Senate Bill sb0228

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    Florida Senate - 2006                                   SB 228

    By Senator Fasano





    11-324-06

  1                      A bill to be entitled

  2         An act relating to community behavioral health

  3         agencies; creating s. 624.4624, F.S.;

  4         authorizing certain nonprofit community mental

  5         health or substance abuse providers to form a

  6         self-insurance fund for certain purposes;

  7         providing operating requirements of the

  8         self-insurance fund; requiring certain funds to

  9         initially be organized and operate as a

10         commercial self-insurance fund for a specified

11         time; requiring certain self-insurance funds to

12         comply with requirements for annual financial

13         statements for a specified time; providing that

14         a self-insurance fund is not an insurer for

15         certain purposes; creating s. 394.9085, F.S.;

16         limiting net economic damages per claim in

17         certain tort actions brought against certain

18         programs or facilities; providing criteria for

19         such claims; requiring that damages be offset

20         by certain collateral source payments;

21         requiring that costs to defend actions be

22         assumed by the provider or its insurer;

23         providing for exclusivity of such liability;

24         providing for extension of certain immunities

25         to employees of such programs or facilities;

26         providing an exception; requiring eligible

27         providers to obtain and maintain certain

28         general liability coverage; specifying that

29         persons providing contractual services to the

30         state are not agents or employees for certain

31         purposes; providing for an annual increase in

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    Florida Senate - 2006                                   SB 228
    11-324-06




 1         the conditional limitations on damages;

 2         providing an effective date.

 3  

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

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 6         Section 1.  Section 624.4624, Florida Statutes, is

 7  created to read:

 8         624.4624  Nonprofit community mental health and

 9  substance abuse provider self-insurance fund.--

10         (1)  Notwithstanding any other provision of law, any

11  two or more nonprofit community mental health or substance

12  abuse providers, which are members in good standing of a

13  nonprofit statewide association that has been in existence for

14  at least 10 years and is comprised of at least 50

15  community-based mental health and substance abuse agencies

16  that are primarily publicly funded and located in this state,

17  may form a self-insurance fund for the purpose of pooling and

18  spreading liabilities of its group members in any property or

19  casualty risk or surety insurance or securing the payment of

20  benefits under chapter 440, if the nonprofit community mental

21  health and substance abuse provider self-insurance fund:

22         (a)  Has annual normal premiums in excess of $5

23  million;

24         (b)  Maintains a continuing program of excess insurance

25  coverage and reserve evaluation to protect the financial

26  stability of the fund in an amount and manner determined by a

27  qualified and independent actuary;

28         (c)  Submits to the office annually an audited fiscal

29  year-end financial statement by an independent certified

30  public accountant within 6 months after the end of the fiscal

31  year; and

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    Florida Senate - 2006                                   SB 228
    11-324-06




 1         (d)  Has a governing body that is comprised entirely of

 2  community mental health and substance abuse provider

 3  officials.

 4         (2)  A nonprofit community mental health and substance

 5  abuse provider self-insurance fund that meets the requirements

 6  of this section is not subject to s. 624.4621 and is not

 7  required to file any report with the department under s.

 8  440.38(2)(b) required of group self-insurer funds qualified

 9  under s. 624.4621. If any of the requirements of this section

10  are not met, the nonprofit mental health and substance abuse

11  provider self-insurance fund is subject to the requirements of

12  s. 624.4621.

13         (3)(a)  Notwithstanding subsection (2), a nonprofit

14  community mental health and substance abuse provider

15  self-insurance fund created under this section after October

16  1, 2006, shall initially be subject to the requirements of a

17  commercial fund under s. 624.4621 and, for the first 5 years

18  of its existence, shall be subject to all the requirements

19  applied to commercial self-insurance funds or to group

20  self-insurance funds, respectively.

