Senate Bill sb1476c3
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By the Committees on Health and Human Services Appropriations;
Governmental Oversight and Productivity; Children and
Families; and Senators Campbell and Margolis
603-1895-05
1 A bill to be entitled
2 An act relating to the Department of Children
3 and Family Services; providing legislative
4 intent with respect to establishing a structure
5 by which the department shall monitor and
6 manage contracts with external service
7 providers; providing definitions; requiring the
8 department to competitively procure certain
9 commodities and contractual services; requiring
10 the department to allow all public
11 postsecondary institutions to bid on contracts
12 intended for any public postsecondary
13 institution; authorizing the department to
14 competitively procure and contract for systems
15 of treatment or service that involve multiple
16 providers; providing requirements if other
17 governmental entities contribute matching
18 funds; requiring that an entity providing
19 matching funds must comply with certain
20 procurement procedures; authorizing the
21 department to independently procure and
22 contract for treatment services; requiring that
23 the department develop a validated business
24 case before outsourcing any service or
25 function; providing requirements for the
26 business case; requiring that the validated
27 business case be submitted to the Legislature
28 for approval; requiring that a contractual
29 service that has previously been outsourced be
30 subject to the requirements for a validated
31 business case; requiring that a procurement of
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1 contractual services equal to or in excess of
2 the threshold amount for CATEGORY FIVE comply
3 with specified requirements, including a scope
4 of work and performance standards; authorizing
5 the department to adopt incremental penalties
6 by rule; authorizing the department to include
7 cost-neutral, performance-based incentives in a
8 contract; requiring multiyear contracts unless
9 justification is provided; requiring that a
10 contract in excess of $1 million be negotiated
11 by a contract negotiator who is certified
12 according to standards established by the
13 Department of Management Services; limiting
14 circumstances under which the department may
15 amend a contract; requiring that a proposed
16 contract amendment be submitted to the
17 Executive Office of the Governor for approval;
18 requiring approval of a contract amendment by
19 the Administration Commission under certain
20 circumstances; requiring the department to
21 verify that contractual terms have been
22 satisfied before renewing a contract; requiring
23 certain documentation; requiring the department
24 to develop, in consultation with the Department
25 of Management Services, contract templates and
26 guidelines; requiring that the department
27 establish a contract-management process;
28 specifying the requirements for and components
29 of the contract-management process; providing
30 requirements for resolving performance
31 deficiencies and terminating a contract;
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1 requiring a corrective-action plan under
2 certain circumstances; requiring the department
3 to develop standards of conduct and
4 disciplinary actions; requiring that the
5 department establish contract-monitoring units
6 and a contract-monitoring process; requiring
7 written reports; requiring on-site visits for
8 contracts involving the provision of direct
9 client services; requiring the department to
10 make certain documents available to the
11 Legislature; requiring the department to create
12 an electronic database to store the documents;
13 prohibiting contractors from performing certain
14 functions; amending s. 402.73, F.S.; requiring
15 the Agency for Persons with Disabilities to
16 implement systems to ensure quality and fiscal
17 integrity of programs in the developmental
18 services Medicaid waiver system; providing an
19 exemption for health services from competitive
20 bidding requirements; amending s. 409.1671,
21 F.S.; conforming provisions to changes made by
22 the act; requiring that the Office of Program
23 Policy Analysis and Government Accountability
24 conduct two reviews of the contract-management
25 and accountability structures of the department
26 and report to the Legislature and the Auditor
27 General; repealing s. 402.72, F.S., relating to
28 contract-management requirements for the
29 Department of Children and Family Services;
30 providing an appropriation; providing an
31 effective date.
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1 Be It Enacted by the Legislature of the State of Florida:
2
3 Section 1. Department of Children and Family Services;
4 procurement of contractual services; outsourcing or
5 privatization; contract management.--
6 (1) LEGISLATIVE INTENT.--The Legislature intends that
7 the Department of Children and Family Services obtain services
8 in the manner that is most efficient and cost-effective for
9 the state, that provides the greatest long-term benefits to
10 the clients receiving services, and that minimizes the
11 disruption of client services. In order to meet these
12 legislative goals, the department shall comply with
13 legislative policy guidelines that require compliance with
14 uniform procedures for procuring contractual services,
15 prescribe how the department must outsource its programmatic
16 and administrative services to external service providers
17 rather than having them provided by the department or another
18 state agency, and establish a contract-management and
19 contract-monitoring process.
20 (2) DEFINITIONS.--As used in this section, the term:
21 (a) "Contract manager" means the department employee
22 who is responsible for enforcing the compliance with
23 administrative and programmatic terms and conditions of a
24 contract. The contract manager is the primary point of contact
25 through which all contracting information flows between the
26 department and the contractor. The contract manager is
27 responsible for day-to-day contract oversight, including
28 approval of contract deliverables and invoices. All actions
29 related to the contract shall be initiated by or coordinated
30 with the contract manager. The contract manager maintains the
31 official contract files.
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1 (b) "Contract monitor" means the department employee
2 who is responsible for observing, recording, and reporting to
3 the contract manager and other designated entities the
4 information necessary to assist the contract manager and
5 program management in determining whether the contractor is in
6 compliance with the administrative and programmatic terms and
7 conditions of the contract.
8 (c) "Department" means the Department of Children and
9 Family Services.
10 (d) "Outsourcing" means the process of contracting
11 with an external service provider to provide a service, in
12 whole or in part, while the department retains the
13 responsibility and accountability for the service.
14 (e) "Performance measure" means the quantitative
15 indicators used to assess if the service the external provider
16 is performing is achieving the desired results. Measures of
17 performance include outputs, direct counts of program
18 activities, and outcomes or results of program activities in
19 the lives of the clients served.
20 (f) "Performance standard" means the quantifiable,
21 specified, and desired level to be achieved for a particular
22 performance measure.
23 (g) "Privatize" means any process aimed at
24 transferring the responsibility for a service, in whole or in
25 part, from the department to the private sector such that the
26 private sector is solely and fully responsible for the
27 performance of the specific service.
28 (h) "Service" means all or any portion of a program or
29 program component as defined in section 216.011.
30 (3) PROCUREMENT OF COMMODITIES AND CONTRACTUAL
31 SERVICES.--
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1 (a) For the purchase of commodities and contractual
2 services in excess of the threshold amount established in
3 section 287.017, Florida Statutes, for CATEGORY TWO, the
4 department shall comply with the requirements set forth in
5 section 287.057, Florida Statutes.
6 (b) Notwithstanding section 287.057(5)(f)13., Florida
7 Statutes, whenever the department intends to contract with a
8 public postsecondary institution to provide a service, the
9 department must allow all public postsecondary institutions in
10 this state that are accredited by the Southern Association of
11 Colleges and Schools to bid on the contract. Thereafter,
12 notwithstanding any other provision to the contrary, if a
13 public postsecondary institution intends to subcontract for
14 any service awarded in the contract, the subcontracted service
15 must be procured by competitive procedures.
16 (c) When it is in the best interest of a defined
17 segment of its consumer population, the department may
18 competitively procure and contract for systems of treatment or
19 service that involve multiple providers, rather than procuring
20 and contracting for treatment or services separately from each
21 participating provider. The department must ensure that all
22 providers that participate in the treatment or service system
23 meet all applicable statutory, regulatory, service-quality,
24 and cost-control requirements. If other governmental entities
25 or units of special purpose government contribute matching
26 funds to the support of a given system of treatment or
27 service, the department shall formally request information
28 from those funding entities in the procurement process and may
29 take the information received into account in the selection
30 process. If a local government contributes matching funds to
31 support the system of treatment or contracted service and if
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1 the match constitutes at least 25 percent of the value of the
2 contract, the department shall afford the governmental match
3 contributor an opportunity to name an employee as one of the
4 persons required by section 287.057(17), Florida Statutes, to
5 evaluate or negotiate certain contracts, unless the department
6 sets forth in writing the reason why the inclusion would be
7 contrary to the best interest of the state. Any employee so
8 named by the governmental match contributor shall qualify as
9 one of the persons required by section 287.057(17), Florida
10 Statutes. A governmental entity or unit of special purpose
11 government may not name an employee as one of the persons
12 required by section 287.057(17), Florida Statutes, if it, or
13 any of its political subdivisions, executive agencies, or
14 special districts, intends to compete for the contract to be
15 awarded. The governmental funding entity or contributor of
16 matching funds must comply with all procurement procedures set
17 forth in section 287.057, Florida Statutes, when appropriate
18 and required.
19 (d) The department may procure and contract for or
20 provide assessment and case-management services independently
21 from treatment services.
