House Bill 2093
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1999 HB 2093
By the Committee on Children & Families and Representative
Murman
1 A bill to be entitled
2 An act relating to child welfare; amending s.
3 409.1671, F.S., relating to privatization of
4 foster care and related services; requiring
5 community-based agencies providing foster care
6 and related services under contract with the
7 Department of Children and Family Services to
8 obtain certain liability insurance coverage;
9 requiring such coverage for such agencies'
10 subcontractors; providing limitations on
11 liability in tort actions; providing
12 exclusiveness of liability; providing for
13 distribution, transfer, and use of certain
14 excess or additional funds for foster care and
15 related services provided under contract with
16 the department; providing an effective date.
17
18 Be It Enacted by the Legislature of the State of Florida:
19
20 Section 1. Paragraphs (c) through (h) are added to
21 subsection (1) of section 409.1671, Florida Statutes, 1998
22 Supplement, and subsection (7) is added to said section, to
23 read:
24 409.1671 Foster care and related services;
25 privatization.--
26 (1)
27 (c) Any community-based agency that provides foster
28 care and related services to children and families under
29 contract with the department pursuant to this section must, as
30 a part of its contract, obtain general liability insurance
31 coverage. Any tort action brought against an eligible lead
1
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1999 HB 2093
602-138A-99
1 community-based provider shall be limited to net economic
2 damages, including, but not limited to, past and future
3 medical expenses, wage loss, and loss of earning capacity,
4 offset by any collateral source payments paid. Any offset of
5 collateral source payments made as of the date of the
6 settlement or judgment shall be in accordance with s. 768.76.
7 The state shall hold harmless the private providers for
8 noneconomic damages over $200,000 pursuant to s. 768.28.
9 (d) The liability of an eligible lead community-based
10 provider prescribed in this section shall be exclusive and in
11 place of all other liability of such provider. The same
12 immunities from liability enjoyed by such provider shall
13 extend as well to each employee of the provider when such
14 employee is acting in furtherance of the provider's business.
15 Such immunities shall not be applicable to a provider or an
16 employee who acts in a culpably negligent manner or with
17 unprovoked physical aggression when such acts result in injury
18 or death or such acts proximately cause such injury or death,
19 nor shall such immunities be applicable to employees of the
20 same provider when each is operating in the furtherance of the
21 provider's business, but they are assigned primarily to
22 unrelated works within private or public employment. The same
23 immunity provisions enjoyed by a provider shall also apply to
24 any sole proprietor, partner, corporate officer or director,
25 supervisor, or other person who in the course and scope of his
26 or her duties acts in a managerial or policymaking capacity
27 and the conduct which caused the alleged injury arose within
28 the course and scope of said managerial or policymaking duties
29 and was not a violation of a law, whether or not a violation
30 was charged, for which the maximum penalty which may be
31
2
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1999 HB 2093
602-138A-99
1 imposed does not exceed 60 days' imprisonment as set forth in
2 s. 775.082.
3 (e) Any subcontractor of an eligible lead
4 community-based agency that provides foster care and related
5 services to children and families under contract with the
6 department pursuant to this section must, as a part of its
7 subcontract, be covered under a general liability insurance
8 policy. Any tort action brought against a subcontractor of an
9 eligible lead community-based provider which is a direct
10 provider of foster care and related services shall be limited
11 to net economic damages, including, but not limited to, past
12 and future medical expenses, wage loss, and loss of earning
13 capacity, offset by any collateral source payments paid. Any
14 offset of collateral source payments made as of the date of
15 the settlement or judgment shall be in accordance with s.
16 768.76. The state shall hold harmless the private providers
17 for noneconomic damages over $200,000 pursuant to s. 768.28.
18 (f) The liability of a subcontractor of an eligible
19 lead community-based provider which is a direct provider of
20 foster care and related services as prescribed in this section
21 shall be exclusive and in place of all other liability of such
22 provider. The same immunities from liability enjoyed by such
23 subcontractor provider shall extend as well to each employee
24 of the subcontractor when such employee is acting in
25 furtherance of the subcontractor's business. Such immunities
26 shall not be applicable to a subcontractor or an employee who
27 acts in a culpably negligent manner or with unprovoked
28 physical aggression when such acts result in injury or death
29 or such acts proximately cause such injury or death, nor shall
30 such immunities be applicable to employees of the same
31 subcontractor when each is operating in the furtherance of the
3
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1999 HB 2093
602-138A-99
1 subcontractor's business, but they are assigned primarily to
2 unrelated works within private or public employment. The same
3 immunity provisions enjoyed by a subcontractor shall also
4 apply to any sole proprietor, partner, corporate officer or
5 director, supervisor, or other person who in the course and
6 scope of his or her duties acts in a managerial or
7 policymaking capacity and the conduct which caused the alleged
8 injury arose within the course and scope of said managerial or
9 policymaking duties and was not a violation of a law, whether
10 or not a violation was charged, for which the maximum penalty
11 which may be imposed does not exceed 60 days' imprisonment as
12 set forth in s. 775.082.
13 (g) The Legislature is cognizant of the increasing
14 costs of goods and services each year and recognizes that
15 fixing a set amount of compensation actually has the effect of
16 a reduction in compensation each year. Accordingly, the
17 conditional limitation on noneconomic damages in this section
18 shall be increased at the rate of 5 percent each year,
19 prorated from the effective date of this paragraph to the date
20 at which noneconomic damages subject to such limitation are
21 awarded by final judgment or settlement.
22 (h) If any paragraph, sentence, clause, phrase, or
23 word of this subsection is for any reason held or declared to
24 be unconstitutional, invalid, inoperative, ineffective,
25 inapplicable, or void, such invalidity or unconstitutionality
26 shall not affect the portions of this subsection not so held
27 to be unconstitutional, void, invalid, or ineffective, or
28 affect the application of this subsection to other
29 circumstances not so held to be invalid, it being the express
30 legislative intent that any such unconstitutional, illegal,
31 invalid, ineffective, inapplicable, or void portion or
4
CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 1999 HB 2093
602-138A-99
1 portions of this subsection did not induce its passage, and
2 that without the inclusion of any such unconstitutional,
3 illegal, invalid, ineffective, or void portions of this
4 subsection, the Legislature would have enacted the valid and
5 constitutional portions thereof.
6 (7) Notwithstanding the provisions of s. 215.425, all
7 documented federal funds earned for the current fiscal year by
8 the department and community-based agencies that exceed the
9 amount appropriated by the Legislature shall be distributed
10 based on a schedule and methodology developed by the
11 department and approved by the Executive Office of the
12 Governor. Additional state funds appropriated by the
13 Legislature for community-based agencies or made available
14 pursuant to the budgetary amendment process described in s.
15 216.177 shall be transferred to the community-based agencies.
16 The community-based agencies shall use any such funds made
17 available under this subsection for the sole purpose of
18 providing child welfare services. The department shall amend a
19 community-based agency's contract to permit expenditure of
20 these funds.
21 Section 2. This act shall take effect upon becoming a
22 law.
23
24 *****************************************
25 HOUSE SUMMARY
26
Requires community-based agencies contracting to provide
27 foster care and related services through contract with
the Department of Children and Family Services to obtain
28 certain liability insurance coverage. Requires such
coverage for such agencies' subcontractors. Provides
29 limitations on tort actions. Provides exclusiveness of
liability. Provides for distribution, transfer, and use
30 of certain excess or additional funds for foster care and
related services provided under contract with the
31 department.
5