21         (b)1.  A nonprofit community mental health and

22  substance abuse provider self-insurance fund formed after

23  January 1, 2007, shall, for its first 5 fiscal years, file

24  with the office full and true statements of its financial

25  condition, transactions, and affairs. An annual statement

26  covering the preceding fiscal year shall be filed within 60

27  days after the end of the fund's fiscal year and quarterly

28  statements shall be filed within 45 days after each such date.

29  The office may, for good cause, grant an extension of time for

30  filing an annual or quarterly statement. The statements must

31  contain information generally included in insurers' financial

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    Florida Senate - 2006                                   SB 228
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 1  statements prepared in accordance with generally accepted

 2  insurance accounting principles and practices and in a form

 3  generally used by insurers for financial statements, sworn to

 4  by at least two executive officers of the self-insurance fund.

 5  The form for financial statements shall be the form currently

 6  approved by the National Association of Insurance

 7  Commissioners for use by property and casualty insurers.

 8         2.  Each annual statement must contain a statement of

 9  opinion on loss and loss adjustment expense reserves made by a

10  member of the American Academy of Actuaries. Workpapers in

11  support of the statement of opinion must be provided to the

12  office upon request.

13         Section 2.  A self-insurance fund created under this

14  act is not an insurer for any purpose under chapter 631,

15  Florida Statutes.

16         Section 3.  Section 394.9085, Florida Statutes, is

17  created to read:

18         394.9085  Behavioral provider liability.--

19         (1)  In any tort action based on services provided for

20  crisis stabilization brought against a detoxification program

21  as defined in s. 397.311(18)(b), an addictions receiving

22  facility as defined in s. 397.311(18)(a), or a designated

23  public receiving facility as defined in s. 394.455(26), net

24  economic damages shall be limited to $1 million per liability

25  claim, including, but not limited to, past and future medical

26  expenses, wage loss, and loss of earning capacity, offset by

27  any collateral source payment paid in accordance with s.

28  768.76. In any tort action based on services provided for

29  crisis stabilization brought against any detoxification

30  program as defined in s. 397.311(18)(b), an addictions

31  receiving facility as defined in s. 397.311(18)(a), or a

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    Florida Senate - 2006                                   SB 228
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 1  designated public receiving facility as defined in s.

 2  394.455(26), noneconomic damages shall be limited to $200,000

 3  per claim. Any claim may be settled up to policy limits

 4  without further act of the Legislature. A claims bill may be

 5  brought on behalf of a claimant pursuant to s. 768.28 for any

 6  amount exceeding the limits specified in this subsection. Any

 7  costs in defending actions brought under this section shall be

 8  assumed by the provider or its insurer.

 9         (2)  The liability of a detoxification program as

10  defined in s. 397.311(18)(b), an addictions receiving facility

11  as defined in s. 397.311(18)(a), or any designated public

12  receiving facility as defined in s. 394.455(26) shall be

13  exclusive and in place of all other liability of such

14  provider. The same immunities from liability enjoyed by such

15  providers shall extend to each employee of the provider when

16  such employee is acting in furtherance of the provider's

17  responsibilities under its contract with the department. Such

18  immunities do not apply to a provider or employee who acts in

19  a culpably negligent manner or with willful and wanton

20  disregard or unprovoked physical aggression when such acts

21  result in injury or death.

22         (3)  The eligible provider under this section must, as

23  part of its contract, obtain and maintain a minimum of $1

24  million per claim and $3 million per incident in general

25  liability coverage.

26         (4)  This section does not designate a person who

27  provides contracted services to the Department of Children and

28  Family Services as an employee or agent of the state for

29  purposes of chapter 440.

30         (5)  The Legislature is cognizant of the increasing

31  costs of goods and services each year and recognizes that

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    Florida Senate - 2006                                   SB 228
    11-324-06




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

 2  a reduction in compensation each year. Accordingly, the

 3  conditional limitations on damages in this section shall be

 4  increased at the rate of 5 percent each year, prorated from

 5  the July 1, 2006, to the date at which damages subject to such

 6  limitations are awarded by final judgment or settlement.

 7         Section 4.  This act shall take effect July 1, 2006.

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