22 (4) SOURCING STANDARDS AND REQUIREMENTS.--If the
23 department proposes to outsource a service, the department
24 must comply with the requirements of this section prior to the
25 procurement process provided for in section 287.057, Florida
26 Statutes.
27 (a) The department shall develop a business case
28 describing and analyzing the service proposed for outsourcing.
29 A business case is part of the solicitation process and is not
30 a rule subject to challenge pursuant to section 120.54,
31
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1 Florida Statutes. The business case must include, but need not
2 be limited to:
3 1. A detailed description of the services to be
4 outsourced, a description and analysis of the department's
5 current performance of the service, and a rationale
6 documenting how outsourcing the service would be in the best
7 interest of the state, the department, and its clients.
8 2. A cost-benefit analysis documenting the estimated
9 specific direct and indirect costs, savings, performance
10 improvements, risks, and qualitative and quantitative benefits
11 involved in or resulting from outsourcing the service. The
12 cost-benefit analysis must include a detailed plan and
13 timeline identifying all actions that must be implemented to
14 realize expected benefits. Under section 92.525, Florida
15 Statutes, the Secretary of Children and Family Services shall
16 verify that all costs, savings, and benefits are valid and
17 achievable.
18 3. A description of the specific performance measures
19 and standards that must be achieved through the outsourcing
20 proposal.
21 4. A statement of the potential effect on applicable
22 federal, state, and local revenues and expenditures. The
23 statement must specifically describe the effect on general
24 revenue, trust funds, general revenue service charges, and
25 interest on trust funds, together with the potential direct or
26 indirect effect on federal funding and cost allocations.
27 5. A plan to ensure compliance with public-record
28 laws, which must include components that:
29 a. Provide public access to public records at a cost
30 that does not exceed that provided in chapter 119, Florida
31 Statutes.
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1 b. Ensure the confidentiality of records that are
2 exempt from disclosure or confidential under law.
3 c. Meet all legal requirements for record retention.
4 d. Allow for transfer to the state, at no cost, all
5 public records in possession of the external service provider
6 upon termination of the contract.
7 6. A department transition and implementation plan for
8 addressing changes in the number of agency personnel, affected
9 business processes, and employee-transition issues. Such a
10 plan must also specify the mechanism for continuing the
11 operation of the service if the contractor fails to perform
12 and comply with the performance measures and standards and
13 provisions of the contract. Within this plan, the department
14 shall identify all resources, including full-time equivalent
15 positions, which are subject to outsourcing. All full-time
16 equivalent positions identified in the plan shall be placed in
17 reserve by the Executive Office of the Governor until the end
18 of the second year of the contract. Notwithstanding the
19 provisions of section 216.262, Florida Statutes, the Executive
20 Office of the Governor shall request authority from the
21 Legislative Budget Commission to reestablish full-time
22 positions above the number fixed by the Legislature when a
23 contract is terminated and the outsourced service must be
24 returned to the department.
25 7. A listing of assets proposed for transfer to or use
26 by the external service provider, a description of the
27 proposed requirements for maintenance of those assets by the
28 external service provider or the department in accordance with
29 chapter 273, Florida Statutes, a plan for their disposition
30 upon termination of the contract, and a description of how the
31
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1 planned asset transfer or use by the contractor is in the best
2 interest of the department and the state.
3 (b)1. If the department proposes to outsource the
4 service in the next fiscal year, the department shall submit
5 the business case with the department's final legislative
6 budget request, in the manner and form prescribed in the
7 legislative budget request instructions under section 216.023,
8 Florida Statutes. Upon approval in the General Appropriations
9 Act, the department may initiate and complete the procurement
10 process under section 287.057, Florida Statutes, and shall
11 have the authority to enter into contracts with the external
12 service provider.
13 2. If a proposed outsourcing initiative would require
14 integration with, or would in any way affect other state
15 information technology systems, the department shall submit
16 the feasibility study documentation required by the
17 legislative budget request instructions under section 216.023,
18 Florida Statutes.
19 (c) If the department proposes to outsource a service
20 during a fiscal year and the outsourcing provision was not
21 included in the approved operating budget of the department,
22 the department must provide to the Governor, the President of
23 the Senate, the Speaker of the House of Representatives, the
24 chairs of the legislative appropriations committees, and the
25 chairs of the relevant substantive committees the business
26 case that complies with the requirements of paragraph (a) at
27 least 45 days before the release of any solicitation
28 documents, as provided for in section 287.057, Florida
29 Statutes. Any budgetary changes that are inconsistent with the
30 department's approved budget may not be made to existing
31 programs unless the changes are recommended to the Legislative
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1 Budget Commission by the Governor and the Legislative Budget
2 Commission expressly approves the program changes.
3 (d) The department may not privatize a service without
4 specific authority provided in general law, the General
5 Appropriations Act, legislation implementing the General
6 Appropriations Act, or a special appropriations act.
7 (5) CONTRACTING AND PERFORMANCE MEASURES.--In addition
8 to the requirements of section 287.058, Florida Statutes,
9 every procurement of contractual services by the department
10 which meets or is in excess of the threshold amount provided
11 in section 287.017, Florida Statutes, for CATEGORY FIVE, must
12 comply with the requirements of this subsection.
13 (a) The department shall execute a contract containing
14 all provisions and conditions, which must include, but need
15 not be limited to:
16 1. A detailed scope of work that clearly specifies
17 each service and deliverable to be provided, including a
18 description of each deliverable or activity that is
19 quantifiable, measurable, and verifiable by the department and
20 the contractor.
21 2. Associated costs and savings, specific payment
22 terms and payment schedules, including incentive and penalty
23 provisions, criteria governing payment, and a clear and
24 specific schedule to complete all required activities needed
25 to transfer the service from the state to the contractor.
26 3. Clear and specific identification of all required
27 performance measures and standards, which must, at a minimum,
28 include:
29 a. Acceptance criteria for each deliverable and
30 service to be provided to the department under the terms of
31 the contract which document, to the greatest extent possible,
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1 the required performance level. Acceptance criteria must be
2 detailed, clear, and unambiguous and shall be used to measure
3 deliverables and services to be provided under the contract.
4 b. A method for monitoring and reporting progress in
5 achieving specified performance standards and levels.
6 c. The sanctions or penalties that shall be assessed
7 for contract or state nonperformance. The department may
8 adopt, by rule, provisions for including in its contracts
9 incremental penalties to be imposed by its contract managers
10 on a contractor due to the contractor's failure to comply with
11 a requirement for corrective action. Any financial penalty
12 that is imposed upon a contractor may not be paid from funds
13 being used to provide services to clients, and the contractor
14 may not reduce the amount of services being delivered to
15 clients as a method for offsetting the effect of the penalty.
16 If a financial penalty is imposed upon a contractor that is a
17 corporation, the department shall notify, at a minimum, the
18 board of directors of the corporation. The department may
19 notify any additional parties that the department believes may
20 be helpful in obtaining the corrective action that is being
21 sought. In addition, the rules adopted by the department must
22 include provisions that permit the department to deduct the
23 financial penalties from funds that would otherwise be due to
24 the contractor, not to exceed 10 percent of the amount that
25 otherwise would be due to the contractor for the period of
26 noncompliance. If the department imposes a financial penalty,
27 it shall advise the contractor in writing of the cause for the
28 penalty. A failure to include such deductions in a request for
29 payment constitutes grounds for the department to reject that
30 request for payment. The remedies identified in this paragraph
31 do not limit or restrict the department's application of any
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1 other remedy available to it in the contract or under law. The
2 remedies described in this paragraph may be cumulative and may
3 be assessed upon each separate failure to comply with
4 instructions from the department to complete corrective
5 action.
6 4. A requirement that the contractor maintain adequate
7 accounting records that comply with all applicable federal and
8 state laws and generally accepted accounting principles.
9 5. A requirement authorizing the department and state
10 to have access to and conduct audits of all records related to
11 the contract and outsourced services.
12 6. A requirement that ownership of any intellectual
13 property developed in the course of, or as a result of, work
14 or services performed under the contract shall transfer to the
15 state if the contractor ceases to provide the outsourced
16 service.
17 7. A requirement describing the timing and substance
18 of all plans and status or progress reports that are to be
19 provided. All plans and status or progress reports must comply
20 with any relevant state and federal standards for planning,
21 implementation, operations, and oversight.
22 8. A requirement that the contractor shall comply with
23 public-record laws. The contractor shall:
24 a. Keep and maintain the public records that
25 ordinarily and necessarily would be required by the department
26 to perform the service.
27 b. Provide public access to such public records on the
28 same terms and conditions that the department would and at a
29 cost that does not exceed that provided in chapter 119.
