CS/CS/HB 491

1
A bill to be entitled
2An act relating to the H. Lee Moffitt Cancer Center and
3Research Institute; amending s. 1004.43, F.S.; revising
4provisions relating to the establishment of the institute
5and specifying primary responsibilities of the institute;
6conforming provisions relating to the agreement by the
7Board of Governors and the not-for-profit corporation for
8the use of facilities on the campus of the University of
9South Florida; specifying that the not-for-profit
10corporation and its subsidiaries shall act as
11instrumentalities of the state for purposes of sovereign
12immunity; providing exceptions; authorizing the use of
13land, facilities, and personnel for teaching and research
14programs conducted by state universities; revising
15provisions relating to the control and sharing of certain
16income; providing a definition; amending s. 458.3145,
17F.S.; authorizing the issuance of a medical faculty
18certificate without examination to certain faculty at the
19H. Lee Moffitt Cancer Center and Research Institute;
20providing an effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Section 1004.43, Florida Statutes, is amended
25to read:
26     1004.43  H. Lee Moffitt Cancer Center and Research
27Institute.--There is established the H. Lee Moffitt Cancer
28Center and Research Institute, a statewide resource for basic
29and clinical research and multidisciplinary approaches to
30patient care at the University of South Florida.
31     (1)  The Board of Governors State Board of Education shall
32enter into an agreement for the utilization of the facilities on
33the campus of the University of South Florida to be known as the
34H. Lee Moffitt Cancer Center and Research Institute, including
35all furnishings, equipment, and other chattels used in the
36operation of said facilities, with a Florida not-for-profit
37corporation organized solely for the purpose of governing and
38operating the H. Lee Moffitt Cancer Center and Research
39Institute. The This not-for-profit corporation, acting as an
40instrumentality of the State of Florida, shall govern and
41operate the H. Lee Moffitt Cancer Center and Research Institute
42in accordance with the terms of the agreement between the Board
43of Governors and the not-for-profit corporation. The not-for-
44profit corporation may, with the prior approval of the Board of
45Governors, create either for-profit or not-for-profit corporate
46subsidiaries, or both, to fulfill its mission. The not-for-
47profit corporation and any authorized and approved subsidiary
48shall be corporations primarily acting as instrumentalities of
49the state, pursuant to s. 768.28(2), for purposes of sovereign
50immunity. However, sovereign immunity shall not apply to claims
51for bodily injury or death made against any person or entity
52that is a licensed health care provider acting within the course
53and scope of any agency relationship with a for-profit
54subsidiary where such bodily injury or death is legally caused
55by treatment or therapy, except when such treatment or therapy
56is undertaken pursuant to a research study conducted with the
57written informed consent of the patient and as otherwise
58required by state and federal law governing human experimental
59treatment or therapy. For-profit subsidiaries of the not-for-
60profit corporation may not compete with for-profit health care
61providers in the delivery of radiation therapy services to
62patients. The not-for-profit corporation and its subsidiaries
63are authorized to receive, hold, invest, and administer property
64and any moneys received from private, local, state, and federal
65sources, as well as technical and professional income generated
66or derived from practice activities of the institute, for the
67benefit of the institute and the fulfillment of its mission. The
68affairs of the corporation shall be managed by a board of
69directors who shall serve without compensation. The President of
70the University of South Florida and the chair of the Board of
71Governors, or his or her designee, shall be directors of the
72not-for-profit corporation, together with 5 representatives of
73the state universities and no more than 14 nor fewer than 10
74directors who are not medical doctors or state employees. Each
75director shall have only one vote, shall serve a term of 3
76years, and may be reelected to the board. Other than the
77President of the University of South Florida and the chair of
78the Board of Governors, directors shall be elected by a majority
79vote of the board. The chair of the board of directors shall be
80selected by majority vote of the directors.
81     (2)  The Board of Governors shall provide in the agreement
82with the not-for-profit corporation for the following:
83     (a)  Approval of the articles of incorporation of the not-
84for-profit corporation by the Board of Governors.
85     (b)  Approval of the articles of incorporation of any not-
86for-profit corporate subsidiary created by the not-for-profit
87corporation.
88     (c)  Utilization of lands, facilities, and personnel by the
89not-for-profit corporation and its subsidiaries for research,
90education, treatment, prevention, and the early detection of
91cancer and for mutually approved teaching and research programs
92conducted by the state universities University of South Florida
93or other accredited medical schools or research institutes.
