school if a parent or guardian of the

17  child is unavailable and his or her whereabouts cannot

18  reasonably be ascertained. The private nonprofit agency may

19  also seek emergency medical attention for such a child, but

20  only if a parent or guardian of the child is unavailable, his

21  or her whereabouts cannot reasonably be ascertained, and a

22  court order for such emergency medical services cannot be

23  obtained because of the severity of the emergency or because

24  it is after normal working hours. However, the provider may

25  not consent to sterilization, abortion, or termination of life

26  support. If a child's parents' rights have been terminated,

27  the nonprofit agency shall act as guardian of the child in all

28  circumstances.

29         (c)  Any community-based agency that provides foster

30  care and related services to children and families under

31  contract with the department pursuant to this section must, as

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  1  a part of its contract, obtain general liability insurance

  2  coverage. Any tort action brought against an eligible lead

  3  community-based provider shall be limited to net economic

  4  damages, including, but not limited to, past and future

  5  medical expenses, wage loss, and loss of earning capacity,

  6  offset by any collateral source payments paid. Any offset of

  7  collateral source payments made as of the date of the

  8  settlement or judgment shall be in accordance with s. 768.76.

  9  The state shall hold harmless the private providers for

10  noneconomic damages over $200,000 pursuant to s. 768.28.

11         (d)  The liability of an eligible lead community-based

12  provider prescribed in this section shall be exclusive and in

13  place of all other liability of such provider. The same

14  immunities from liability enjoyed by such providers shall

15  extend as well to each employee of the provider when such

16  employee is acting in furtherance of the provider's business.

17  Such immunities shall not be applicable to a provider or an

18  employee who acts in a culpably negligent manner or with

19  unprovoked physical aggression when such acts result in injury

20  or death or such acts proximately cause such injury or death,

21  nor shall such immunities be applicable to employees of the

22  same provider when each is operating in the furtherance of the

23  provider's business, but they are assigned primarily to

24  unrelated works within private or public employment. The same

25  immunity provisions enjoyed by a provider shall also apply to

26  any sole proprietor, partner, corporate officer or director,

27  supervisor, or other person who in the course and scope of his

28  or her duties acts in a managerial or policymaking capacity

29  and the conduct which caused the alleged injury arose within

30  the course and scope of said managerial or policymaking duties

31  and was not a violation of a law, whether or not a violation

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  1  was charged, for which the maximum penalty which may be

  2  imposed does not exceed 60 days' imprisonment as set forth in

  3  s. 775.082.

  4         (e)  Any subcontractor of an eligible lead

  5  community-based agency that provides foster care and related

  6  services to children and families under contract with the

  7  department pursuant to this section must, as a part of its

  8  subcontract, be covered under a general liability insurance

  9  policy. Any tort action brought against a subcontractor of an

10  eligible lead community-based provider which is a direct

11  provider of foster care and related services shall be limited

12  to net economic damages, including, but not limited to, past

13  and future medical expenses, wage loss, and loss of earning

14  capacity, offset by any collateral source payments paid. Any

15  offset of collateral source payments made as of the date of

16  the settlement or judgment shall be in accordance with s.

17  768.76. The state shall hold harmless the private providers

18  for noneconomic damages over $200,000 pursuant to s. 768.28.

19         (f)  The liability of a subcontractor of an eligible

20  lead community-based provider which is a direct provider of

21  foster care and related services as prescribed in this section

22  shall be exclusive and in place of all other liability of such

23  provider. The same immunities from liability enjoyed by such

24  subcontractor provider shall extend as well to each employee

25  of the subcontractor when such employee is acting in

26  furtherance of the subcontractor's business. Such immunities

27  shall not be applicable to a subcontractor or an employee who

28  acts in a culpably negligent manner or with unprovoked

29  physical aggression when such acts result in injury or death

30  or such acts proximately cause such injury or death, nor shall

31  such immunities be applicable to employees of the same

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  1  subcontractor when each is operating in the furtherance of the