30 c. Ensure the confidentiality of records that are
31 exempt from disclosure or confidential under law.
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1 d. Meet all legal and auditing requirements for record
2 retention, and transfer to the state, at no cost to the state,
3 all public records in possession of the contractor upon
4 termination of the contract. All records stored electronically
5 must be provided to the state in the format compatible with
6 state information technology systems.
7 9. A requirement that any state funds provided for the
8 purchase of or improvements to real property are contingent
9 upon the contractor granting to the state a security interest
10 in the property which is at least equal to the amount of the
11 state funds provided for at least 5 years following the date
12 of purchase or the completion of the improvements or as
13 further required by law. The contract must include a provision
14 that, as a condition of receipt of state funding for this
15 purpose, the contractor agrees that, if it disposes of the
16 property before the department's interest is vacated, the
17 contractor must refund the proportionate share of the state's
18 initial investment, as adjusted by depreciation.
19 10. A provision that the contractor annually submit
20 and verify, under section 92.525, Florida Statutes, all
21 required financial statements.
22 11. A provision that the contractor will be held
23 responsible and accountable for all work covered under the
24 contract including any work performed by subcontractors. The
25 contract must state that the department may monitor the
26 performance of any subcontractor.
27 (b) A contract may include cost-neutral,
28 performance-based incentives that may vary according to the
29 extent a contractor achieves or surpasses the performance
30 standards set forth in the contract. The incentives may be
31 weighted proportionally to reflect the extent to which the
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1 contractor has demonstrated that it has consistently met or
2 exceeded the contractual requirements and the performance
3 standards.
4 (c) The department shall review the time period for
5 which it executes contracts and shall execute multiyear
6 contracts to make the most efficient use of the resources
7 devoted to contract processing and execution. Whenever the
8 department chooses not to use a multiyear contract, a
9 justification for that decision must be contained in the
10 contract.
11 (d) When the annualized value of a contract is in
12 excess of $1 million, at least one of the persons conducting
13 negotiations must be certified as a contract negotiator based
14 upon standards established by the Department of Management
15 Services.
16 (e) The department may not amend a contract without
17 first submitting the proposed contract amendment to the
18 Executive Office of the Governor for approval if the effect of
19 the amendment would be to increase:
20 1. The value of the contract by $250,000 for those
21 contracts with a total value of at least $250,000 but less
22 than $1 million;
23 2. The value of the contract by $1 million for those
24 contracts with a total value of at least $1 million but less
25 than $10 million;
26 3. The value of the contract by 10 percent for those
27 contracts with a total value of $10 million or more; or
28 4. The term of the contract by 1 year or more.
29
30 When the department proposes any contract amendment that meets
31 the criteria described in this paragraph, it shall submit the
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1 proposed contract amendment to the Executive Office of the
2 Governor for approval and shall immediately notify the chairs
3 of the legislative appropriations committees. The Executive
4 Office of the Governor may not approve the proposed contract
5 amendment until 14 days following receipt of the notification
6 to the legislative appropriations chairs. If either chair of
7 the legislative appropriations committees objects in writing
8 to a proposed contract amendment within 14 days following
9 notification and specifies the reasons for the objection, the
10 Executive Office of the Governor shall disapprove the proposed
11 contract amendment or shall submit the proposed contract
12 amendment to the Administration Commission. The proposed
13 contract amendment may be approved by the Administration
14 Commission by a two-thirds vote of the members present with
15 the Governor voting in the affirmative. In the absence of
16 approval by the commission, the proposed contract amendment
17 shall be automatically disapproved. Otherwise, upon approval
18 by the Governor or Administration Commission, the department
19 may execute the contract amendment.
20 (f) An amendment that is issued under legislative
21 direction, including funding adjustments annually provided for
22 in the General Appropriations Act or the federal
23 appropriations acts, need not be submitted for approval in
24 accordance with paragraph (d).
25 (g) In addition to the requirements of subsections
26 287.057(13) and (14), Florida Statutes, the department shall
27 verify, based on the best available data at the point of
28 contract renegotiations, that all specific direct and indirect
29 costs, savings, performance measures and standards, and
30 qualitative and quantitative benefits identified in the
31 original contract have been satisfied by a contractor or the
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1 department before the contract is extended or renewed. The
2 documentation must include an explanation of any differences
3 between the required performance as identified in the contract
4 and the actual performance of the contractor. The
5 documentation must be included in the official contract file.
6 (h) The department shall, in consultation with the
7 Department of Management Services, develop contract templates
8 and guidelines that define the mandatory contract provisions
9 and other requirements identified in this subsection and that
10 must be used for all contractual service contracts meeting the
11 requirements of this subsection. All contract templates and
12 guidelines shall be developed by September 30, 2005.
13 (6) CONTRACT-MANAGEMENT REQUIREMENTS AND
14 PROCESS.--Notwithstanding section 287.057(15), Florida
15 Statutes, the department is responsible for establishing a
16 contract-management process that requires a member of the
17 department's Senior Management Service to assign in writing
18 the responsibility of a contract to a contract manager. The
19 department shall maintain a set of procedures describing its
20 contract-management process which must minimally include the
21 following requirements:
22 (a) The contract manager shall maintain the official
23 contract file throughout the duration of the contract and for
24 a period not less than 6 years after the termination of the
25 contract.
26 (b) The contract manager shall review all invoices for
27 compliance with the criteria and payment schedule provided for
28 in the contract and shall approve payment of all invoices
29 before their transmission to the Department of Financial
30 Services for payment. Only the contract manager shall approve
31 the invoices for a specific contract, unless the contract
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1 manager is temporarily unavailable to review an invoice. The
2 contract file must contain an explanation for any periods of
3 temporary unavailability of the assigned contract manager. For
4 any individual invoice in excess of $500,000, a member of the
5 Selected Exempt Service or Senior Management Service shall
6 also sign payment approval of the invoice. For any individual
7 invoice in excess of $1 million, a member of the Senior
8 Management Service shall also sign payment approval of the
9 invoice.
10 (c) The contract manager shall maintain a schedule of
11 payments and total amounts disbursed and shall periodically
12 reconcile the records with the state's official accounting
13 records.
14 (d) For contracts involving the provision of direct
15 client services, the contract manager shall periodically visit
16 the physical location where the services are delivered and
17 speak directly to clients receiving the services and the staff
18 responsible for delivering the services.
19 (e) For contracts for which the contractor is a
20 corporation, the contract manager shall attend at least one
21 board meeting semiannually, if held and if within 100 miles of
22 the contract manager's official headquarters.
23 (f) The contract manager shall meet at least once a
24 month directly with the contractor's representative and
25 maintain records of such meetings.
26 (g) The contract manager shall periodically document
27 any differences between the required performance measures and
28 the actual performance measures. If a contractor fails to meet
29 and comply with the performance measures established in the
30 contract, the department may allow a reasonable period for the
31 contractor to correct performance deficiencies. If performance
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1 deficiencies are not resolved to the satisfaction of the
2 department within the prescribed time, and if no extenuating
3 circumstances can be documented by the contractor to the
4 department's satisfaction, the department must terminate the
5 contract. The department may not enter into a new contract
6 with that same contractor for the services for which the
7 contract was previously terminated for a period of at least 24
8 months after the date of termination. The contract manager
9 shall obtain and enforce corrective-action plans, if
10 appropriate, and maintain records regarding the completion or
11 failure to complete corrective-action items.
12 (h) The contract manager shall document any contract
13 modifications, which shall include recording any contract
14 amendments as provided for in this section.
15 (i) The contract manager shall be properly trained
16 before being assigned responsibility for any contract.
17
18 The department shall develop standards of conduct and a range
19 of disciplinary actions for its employees which are
20 specifically related to carrying out contract-management
21 responsibilities.
22 (7) CONTRACT-MONITORING REQUIREMENTS AND PROCESS.--The
23 department shall establish contract-monitoring units staffed
24 by full-time career service employees who report to a member
25 of the Select Exempt Service or Senior Management Service and
26 who have been properly trained to perform contract monitoring.
27 A member of the Senior Management Service shall assign in
28 writing a specific contract to a contract-monitoring unit,
29 with at least one member of the contract-monitoring unit
30 possessing specific knowledge and experience in the contract's
31 program area. The department shall establish a
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1 contract-monitoring process that must include, but need not be
2 limited to, the following requirements:
3 (a) Performing a risk assessment at the start of each
4 fiscal year and preparing an annual contract-monitoring
5 schedule that includes consideration for the level of risk
6 assigned. The department may monitor any contract at any time
7 regardless of whether such monitoring was originally included
8 in the annual contract-monitoring schedule.