94     (d)  Preparation of an annual financial audit of the not-
95for-profit corporation's accounts and records and the accounts
96and records of any subsidiaries to be conducted by an
97independent certified public accountant. The annual audit report
98shall include a management letter, as defined in s. 11.45, and
99shall be submitted to the Auditor General and the Board of
100Governors. The Board of Governors, the Auditor General, and the
101Office of Program Policy Analysis and Government Accountability
102shall have the authority to require and receive from the not-
103for-profit corporation and any subsidiaries or from their
104independent auditor any detail or supplemental data relative to
105the operation of the not-for-profit corporation or subsidiary.
106     (e)  Provision by the not-for-profit corporation and its
107subsidiaries of equal employment opportunities to all persons
108regardless of race, color, religion, sex, age, or national
109origin.
110     (3)  The Board of Governors is authorized to secure
111comprehensive general liability protection, including
112professional liability protection, for the not-for-profit
113corporation and its subsidiaries pursuant to s. 1004.24. The
114not-for-profit corporation and its subsidiaries shall be exempt
115from any participation in any property insurance trust fund
116established by law, including any property insurance trust fund
117established pursuant to chapter 284, so long as the not-for-
118profit corporation and its subsidiaries maintain property
119insurance protection with comparable or greater coverage limits.
120     (4)  In the event that the agreement between the not-for-
121profit corporation and the Board of Governors is terminated for
122any reason, the Board of Governors shall resume governance and
123operation of such facilities.
124     (5)  The institute shall be administered by a chief
125executive officer who shall serve at the pleasure of the board
126of directors of the not-for-profit corporation and who shall
127have the following powers and duties subject to the approval of
128the board of directors:
129     (a)  The chief executive officer shall establish programs
130which fulfill the mission of the institute in research,
131education, treatment, prevention, and the early detection of
132cancer; however, the chief executive officer shall not establish
133academic programs for which academic credit is awarded and which
134terminate in the conference of a degree without prior approval
135of the Board of Governors.
136     (b)  The chief executive officer shall have control over
137the budget and the dollars appropriated or donated to the
138institute from private, local, state, and federal sources, as
139well as technical and professional income generated or derived
140from practice activities of the not-for-profit corporation and
141its subsidiaries institute. However, professional income
142generated by state university faculty from practice activities
143at the institute shall be shared between the institute and the
144university as determined by the chief executive officer and the
145appropriate university dean or vice president. Professional
146income generated by institute members from practice activities
147may be shared between the not-for-profit corporation and its
148subsidiaries as determined by the chief executive officer. As
149used in this paragraph, the term "institute member" means an
150individual employed by the not-for-profit corporation or a
151subsidiary as a clinical or scientific faculty member.
152     (c)  The chief executive officer shall appoint members to
153carry out the research, patient care, and educational activities
154of the institute and determine compensation, benefits, and terms
155of service. Members of the institute shall be eligible to hold
156concurrent appointments at affiliated academic institutions.
157State university faculty shall be eligible to hold concurrent
158appointments at the institute.
159     (d)  The chief executive officer shall have control over
160the use and assignment of space and equipment within the
161facilities.
162     (e)  The chief executive officer shall have the power to
163create the administrative structure necessary to carry out the
164mission of the institute.
165     (f)  The chief executive officer shall have a reporting
166relationship to the Board of Governors or its designee.
167     (g)  The chief executive officer shall provide a copy of
168the institute's annual report to the Governor and Cabinet, the
169President of the Senate, the Speaker of the House of
170Representatives, and the chair of the Board of Governors.
171     (6)  The board of directors of the not-for-profit
172corporation shall create a council of scientific advisers to the
173chief executive officer comprised of leading researchers,
174physicians, and scientists. This council shall review programs
175and recommend research priorities and initiatives so as to
176maximize the state's investment in the institute. The council
177shall be appointed by the board of directors of the not-for-
178profit corporation. Each member of the council shall be
179appointed to serve a 2-year term and may be reappointed to the
180council.
181     (7)  In carrying out the provisions of this section, the
182not-for-profit corporation and its subsidiaries are not
183"agencies" within the meaning of s. 20.03(11).
184     (8)(a)  Records of the not-for-profit corporation and of
185its subsidiaries are public records unless made confidential or
186exempt by law.