  2  subcontractor's business, but they are assigned primarily to

  3  unrelated works within private or public employment. The same

  4  immunity provisions enjoyed by a subcontractor shall also

  5  apply to any sole proprietor, partner, corporate officer or

  6  director, supervisor, or other person who in the course and

  7  scope of his or her duties acts in a managerial or

  8  policymaking capacity and the conduct which caused the alleged

  9  injury arose within the course and scope of said managerial or

10  policymaking duties and was not a violation of a law, whether

11  or not a violation was charged, for which the maximum penalty

12  which may be imposed does not exceed 60 days' imprisonment as

13  set forth in s. 775.082.

14         (g)  The Legislature is cognizant of the increasing

15  costs of goods and services each year and recognizes that

16  fixing a set amount of compensation actually has the effect of

17  a reduction in compensation each year. Accordingly, the

18  conditional limitation on noneconomic damages in this section

19  shall be increased at the rate of 5 percent each year,

20  prorated from the effective date of this paragraph to the date

21  at which noneconomic damages subject to such limitation are

22  awarded by final judgment or settlement.

23         (h)  If any paragraph, sentence, clause, phrase, or

24  word of this subsection is for any reason held or declared to

25  be unconstitutional, invalid, inoperative, ineffective,

26  inapplicable, or void, such invalidity or unconstitutionality

27  shall not affect the portions of this subsection not so held

28  to be unconstitutional, void, invalid, or ineffective, or

29  affect the application of this subsection to other

30  circumstances not so held to be invalid, it being the express

31  legislative intent that any such unconstitutional, illegal,

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  1  invalid, ineffective, inapplicable, or void portion or

  2  portions of this subsection did not induce its passage, and

  3  that without the inclusion of any such unconstitutional,

  4  illegal, invalid, ineffective, or void portions of this

  5  subsection, the Legislature would have enacted the valid and

  6  constitutional portions thereof.

  7         (2)(a)  The department may contract for the delivery,

  8  administration, or management of protective services, the

  9  services specified in subsection (1) relating to foster care,

10  and other related services or programs, as appropriate. The

11  department shall retain responsibility for the quality of

12  contracted services and programs and shall ensure that

13  services are delivered in accordance with applicable federal

14  and state statutes, rules, and regulations.

15         (b)  Persons employed by the department in the

16  provision of foster care and related services whose positions

17  are privatized pursuant to this section shall be given hiring

18  preference by the provider, if provider qualifications are

19  met.

20         (3)(a)  The department shall establish a quality

21  assurance program for privatized services. The quality

22  assurance program may be performed by a national accrediting

23  organization such as the Council on Accreditation of Services

24  for Families and Children, Inc. (COA) or the Council on

25  Accreditation of Rehabilitation Facilities (CARF). The

26  department shall develop a request for proposal for such

27  oversight. This program must be developed and administered at

28  a statewide level. The Legislature intends that the department

29  be permitted to have limited flexibility to use funds for

30  improving quality assurance. To this end, effective January 1,

31  2000, the department may transfer up to 0.125 percent of the

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  1  total funds from categories used to pay for these

  2  contractually provided services, but the total amount of such

  3  transferred funds may not exceed $300,000 in any fiscal year.

  4  When necessary, the department may establish, in accordance

  5  with s. 216.177, additional positions that will be exclusively

  6  devoted to these functions. Any positions required under this

  7  paragraph may be established, notwithstanding ss.

  8  216.262(1)(a) and 216.351. The department, in consultation

  9  with the community-based agencies that are undertaking the

10  privatized projects, shall establish minimum thresholds for

11  each component of service, consistent with standards

12  established by the Legislature. Each program operated under

13  contract with a community-based agency must be evaluated

14  annually by the department. The department shall submit an

15  annual report regarding quality performance, outcome measure

16  attainment, and cost efficiency to the President of the

17  Senate, the Speaker of the House of Representatives, the

18  minority leader of each house of the Legislature, and the

19  Governor no later than November 30 January 31 of each year for

20  each project in operation during the preceding fiscal year.