9 (b) Preparing a contract-monitoring plan, including
10 sampling procedures, before performing on-site monitoring at
11 external locations of a service provider. The plan must
12 include a description of the programmatic, fiscal, and
13 administrative components that will be monitored on-site. If
14 appropriate, clinical and therapeutic components may be
15 included.
16 (c) Conducting analyses of the performance and
17 compliance of an external service provider by means of desk
18 reviews if the external service provider will not be monitored
19 on-site during a fiscal year.
20 (d) Unless the department sets forth in writing the
21 need for an extension, providing a written report presenting
22 the results of the monitoring within 30 days after the
23 completion of the on-site monitoring or desk review. Report
24 extensions may not exceed 30 days after the original
25 completion date. The department shall develop and use a
26 standard contract-monitoring report format and shall provide
27 access to the reports by means of a website that is available
28 to the Legislature.
29 (e) For contracts involving the provision of direct
30 client services, requiring the contract monitor to visit the
31 physical location where the services are being delivered and
20
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1 to speak directly to the clients receiving the services and
2 with the staff responsible for delivering the services.
3 (f) Developing and maintaining a set of procedures
4 describing the contract-monitoring process.
5
6 The department shall develop standards of conduct and a range
7 of disciplinary actions for its employees which are
8 specifically related to carrying out contract-monitoring
9 responsibilities.
10 (8) CONTRACTOR PROHIBITIONS.--
11 (a) A contractor, as defined in chapter 287, Florida
12 Statutes, or its employees, agents, or subcontractors, may not
13 directly or indirectly supervise, direct, or act as an
14 approving authority over any state employee or over the
15 actions committed to the responsibility of a state employee.
16 (b) A contractor, as defined in chapter 287, Florida
17 Statutes, or its employees, agents, or subcontractors, may not
18 knowingly participate through decision, approval, disapproval,
19 recommendation, preparation of any part of a purchase request,
20 influencing the content of any specification or procurement
21 standard, rendering of advice, investigation, or auditing, or
22 in any other advisory capacity, in the procurement of
23 contractual services from an entity of which the contractor,
24 or its employees, agents, or subcontractors, has a material
25 interest.
26 (9) REPORTS TO THE LEGISLATURE.--Beginning October 1,
27 2005, the department shall make available to the Legislature
28 electronically all documents associated with the procurement
29 and contracting functions of the department. The documents in
30 the database must include, but are not limited to, all:
31 (a) Business cases;
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1 (b) Procurement documents;
2 (c) Contracts and any related files, attachments, or
3 amendments;
4 (d) Contract monitoring reports;
5 (e) Corrective action plans and reports of corrective
6 actions taken when contractor performance deficiencies are
7 identified; and
8 (f) Status reports on all outsourcing initiatives
9 describing the progress by the department towards achieving
10 the business objectives, costs, savings, and quantifiable
11 benefits identified in the business case.
12 Section 2. Section 402.73, Florida Statutes, is
13 amended to read:
14 402.73 Contracting and performance standards.--
15 (1) The Department of Children and Family Services
16 shall establish performance standards for all contracted
17 client services. Notwithstanding s. 287.057(5)(f), the
18 department must competitively procure any contract for client
19 services when any of the following occurs:
20 (a) The provider fails to meet appropriate performance
21 standards established by the department after the provider has
22 been given a reasonable opportunity to achieve the established
23 standards.
24 (b) A new program or service has been authorized and
25 funded by the Legislature and the annual value of the contract
26 for such program or service is $300,000 or more.
27 (c) The department has concluded, after reviewing
28 market prices and available treatment options, that there is
29 evidence that the department can improve the performance
30 outcomes produced by its contract resources. At a minimum, the
31 department shall review market prices and available treatment
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1 options biennially. The department shall compile the results
2 of the biennial review and include the results in its annual
3 performance report to the Legislature pursuant to chapter
4 94-249, Laws of Florida. The department shall provide notice
5 and an opportunity for public comment on its review of market
6 prices and available treatment options.
7 (2) The competitive requirements of subsection (1)
8 must be initiated for each contract that meets the criteria of
9 this subsection, unless the secretary makes a written
10 determination that particular facts and circumstances require
11 deferral of the competitive process. Facts and circumstances
12 must be specifically described for each individual contract
13 proposed for deferral and must include one or more of the
14 following:
15 (a) An immediate threat to the health, safety, or
16 welfare of the department's clients.
17 (b) A threat to appropriate use or disposition of
18 facilities that have been financed in whole, or in substantial
19 part, through contracts or agreements with a state agency.
20 (c) A threat to the service infrastructure of a
21 community which could endanger the well-being of the
22 department's clients.
23
24 Competitive procurement of client services contracts that meet
25 the criteria in subsection (1) may not be deferred for longer
26 than 1 year.
27 (3) The Legislature intends that the department obtain
28 services in the manner that is most cost-effective for the
29 state, that provides the greatest long-term benefits to the
30 clients receiving services, and that minimizes the disruption
31 of client services. In order to meet these legislative goals,
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1 the department may adopt rules providing procedures for the
2 competitive procurement of contracted client services which
3 represent an alternative to the request-for-proposal or
4 invitation-to-bid process. The alternative competitive
5 procedures shall permit the department to solicit professional
6 qualifications from prospective providers and to evaluate such
7 statements of qualification before requesting service
8 proposals. The department may limit the firms invited to
9 submit service proposals to only those firms that have
10 demonstrated the highest level of professional capability to
11 provide the services under consideration, but may not invite
12 fewer than three firms to submit service proposals, unless
13 fewer than three firms submitted satisfactory statements of
14 qualification. The alternative procedures must, at a minimum,
15 allow the department to evaluate competing proposals and
16 select the proposal that provides the greatest benefit to the
17 state while considering the quality of the services,
18 dependability, and integrity of the provider, the
19 dependability of the provider's services, the experience of
20 the provider in serving target populations or client groups
21 substantially identical to members of the target population
22 for the contract in question, and the ability of the provider
23 to secure local funds to support the delivery of services,
24 including, but not limited to, funds derived from local
25 governments. These alternative procedures need not conform to
26 the requirements of s. 287.042 or s. 287.057(1) or (2).
27 (4) The department shall review the period for which
28 it executes contracts and, to the greatest extent practicable,
29 shall execute multiyear contracts to make the most efficient
30 use of the resources devoted to contract processing and
31 execution.
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1 (5) When it is in the best interest of a defined
2 segment of its consumer population, the department may
3 competitively procure and contract for systems of treatment or
4 service that involve multiple providers, rather than procuring
5 and contracting for treatment or services separately from each
6 participating provider. The department must ensure that all
7 providers that participate in the treatment or service system
8 meet all applicable statutory, regulatory, service-quality,
9 and cost-control requirements. If other governmental entities
10 or units of special purpose government contribute matching
11 funds to the support of a given system of treatment or
12 service, the department shall formally request information
13 from those funding entities in the procurement process and may
14 take the information received into account in the selection
15 process. If a local government contributes match to support
16 the system of treatment or contracted service and if the match
17 constitutes at least 25 percent of the value of the contract,
18 the department shall afford the governmental match contributor
19 an opportunity to name an employee as one of the persons
20 required by s. 287.057(17) to evaluate or negotiate certain
21 contracts, unless the department sets forth in writing the
22 reason why such inclusion would be contrary to the best
23 interest of the state. Any employee so named by the
24 governmental match contributor shall qualify as one of the
25 persons required by s. 287.057(17). No governmental entity or
26 unit of special purpose government may name an employee as one
27 of the persons required by s. 287.057(17) if it, or any of its
28 political subdivisions, executive agencies, or special
29 districts, intends to compete for the contract to be awarded.
30 The governmental funding entity or match contributor shall
31 comply with any deadlines and procurement procedures
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1 established by the department. The department may also involve
2 nongovernmental funding entities in the procurement process
3 when appropriate.
4 (6) The department may contract for or provide
5 assessment and case management services independently from
6 treatment services.
7 (7) The department shall adopt, by rule, provisions
8 for including in its contracts incremental penalties to be
9 imposed by its contract managers on a service provider due to
10 the provider's failure to comply with a requirement for
11 corrective action. Any financial penalty that is imposed upon
12 a provider may not be paid from funds being used to provide
13 services to clients, and the provider may not reduce the
14 amount of services being delivered to clients as a method for
15 offsetting the impact of the penalty. If a financial penalty
16 is imposed upon a provider that is a corporation, the
17 department shall notify, at a minimum, the board of directors
18 of the corporation. The department may notify, at its
19 discretion, any additional parties that the department
20 believes may be helpful in obtaining the corrective action
21 that is being sought. Further, the rules adopted by the
22 department must include provisions that permit the department
23 to deduct the financial penalties from funds that would
24 otherwise be due to the provider, not to exceed 10 percent of
25 the amount that otherwise would be due to the provider for the
26 period of noncompliance. If the department imposes a financial
27 penalty, it shall advise the provider in writing of the cause
28 for the penalty. A failure to include such deductions in a
29 request for payment constitutes a ground for the department to
30 reject that request for payment. The remedies identified in
31 this subsection do not limit or restrict the department's
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1 application of any other remedy available to it in the
2 contract or under law. The remedies described in this
3 subsection may be cumulative and may be assessed upon each
4 separate failure to comply with instructions from the
5 department to complete corrective action.
6 (8) The department shall develop standards of conduct
7 and a range of disciplinary actions for its employees which
8 are specifically related to carrying out contracting
9 responsibilities.
10 (1)(9) The Agency for Persons with Disabilities
11 department must implement systems and controls to ensure
12 financial integrity and service provision quality in the
13 developmental services Medicaid waiver service system.
14 (10) If a provider fails to meet the performance
15 standards established in the contract, the department may
16 allow a reasonable period for the provider to correct
17 performance deficiencies. If performance deficiencies are not
18 resolved to the satisfaction of the department within the
19 prescribed time, and if no extenuating circumstances can be
20 documented by the provider to the department's satisfaction,
21 the department must cancel the contract with the provider. The
22 department may not enter into a new contract with that same
23 provider for the services for which the contract was
24 previously canceled for a period of at least 24 months after
25 the date of cancellation. If an adult substance abuse services
26 provider fails to meet the performance standards established
27 in the contract, the department may allow a reasonable period,
28 not to exceed 6 months, for the provider to correct
29 performance deficiencies. If the performance deficiencies are
30 not resolved to the satisfaction of the department within 6
31 months, the department must cancel the contract with the adult
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1 substance abuse provider, unless there is no other qualified
2 provider in the service district.
3 (11) The department shall include in its standard
4 contract document a requirement that any state funds provided
5 for the purchase of or improvements to real property are
6 contingent upon the contractor or political subdivision
7 granting to the state a security interest in the property at
8 least to the amount of the state funds provided for at least 5
9 years from the date of purchase or the completion of the
10 improvements or as further required by law. The contract must
11 include a provision that, as a condition of receipt of state
12 funding for this purpose, the provider agrees that, if it
13 disposes of the property before the department's interest is
14 vacated, the provider will refund the proportionate share of
15 the state's initial investment, as adjusted by depreciation.
16 (12) The department shall develop and refine
17 contracting and accountability methods that are
18 administratively efficient and that provide for optimal
19 provider performance.
20 (13) The department may competitively procure any
21 contract when it deems it is in the best interest of the state
22 to do so. The requirements described in subsection (1) do not,
23 and may not be construed to, limit in any way the department's
24 ability to competitively procure any contract it executes, and
25 the absence of any or all of the criteria described in
26 subsection (1) may not be used as the basis for an
27 administrative or judicial protest of the department's
28 determination to conduct competition, make an award, or
29 execute any contract.
30 (14) A contract may include cost-neutral,
31 performance-based incentives that may vary according to the
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1 extent a provider achieves or surpasses the performance
2 standards set forth in the contract. Such incentives may be
3 weighted proportionally to reflect the extent to which the
4 provider has demonstrated that it has consistently met or
5 exceeded the contractual requirements and the department's
6 performance standards.
7 (2)(15) Nothing contained in chapter 287 shall require
8 competitive bids for health services involving examination,
9 diagnosis, or treatment.
10 Section 3. Section 409.1671, Florida Statutes, is
11 amended to read:
12 409.1671 Foster care and related services; outsourcing
13 privatization.--
14 (1)(a) It is the intent of the Legislature that the
15 Department of Children and Family Services shall outsource
16 privatize the provision of foster care and related services
17 statewide. It is further the Legislature's intent to encourage
18 communities and other stakeholders in the well-being of
19 children to participate in assuring that children are safe and
20 well-nurtured. However, while recognizing that some local
21 governments are presently funding portions of certain foster
22 care and related services programs and may choose to expand
23 such funding in the future, the Legislature does not intend by
24 its outsourcing privatization of foster care and related
25 services that any county, municipality, or special district be
26 required to assist in funding programs that previously have
27 been funded by the state. Counties that provide children and
28 family services with at least 40 licensed residential group
29 care beds by July 1, 2003, and provide at least $2 million
30 annually in county general revenue funds to supplement foster
31 and family care services shall continue to contract directly
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1 with the state and shall be exempt from the provisions of this
2 section. Nothing in this paragraph prohibits any county,
3 municipality, or special district from future voluntary
4 funding participation in foster care and related services. As
5 used in this section, the term "outsource" "privatize" means
6 to contract with competent, community-based agencies. The
7 department shall submit a plan to accomplish outsourcing
8 privatization statewide, through a competitive process, phased
9 in over a 3-year period beginning January 1, 2000. This plan
10 must be developed with local community participation,
11 including, but not limited to, input from community-based
12 providers that are currently under contract with the
13 department to furnish community-based foster care and related
14 services, and must include a methodology for determining and
15 transferring all available funds, including federal funds that
16 the provider is eligible for and agrees to earn and that
17 portion of general revenue funds which is currently associated
18 with the services that are being furnished under contract. The
19 methodology must provide for the transfer of funds
20 appropriated and budgeted for all services and programs that
21 have been incorporated into the project, including all
22 management, capital (including current furniture and
23 equipment), and administrative funds to accomplish the
24 transfer of these programs. This methodology must address
25 expected workload and at least the 3 previous years'
26 experience in expenses and workload. With respect to any
27 district or portion of a district in which outsourcing
28 privatization cannot be accomplished within the 3-year
29 timeframe, the department must clearly state in its plan the
30 reasons the timeframe cannot be met and the efforts that
31 should be made to remediate the obstacles, which may include
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1 alternatives to total outsourcing privatization, such as
2 public-private partnerships. As used in this section, the term
3 "related services" includes, but is not limited to, family
4 preservation, independent living, emergency shelter,
5 residential group care, foster care, therapeutic foster care,
6 intensive residential treatment, foster care supervision, case
7 management, postplacement supervision, permanent foster care,
8 and family reunification. Unless otherwise provided for, the
9 state attorney shall provide child welfare legal services,
10 pursuant to chapter 39 and other relevant provisions, in
11 Pinellas and Pasco Counties. When a private nonprofit agency
12 has received case management responsibilities, transferred
13 from the state under this section, for a child who is
14 sheltered or found to be dependent and who is assigned to the
15 care of the outsourcing privatization project, the agency may
16 act as the child's guardian for the purpose of registering the
17 child in school if a parent or guardian of the child is
18 unavailable and his or her whereabouts cannot reasonably be
19 ascertained. The private nonprofit agency may also seek
20 emergency medical attention for such a child, but only if a
21 parent or guardian of the child is unavailable, his or her
22 whereabouts cannot reasonably be ascertained, and a court
23 order for such emergency medical services cannot be obtained
24 because of the severity of the emergency or because it is
25 after normal working hours. However, the provider may not
26 consent to sterilization, abortion, or termination of life
27 support. If a child's parents' rights have been terminated,
28 the nonprofit agency shall act as guardian of the child in all
29 circumstances.
30 (b) It is the intent of the Legislature that the
31 department will continue to work towards full outsourcing
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1 privatization in a manner that assures the viability of the
2 community-based system of care and best provides for the
3 safety of children in the child protection system. To this
4 end, the department is directed to continue the process of
5 outsourcing privatizing services in those counties in which
6 signed startup contracts have been executed. The department
7 may also continue to enter into startup contracts with
8 additional counties. However, no services shall be transferred
9 to a community-based care lead agency until the department, in
10 consultation with the local community alliance, has determined
11 and certified in writing to the Governor and the Legislature
12 that the district is prepared to transition the provision of
13 services to the lead agency and that the lead agency is ready
14 to deliver and be accountable for such service provision. In
15 making this determination, the department shall conduct a
16 readiness assessment of the district and the lead agency.
17 1. The assessment shall evaluate the operational
18 readiness of the district and the lead agency based on:
19 a. A set of uniform criteria, developed in
20 consultation with currently operating community-based care
21 lead agencies and reflecting national accreditation standards,
22 that evaluate programmatic, financial, technical assistance,
23 training and organizational competencies; and
24 b. Local criteria reflective of the local
25 community-based care design and the community alliance
26 priorities.
27 2. The readiness assessment shall be conducted by a
28 joint team of district and lead agency staff with direct
29 experience with the start up and operation of a
30 community-based care service program and representatives from
31 the appropriate community alliance. Within resources available
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1 for this purpose, the department may secure outside audit
2 expertise when necessary to assist a readiness assessment
3 team.