21         (4)(a)  The community-based agency must comply with

22  statutory requirements and agency rules in the provision of

23  contractual services. Each foster home, therapeutic foster

24  home, emergency shelter, or other placement facility operated

25  by the community-based agency or agencies must be licensed by

26  the Department of Children and Family Services under chapter

27  402 or this chapter. Each community-based agency must be

28  licensed as a child-caring or child-placing agency by the

29  department under this chapter. The department, in order to

30  eliminate or reduce the number of duplicate inspections by

31

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  1  various program offices, shall coordinate inspections required

  2  pursuant to licensure of agencies under this section.

  3         (b)  Substitute care providers licensed under s.

  4  409.175 and contracted with a lead agency authorized under

  5  this section shall also be authorized to provide registered or

  6  licensed family day care under s. 402.313, provided that:

  7         1.  The home has met the requirements of s. 402.313.

  8         2.  The home has met the requirements of s. 402.281 and

  9  has received Gold Seal Quality Care designation.

10         (c)  A dually licensed home under this subsection shall

11  be eligible to receive both the foster care board rate and the

12  subsidized child care rate for the same child only if care is

13  provided 24 hours per day. The subsidized child care rate

14  shall be no more than the approved full-time rate.

15         (5)  Beginning January 1, 1999, and continuing at least

16  through June 30, 2000 December 31, 1999, the Department of

17  Children and Family Services shall privatize all foster care

18  and related services in district 5 and shall expand the

19  privatization for the care model in district 12 while

20  continuing to contract with the current model programs in

21  districts 1, 4, and 13, and in subdistrict 8A, and shall

22  expand the subdistrict 8A pilot program to incorporate Manatee

23  County. Planning for the district 5 privatization shall be

24  done by providers that are currently under contract with the

25  department for foster care and related services and shall be

26  done in consultation with the department.  A lead provider of

27  the district 5 program shall be competitively selected, must

28  demonstrate the ability to provide necessary comprehensive

29  services through a local network of providers, and must meet

30  criteria established in this section. Contracts with

31  organizations responsible for the model programs must include

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  1  the management and administration of all privatized services

  2  specified in subsection (1). However, the department may use

  3  funds for contract management only after obtaining written

  4  approval from the Executive Office of the Governor. The

  5  request for such approval must include, but is not limited to,

  6  a statement of the proposed amount of such funds and a

  7  description of the manner in which such funds will be used. If

  8  the community-based organization selected for a model program

  9  under this subsection is not a Medicaid provider, the

10  organization shall be issued a Medicaid provider number

11  pursuant to s. 409.907 for the provision of services currently

12  authorized under the state Medicaid plan to those children

13  encompassed in this model and in a manner not to exceed the

14  current level of state expenditure.

15         (7)  Notwithstanding the provisions of s. 215.425, all

16  documented federal funds earned for the current fiscal year by

17  the department and community-based agencies that exceed the

18  amount appropriated by the Legislature shall be distributed

19  based on a schedule and methodology developed by the

20  department and approved by the Executive Office of the

21  Governor.  Additional state funds appropriated by the

22  Legislature for community-based agencies or made available

23  pursuant to the budgetary amendment process described in s.

24  216.177 shall be transferred to the community-based agencies.

25  The community-based agencies shall use any such funds made

26  available under this subsection for the sole purpose of

27  providing child welfare services. The department shall amend a

28  community-based agency's contract to permit expenditure of

29  these funds.