4 3. Upon completion of a readiness assessment, the
5 assessment team shall conduct an exit conference with the
6 district and lead agency staff responsible for the transition.
7 4. Within 30 days following the exit conference with
8 staff of each district and lead agency, the secretary shall
9 certify in writing to the Governor and the Legislature that
10 both the district and the lead agency are prepared to begin
11 the transition of service provision based on the results of
12 the readiness assessment and the exit conference. The document
13 of certification must include specific evidence of readiness
14 on each element of the readiness instrument utilized by the
15 assessment team as well as a description of each element of
16 readiness needing improvement and strategies being implemented
17 to address each one.
18 (c) The Auditor General and the Office of Program
19 Policy Analysis and Government Accountability (OPPAGA), in
20 consultation with The Child Welfare League of America and the
21 Louis de la Parte Florida Mental Health Institute, shall
22 jointly review and assess the department's process for
23 determining district and lead agency readiness.
24 1. The review must, at a minimum, address the
25 appropriateness of the readiness criteria and instruments
26 applied, the appropriateness of the qualifications of
27 participants on each readiness assessment team, the degree to
28 which the department accurately determined each district and
29 lead agency's compliance with the readiness criteria, the
30 quality of the technical assistance provided by the department
31 to a lead agency in correcting any weaknesses identified in
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1 the readiness assessment, and the degree to which each lead
2 agency overcame any identified weaknesses.
3 2. Reports of these reviews must be submitted to the
4 appropriate substantive and appropriations committees in the
5 Senate and the House of Representatives on March 1 and
6 September 1 of each year until full transition to
7 community-based care has been accomplished statewide, except
8 that the first report must be submitted by February 1, 2004,
9 and must address all readiness activities undertaken through
10 June 30, 2003. The perspectives of all participants in this
11 review process must be included in each report.
12 (d) In communities where economic or demographic
13 constraints make it impossible or not feasible to
14 competitively contract with a lead agency, the department
15 shall develop an alternative plan in collaboration with the
16 local community alliance, which may include establishing
17 innovative geographical configurations or consortia of
18 agencies. The plan must detail how the community will continue
19 to implement community-based care through competitively
20 procuring either the specific components of foster care and
21 related services or comprehensive services for defined
22 eligible populations of children and families from qualified
23 licensed agencies as part of its efforts to develop the local
24 capacity for a community-based system of coordinated care. The
25 plan must ensure local control over the management and
26 administration of the service provision in accordance with the
27 intent of this section and may include recognized best
28 business practices, including some form of public or private
29 partnerships.
30 (e) As used in this section, the term "eligible lead
31 community-based provider" means a single agency with which the
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1 department shall contract for the provision of child
2 protective services in a community that is no smaller than a
3 county. The secretary of the department may authorize more
4 than one eligible lead community-based provider within a
5 single county when to do so will result in more effective
6 delivery of foster care and related services. To compete for
7 an outsourcing a privatization project, such agency must have:
8 1. The ability to coordinate, integrate, and manage
9 all child protective services in the designated community in
10 cooperation with child protective investigations.
11 2. The ability to ensure continuity of care from entry
12 to exit for all children referred from the protective
13 investigation and court systems.
14 3. The ability to provide directly, or contract for
15 through a local network of providers, all necessary child
16 protective services. Such agencies should directly provide no
17 more than 35 percent of all child protective services
18 provided.
19 4. The willingness to accept accountability for
20 meeting the outcomes and performance standards related to
21 child protective services established by the Legislature and
22 the Federal Government.
23 5. The capability and the willingness to serve all
24 children referred to it from the protective investigation and
25 court systems, regardless of the level of funding allocated to
26 the community by the state, provided all related funding is
27 transferred.
28 6. The willingness to ensure that each individual who
29 provides child protective services completes the training
30 required of child protective service workers by the Department
31 of Children and Family Services.
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1 7. The ability to maintain eligibility to receive all
2 federal child welfare funds, including Title IV-E and IV-A
3 funds, currently being used by the Department of Children and
4 Family Services.
5 8. Written agreements with Healthy Families Florida
6 lead entities in their community, pursuant to s. 409.153, to
7 promote cooperative planning for the provision of prevention
8 and intervention services.
9 9. A board of directors, of which at least 51 percent
10 of the membership is comprised of persons residing in this
11 state. Of the state residents, at least 51 percent must also
12 reside within the service area of the lead community-based
13 provider.
14 (f)1. The Legislature finds that the state has
15 traditionally provided foster care services to children who
16 have been the responsibility of the state. As such, foster
17 children have not had the right to recover for injuries beyond
18 the limitations specified in s. 768.28. The Legislature has
19 determined that foster care and related services need to be
20 outsourced privatized pursuant to this section and that the
21 provision of such services is of paramount importance to the
22 state. The purpose for such outsourcing privatization is to
23 increase the level of safety, security, and stability of
24 children who are or become the responsibility of the state.
25 One of the components necessary to secure a safe and stable
26 environment for such children is that private providers
27 maintain liability insurance. As such, insurance needs to be
28 available and remain available to nongovernmental foster care
29 and related services providers without the resources of such
30 providers being significantly reduced by the cost of
31 maintaining such insurance.
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1 2. The Legislature further finds that, by requiring
2 the following minimum levels of insurance, children in
3 outsourced privatized foster care and related services will
4 gain increased protection and rights of recovery in the event
5 of injury than provided for in s. 768.28.
6 (g) In any county in which a service contract has not
7 been executed by December 31, 2004, the department shall
8 ensure access to a model comprehensive residential services
9 program as described in s. 409.1677 which, without imposing
10 undue financial, geographic, or other barriers, ensures
11 reasonable and appropriate participation by the family in the
12 child's program.
13 1. In order to ensure that the program is operational
14 by December 31, 2004, the department must, by December 31,
15 2003, begin the process of establishing access to a program in
16 any county in which the department has not either entered into
17 a transition contract or approved a community plan, as
18 described in paragraph (d), which ensures full outsourcing
19 privatization by the statutory deadline.
20 2. The program must be procured through a competitive
21 process.
22 3. The Legislature does not intend for the provisions
23 of this paragraph to substitute for the requirement that full
24 conversion to community-based care be accomplished.
25 (h) Other than an entity to which s. 768.28 applies,
26 any eligible lead community-based provider, as defined in
27 paragraph (e), or its employees or officers, except as
28 otherwise provided in paragraph (i), must, as a part of its
29 contract, obtain a minimum of $1 million per claim/$3 million
30 per incident in general liability insurance coverage. The
31 eligible lead community-based provider must also require that
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1 staff who transport client children and families in their
2 personal automobiles in order to carry out their job
3 responsibilities obtain minimum bodily injury liability
4 insurance in the amount of $100,000 per claim, $300,000 per
5 incident, on their personal automobiles. In any tort action
6 brought against such an eligible lead community-based provider
7 or employee, net economic damages shall be limited to $1
8 million per liability claim and $100,000 per automobile claim,
9 including, but not limited to, past and future medical
10 expenses, wage loss, and loss of earning capacity, offset by
11 any collateral source payment paid or payable. In any tort
12 action brought against such an eligible lead community-based
13 provider, noneconomic damages shall be limited to $200,000 per
14 claim. A claims bill may be brought on behalf of a claimant
15 pursuant to s. 768.28 for any amount exceeding the limits
16 specified in this paragraph. Any offset of collateral source
17 payments made as of the date of the settlement or judgment
18 shall be in accordance with s. 768.76. The lead
19 community-based provider shall not be liable in tort for the
20 acts or omissions of its subcontractors or the officers,
21 agents, or employees of its subcontractors.
22 (i) The liability of an eligible lead community-based
23 provider described in this section shall be exclusive and in
24 place of all other liability of such provider. The same
25 immunities from liability enjoyed by such providers shall
26 extend as well to each employee of the provider when such
27 employee is acting in furtherance of the provider's business,
28 including the transportation of clients served, as described
29 in this subsection, in privately owned vehicles. Such
30 immunities shall not be applicable to a provider or an
31 employee who acts in a culpably negligent manner or with
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1 willful and wanton disregard or unprovoked physical aggression
2 when such acts result in injury or death or such acts
3 proximately cause such injury or death; nor shall such
4 immunities be applicable to employees of the same provider
5 when each is operating in the furtherance of the provider's
6 business, but they are assigned primarily to unrelated works
7 within private or public employment. The same immunity
8 provisions enjoyed by a provider shall also apply to any sole
9 proprietor, partner, corporate officer or director,
10 supervisor, or other person who in the course and scope of his
11 or her duties acts in a managerial or policymaking capacity
12 and the conduct that caused the alleged injury arose within
13 the course and scope of those managerial or policymaking
14 duties. Culpable negligence is defined as reckless
15 indifference or grossly careless disregard of human life.
16 (j) Any subcontractor of an eligible lead
17 community-based provider, as defined in paragraph (e), which
18 is a direct provider of foster care and related services to
19 children and families, and its employees or officers, except
20 as otherwise provided in paragraph (i), must, as a part of its
21 contract, obtain a minimum of $1 million per claim/$3 million
22 per incident in general liability insurance coverage. The
23 subcontractor of an eligible lead community-based provider
24 must also require that staff who transport client children and
25 families in their personal automobiles in order to carry out
26 their job responsibilities obtain minimum bodily injury
27 liability insurance in the amount of $100,000 per claim,
28 $300,000 per incident, on their personal automobiles. In any
29 tort action brought against such subcontractor or employee,
30 net economic damages shall be limited to $1 million per
31 liability claim and $100,000 per automobile claim, including,
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1 but not limited to, past and future medical expenses, wage
2 loss, and loss of earning capacity, offset by any collateral
3 source payment paid or payable. In any tort action brought
4 against such subcontractor, noneconomic damages shall be
5 limited to $200,000 per claim. A claims bill may be brought on
6 behalf of a claimant pursuant to s. 768.28 for any amount
7 exceeding the limits specified in this paragraph. Any offset
8 of collateral source payments made as of the date of the
9 settlement or judgment shall be in accordance with s. 768.76.
10 (k) The liability of a subcontractor of an eligible
11 lead community-based provider that is a direct provider of
12 foster care and related services as described in this section
13 shall be exclusive and in place of all other liability of such
14 provider. The same immunities from liability enjoyed by such
15 subcontractor provider shall extend as well to each employee
16 of the subcontractor when such employee is acting in
17 furtherance of the subcontractor's business, including the
18 transportation of clients served, as described in this
19 subsection, in privately owned vehicles. Such immunities shall
20 not be applicable to a subcontractor or an employee who acts
21 in a culpably negligent manner or with willful and wanton
22 disregard or unprovoked physical aggression when such acts
23 result in injury or death or such acts proximately cause such
24 injury or death; nor shall such immunities be applicable to
25 employees of the same subcontractor when each is operating in
26 the furtherance of the subcontractor's business, but they are
27 assigned primarily to unrelated works within private or public
28 employment. The same immunity provisions enjoyed by a
29 subcontractor shall also apply to any sole proprietor,
30 partner, corporate officer or director, supervisor, or other
31 person who in the course and scope of his or her duties acts
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1 in a managerial or policymaking capacity and the conduct that
2 caused the alleged injury arose within the course and scope of
3 those managerial or policymaking duties. Culpable negligence
4 is defined as reckless indifference or grossly careless
5 disregard of human life.
6 (l) The Legislature is cognizant of the increasing
7 costs of goods and services each year and recognizes that
8 fixing a set amount of compensation actually has the effect of
9 a reduction in compensation each year. Accordingly, the
10 conditional limitations on damages in this section shall be
11 increased at the rate of 5 percent each year, prorated from
12 the effective date of this paragraph to the date at which
13 damages subject to such limitations are awarded by final
14 judgment or settlement.
15 (2)(a) The department may contract for the delivery,
16 administration, or management of protective services, the
17 services specified in subsection (1) relating to foster care,
18 and other related services or programs, as appropriate. The
19 department shall retain responsibility for the quality of
20 contracted services and programs and shall ensure that
21 services are delivered in accordance with applicable federal
22 and state statutes and regulations. The department must adopt
23 written policies and procedures for monitoring the contract
24 for delivery of services by lead community-based providers.
25 These policies and procedures must, at a minimum, address the
26 evaluation of fiscal accountability and program operations,
27 including provider achievement of performance standards,
28 provider monitoring of subcontractors, and timely followup of
29 corrective actions for significant monitoring findings related
30 to providers and subcontractors. These policies and procedures
31 must also include provisions for reducing the duplication of
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1 the department's program monitoring activities both internally
2 and with other agencies, to the extent possible. The
3 department's written procedures must ensure that the written
4 findings, conclusions, and recommendations from monitoring the
5 contract for services of lead community-based providers are
6 communicated to the director of the provider agency as
7 expeditiously as possible.
8 (b) Persons employed by the department in the
9 provision of foster care and related services whose positions
10 are being outsourced under privatized pursuant to this statute
11 shall be given hiring preference by the provider, if provider
12 qualifications are met.
13 (3)(a) In order to help ensure a seamless child
14 protection system, the department shall ensure that contracts
15 entered into with community-based agencies pursuant to this
16 section include provisions for a case-transfer process to
17 determine the date that the community-based agency will
18 initiate the appropriate services for a child and family. This
19 case-transfer process must clearly identify the closure of the
20 protective investigation and the initiation of service
21 provision. At the point of case transfer, and at the
22 conclusion of an investigation, the department must provide a
23 complete summary of the findings of the investigation to the
24 community-based agency.
25 (b) The contracts must also ensure that each
26 community-based agency shall furnish information on its
27 activities in all cases in client case records.
28 (c) The contract between the department and
29 community-based agencies must include provisions that specify
30 the procedures to be used by the parties to resolve
31 differences in interpreting the contract or to resolve
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1 disputes as to the adequacy of the parties' compliance with
2 their respective obligations under the contract.
3 (d) Each contract with an eligible lead
4 community-based provider shall provide for the payment by the
5 department to the provider of a reasonable administrative cost
6 in addition to funding for the provision of services.
7 (e) Each contract with an eligible lead
8 community-based provider must include all performance outcome
9 measures established by the Legislature and that are under the
10 control of the lead agency. The standards must be adjusted
11 annually by contract amendment to enable the department to
12 meet the legislatively established statewide standards.
13 (4)(a) The department, in consultation with the
14 community-based agencies that are undertaking the outsourced
15 privatized projects, shall establish a quality assurance
16 program for privatized services. The quality assurance program
17 shall be based on standards established by the Adoption and
18 Safe Families Act as well as by a national accrediting
19 organization such as the Council on Accreditation of Services
20 for Families and Children, Inc. (COA) or CARF--the
21 Rehabilitation Accreditation Commission. Each program operated
22 under contract with a community-based agency must be evaluated
23 annually by the department. The department shall, to the
24 extent possible, use independent financial audits provided by
25 the community-based care agency to eliminate or reduce the
26 ongoing contract and administrative reviews conducted by the
27 department. The department may suggest additional items to be
28 included in such independent financial audits to meet the
29 department's needs. Should the department determine that such
30 independent financial audits are inadequate, then other
31 audits, as necessary, may be conducted by the department.
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1 Nothing herein shall abrogate the requirements of s. 215.97.
2 The department shall submit an annual report regarding quality
3 performance, outcome measure attainment, and cost efficiency
4 to the President of the Senate, the Speaker of the House of
5 Representatives, the minority leader of each house of the
6 Legislature, and the Governor no later than January 31 of each
7 year for each project in operation during the preceding fiscal
8 year.
9 (b) The department shall use these findings in making
10 recommendations to the Governor and the Legislature for future
11 program and funding priorities in the child welfare system.
12 (5)(a) The community-based agency must comply with
13 statutory requirements and agency rules in the provision of
14 contractual services. Each foster home, therapeutic foster
15 home, emergency shelter, or other placement facility operated
16 by the community-based agency or agencies must be licensed by
17 the Department of Children and Family Services under chapter
18 402 or this chapter. Each community-based agency must be
19 licensed as a child-caring or child-placing agency by the
20 department under this chapter. The department, in order to
21 eliminate or reduce the number of duplicate inspections by
22 various program offices, shall coordinate inspections required
23 pursuant to licensure of agencies under this section.
24 (b) Substitute care providers who are licensed under
25 s. 409.175 and have contracted with a lead agency authorized
26 under this section shall also be authorized to provide
27 registered or licensed family day care under s. 402.313, if
28 consistent with federal law and if the home has met the
29 requirements of s. 402.313.
30 (c) A dually licensed home under this section shall be
31 eligible to receive both an out-of-home care payment and a
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1 subsidized child care payment for the same child pursuant to
2 federal law. The department may adopt administrative rules
3 necessary to administer this paragraph.