30

31

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  1         Section 3.  Paragraph (a) of subsection (14) of section

  2  409.175, Florida Statutes, 1998 Supplement, is amended to

  3  read:

  4         409.175  Licensure of family foster homes, residential

  5  child-caring agencies, and child-placing agencies.--

  6         (14)(a)  The Division of Risk Management of the

  7  Department of Insurance shall provide coverage through the

  8  Department of Children and Family Services to any person who

  9  owns or operates a family foster home solely for the

10  Department of Children and Family Services, or who owns or

11  operates a family foster home solely for a community-based

12  agency providing foster care under s. 409.1671, and who is

13  licensed to provide family foster home care in her or his

14  place of residence.  The coverage shall be provided from the

15  general liability account of the Florida Casualty Insurance

16  Risk Management Trust Fund, and the coverage shall be primary.

17  The coverage is limited to general liability claims arising

18  from the provision of family foster home care pursuant to an

19  agreement with the department and pursuant to guidelines

20  established through policy, rule, or statute. Coverage shall

21  be limited as provided in ss. 284.38 and 284.385, and the

22  exclusions set forth therein, together with other exclusions

23  as may be set forth in the certificate of coverage issued by

24  the trust fund, shall apply. A person covered under the

25  general liability account pursuant to this subsection shall

26  immediately notify the Division of Risk Management of the

27  Department of Insurance of any potential or actual claim.

28         Section 4.  Paragraph (e) is added to subsection (3) of

29  section 409.912, Florida Statutes, 1998 Supplement, to read:

30         409.912  Cost-effective purchasing of health care.--The

31  agency shall purchase goods and services for Medicaid

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  1  recipients in the most cost-effective manner consistent with

  2  the delivery of quality medical care.  The agency shall

  3  maximize the use of prepaid per capita and prepaid aggregate

  4  fixed-sum basis services when appropriate and other

  5  alternative service delivery and reimbursement methodologies,

  6  including competitive bidding pursuant to s. 287.057, designed

  7  to facilitate the cost-effective purchase of a case-managed

  8  continuum of care. The agency shall also require providers to

  9  minimize the exposure of recipients to the need for acute

10  inpatient, custodial, and other institutional care and the

11  inappropriate or unnecessary use of high-cost services.

12         (3)  The agency may contract with:

13         (e)  A community-based agency that meets Medicaid

14  provider enrollment criteria and provides behavioral health

15  care to Medicaid recipients through a community-based child

16  welfare project approved by and under contract with the

17  Department of Children and Family Services and authorized

18  under s. 409.1671. The agency must obtain a waiver from the

19  federal Health Care Finance Administration pursuant to

20  paragraph (d) to implement these services. Payments for

21  services may be made on a prepaid capitation, fee-for-service,

22  or fixed-sum basis. The community-based entity may provide

23  such prepaid services either directly or through formal

24  arrangements with other qualified providers. Further, the

25  Agency for Health Care Administration is authorized to

26  establish a targeted case management program within those

27  counties included in the community-based child welfare project

28  approved by the Department of Children and Family Services and

29  authorized under s. 409.1671. The general revenue required

30  match for these services is limited to those funds available

31

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  1  for match and contained within the contracted funds for

  2  covered services with the lead agency.

  3         Section 5.  This act shall take effect upon becoming a

  4  law.

  5

  6            *****************************************

  7                          HOUSE SUMMARY

  8
      Revises duties of the Child Welfare System Estimating
  9    Conference. Revises requirements relating to the plan for
      privatization of foster care and related services.
10    Requires community-based agencies contracting with the
      Department of Children and Family Services to provide
11    such services to obtain certain liability insurance
      coverage and requires coverage of subcontractors.
12    Provides limitations on tort actions. Provides
      exclusiveness of liability. Provides a hiring preference
13    for certain state employees whose positions are
      privatized. Authorizes substitute care providers which
14    meet described requirements to provide family day care
      services, and provides reimbursement eligibility for such
15    dually licensed providers. Continues a program of
      privatized foster care and related services in district 5
16    of the department until June 30, 2000. Provides for
      distribution, transfer, and use of certain excess or
17    additional funds for foster care and related services
      provided under contract with the department. Authorizes
18    the Agency for Health Care Administration to contract
      with community-based agencies for services for Medicaid
19    recipients, subject to a waiver from the federal Health
      Care Finance Administration. Provides for a targeted case
20    management program within such contract area and provides
      certain funding limitations for such contracts. See bill
21    for details.

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