4 (6) Beginning January 1, 1999, and continuing at least
5 through June 30, 2000, the Department of Children and Family
6 Services shall outsource privatize all foster care and related
7 services in district 5 while continuing to contract with the
8 current model programs in districts 1, 4, and 13, and in
9 subdistrict 8A, and shall expand the subdistrict 8A pilot
10 program to incorporate Manatee County. Planning for the
11 district 5 outsourcing privatization shall be done by
12 providers that are currently under contract with the
13 department for foster care and related services and shall be
14 done in consultation with the department. A lead provider of
15 the district 5 program shall be competitively selected, must
16 demonstrate the ability to provide necessary comprehensive
17 services through a local network of providers, and must meet
18 criteria established in this section. Contracts with
19 organizations responsible for the model programs must include
20 the management and administration of all outsourced privatized
21 services specified in subsection (1). However, the department
22 may use funds for contract management only after obtaining
23 written approval from the Executive Office of the Governor.
24 The request for such approval must include, but is not limited
25 to, a statement of the proposed amount of such funds and a
26 description of the manner in which such funds will be used. If
27 the community-based organization selected for a model program
28 under this subsection is not a Medicaid provider, the
29 organization shall be issued a Medicaid provider number
30 pursuant to s. 409.907 for the provision of services currently
31 authorized under the state Medicaid plan to those children
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1 encompassed in this model and in a manner not to exceed the
2 current level of state expenditure.
3 (7) The Florida Coalition for Children, Inc., in
4 consultation with the department, shall develop a plan based
5 on an independent actuarial study regarding the long-term use
6 and structure of a statewide community-based care risk pool
7 for the protection of eligible lead community-based providers,
8 their subcontractors, and providers of other social services
9 who contract directly with the department. The plan must also
10 outline strategies to maximize federal earnings as they relate
11 to the community-based care risk pool. At a minimum, the plan
12 must allow for the use of federal earnings received from child
13 welfare programs to be allocated to the community-based care
14 risk pool by the department, which earnings are determined by
15 the department to be in excess of the amount appropriated in
16 the General Appropriations Act. The plan must specify the
17 necessary steps to ensure the financial integrity and
18 industry-standard risk management practices of the
19 community-based care risk pool and the continued availability
20 of funding from federal, state, and local sources. The plan
21 must also include recommendations that permit the program to
22 be available to entities of the department providing child
23 welfare services until full conversion to community-based care
24 takes place. The final plan shall be submitted to the
25 department and then to the Executive Office of the Governor
26 and the Legislative Budget Commission for formal adoption
27 before January 1, 2005. Upon approval of the plan by all
28 parties, the department shall issue an interest-free loan that
29 is secured by the cumulative contractual revenue of the
30 community-based care risk pool membership, and the amount of
31 the loan shall equal the amount appropriated by the
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1 Legislature for this purpose. The plan shall provide for a
2 governance structure that assures the department the ability
3 to oversee the operation of the community-based care risk pool
4 at least until this loan is repaid in full.
5 (a) The purposes for which the community-based care
6 risk pool shall be used include, but are not limited to:
7 1. Significant changes in the number or composition of
8 clients eligible to receive services.
9 2. Significant changes in the services that are
10 eligible for reimbursement.
11 3. Scheduled or unanticipated, but necessary, advances
12 to providers or other cash-flow issues.
13 4. Proposals to participate in optional Medicaid
14 services or other federal grant opportunities.
15 5. Appropriate incentive structures.
16 6. Continuity of care in the event of failure,
17 discontinuance of service, or financial misconduct by a lead
18 agency.
19 7. Payment for time-limited technical assistance and
20 consultation to lead agencies in the event of serious
21 performance or management problems.
22 8. Payment for meeting all traditional and
23 nontraditional insurance needs of eligible members.
24 9. Significant changes in the mix of available funds.
25 (b) After approval of the plan in the 2004-2005 fiscal
26 year and annually thereafter, the department may also request
27 in its annual legislative budget request, and the Governor may
28 recommend, that the funding necessary to carry out paragraph
29 (a) be appropriated to the department. Subsequent funding of
30 the community-based care risk pool shall be supported by
31 premiums assessed to members of the community-based care risk
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1 pool on a recurring basis. The community-based care risk pool
2 may invest and retain interest earned on these funds. In
3 addition, the department may transfer funds to the
4 community-based care risk pool as available in order to ensure
5 an adequate funding level if the fund is declared to be
6 insolvent and approval is granted by the Legislative Budget
7 Commission. Such payments for insolvency shall be made only
8 after a determination is made by the department or its actuary
9 that all participants in the community-based care risk pool
10 are current in their payments of premiums and that assessments
11 have been made at an actuarially sound level. Such payments by
12 participants in the community-based care risk pool may not
13 exceed reasonable industry standards, as determined by the
14 actuary. Money from this fund may be used to match available
15 federal dollars. Dividends or other payments, with the
16 exception of legitimate claims, may not be paid to members of
17 the community-based care risk pool until the loan issued by
18 the department is repaid in full. Dividends or other payments,
19 with the exception of legitimate claims and other purposes
20 contained in the approved plan, may not be paid to members of
21 the community-based care risk pool unless, at the time of
22 distribution, the community-based care risk pool is deemed
23 actuarially sound and solvent. Solvency shall be determined by
24 an independent actuary contracted by the department. The plan
25 shall be developed in consultation with the Office of
26 Insurance Regulation.
27 1. Such funds shall constitute partial security for
28 contract performance by lead agencies and shall be used to
29 offset the need for a performance bond. Subject to the
30 approval of the plan, the community-based care risk pool shall
31 be managed by the Florida Coalition for Children, Inc., or the
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1 designated contractors of the Florida Coalition for Children,
2 Inc. Nonmembers of the community-based care risk pool may
3 continue to contract with the department but must provide a
4 letter of credit equal to one-twelfth of the annual contract
5 amount in lieu of membership in the community-based care risk
6 pool.
7 2. The department may separately require a bond to
8 mitigate the financial consequences of potential acts of
9 malfeasance, misfeasance, or criminal violations by the
10 provider.
11 (8) Notwithstanding the provisions of s. 215.425, all
12 documented federal funds earned for the current fiscal year by
13 the department and community-based agencies which exceed the
14 amount appropriated by the Legislature shall be distributed to
15 all entities that contributed to the excess earnings based on
16 a schedule and methodology developed by the department and
17 approved by the Executive Office of the Governor. Distribution
18 shall be pro rata based on total earnings and shall be made
19 only to those entities that contributed to excess earnings.
20 Excess earnings of community-based agencies shall be used only
21 in the service district in which they were earned. Additional
22 state funds appropriated by the Legislature for
23 community-based agencies or made available pursuant to the
24 budgetary amendment process described in s. 216.177 shall be
25 transferred to the community-based agencies. The department
26 shall amend a community-based agency's contract to permit
27 expenditure of the funds.
28 (9) Each district and subdistrict that participates in
29 the model program effort or any future outsourcing
30 privatization effort as described in this section must
31 thoroughly analyze and report the complete direct and indirect
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1 costs of delivering these services through the department and
2 the full cost of outsourcing privatization, including the cost
3 of monitoring and evaluating the contracted services.
4 (10) The lead community-based providers and their
5 subcontractors shall be exempt from state travel policies as
6 set forth in s. 112.061(3)(a) for their travel expenses
7 incurred in order to comply with the requirements of this
8 section.
9 Section 4. The Office of Program Policy Analysis and
10 Government Accountability shall conduct two reviews of the
11 contract-management and accountability structures of the
12 Department of Children and Family Services, including, but not
13 limited to, whether the department is adequately monitoring
14 and managing its outsourced or privatized functions and
15 services. The office shall report its findings and
16 recommendations to the President of the Senate, the Speaker of
17 the House of Representatives, and the Auditor General by
18 February 1 of 2006 and 2007, respectively.
19 Section 5. Section 402.72, Florida Statutes, is
20 repealed.
21 Section 6. The nonrecurring sum of $102,232 is
22 appropriated from the General Revenue Fund to the Department
23 of Children and Family Services for the 2005-2006 fiscal year,
24 to comply with the electronic-reporting requirements in
25 section 1 of this act.
26 Section 7. This act shall take effect July 1, 2005.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 CS for CS for Senate Bill 1476
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4
- Requires the Department of Children and Family Services
5 to justify, in the contract, a decision not to use
multiyear contracts. This provision applies to contracts
6 in excess of $250,000.
7 - Clarifies that the verifications required when a contract
is extended or renewed shall be based on the best
8 available data at the point of contract renegotiations.
9 - Prohibits contractors from supervising state employees
and from participating in any procurement process in
10 which the contractor has a material interest.
11 - Appropriates $102,232 from non-recurring general revenue
funds to the Department of Children and Family Services
12 for Fiscal Year 2005-2006 to fund the electronic
reporting requirements mandated in this legislation.
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