187     (b)  Proprietary confidential business information is
188confidential and exempt from the provisions of s. 119.07(1) and
189s. 24(a), Art. I of the State Constitution. However, the Auditor
190General, the Office of Program Policy Analysis and Government
191Accountability, and the Board of Governors, pursuant to their
192oversight and auditing functions, must be given access to all
193proprietary confidential business information upon request and
194without subpoena and must maintain the confidentiality of
195information so received. As used in this paragraph, the term
196"proprietary confidential business information" means
197information, regardless of its form or characteristics, which is
198owned or controlled by the not-for-profit corporation or its
199subsidiaries; is intended to be and is treated by the not-for-
200profit corporation or its subsidiaries as private and the
201disclosure of which would harm the business operations of the
202not-for-profit corporation or its subsidiaries; has not been
203intentionally disclosed by the corporation or its subsidiaries
204unless pursuant to law, an order of a court or administrative
205body, a legislative proceeding pursuant to s. 5, Art. III of the
206State Constitution, or a private agreement that provides that
207the information may be released to the public; and which is
208information concerning:
209     1.  Internal auditing controls and reports of internal
210auditors;
211     2.  Matters reasonably encompassed in privileged attorney-
212client communications;
213     3.  Contracts for managed-care arrangements, including
214preferred provider organization contracts, health maintenance
215organization contracts, and exclusive provider organization
216contracts, and any documents directly relating to the
217negotiation, performance, and implementation of any such
218contracts for managed-care arrangements;
219     4.  Bids or other contractual data, banking records, and
220credit agreements the disclosure of which would impair the
221efforts of the not-for-profit corporation or its subsidiaries to
222contract for goods or services on favorable terms;
223     5.  Information relating to private contractual data, the
224disclosure of which would impair the competitive interest of the
225provider of the information;
226     6.  Corporate officer and employee personnel information;
227     7.  Information relating to the proceedings and records of
228credentialing panels and committees and of the governing board
229of the not-for-profit corporation or its subsidiaries relating
230to credentialing;
231     8.  Minutes of meetings of the governing board of the not-
232for-profit corporation and its subsidiaries, except minutes of
233meetings open to the public pursuant to subsection (9);
234     9.  Information that reveals plans for marketing services
235that the corporation or its subsidiaries reasonably expect to be
236provided by competitors;
237     10.  Trade secrets as defined in s. 688.002, including:
238     a.  Information relating to methods of manufacture or
239production, potential trade secrets, potentially patentable
240materials, or proprietary information received, generated,
241ascertained, or discovered during the course of research
242conducted by the not-for-profit corporation or its subsidiaries;
243and
244     b.  Reimbursement methodologies or rates;
245     11.  The identity of donors or prospective donors of
246property who wish to remain anonymous or any information
247identifying such donors or prospective donors. The anonymity of
248these donors or prospective donors must be maintained in the
249auditor's report; or
250     12.  Any information received by the not-for-profit
251corporation or its subsidiaries from an agency in this or
252another state or nation or the Federal Government which is
253otherwise exempt or confidential pursuant to the laws of this or
254another state or nation or pursuant to federal law.
255
256As used in this paragraph, the term "managed care" means systems
257or techniques generally used by third-party payors or their
258agents to affect access to and control payment for health care
259services. Managed-care techniques most often include one or more
260of the following: prior, concurrent, and retrospective review of
261the medical necessity and appropriateness of services or site of
262services; contracts with selected health care providers;
263financial incentives or disincentives related to the use of
264specific providers, services, or service sites; controlled
265access to and coordination of services by a case manager; and
266payor efforts to identify treatment alternatives and modify
267benefit restrictions for high-cost patient care.
268     (c)  Subparagraphs 10. and 12. of paragraph (b) are subject
269to the Open Government Sunset Review Act in accordance with s.
270119.15 and shall stand repealed on October 2, 2010, unless
271reviewed and saved from repeal through reenactment by the
272Legislature.
273     (9)  Meetings of the governing board of the not-for-profit
274corporation and meetings of the subsidiaries of the not-for-
275profit corporation at which the expenditure of dollars
276appropriated to the not-for-profit corporation by the state are
277discussed or reported must remain open to the public in
278accordance with s. 286.011 and s. 24(b), Art. I of the State
279Constitution, unless made confidential or exempt by law. Other
280meetings of the governing board of the not-for-profit
281corporation and of the subsidiaries of the not-for-profit
282corporation are exempt from s. 286.011 and s. 24(b), Art. I of
283the State Constitution.
284     (10)  In addition to the continuing appropriation to the
285institute provided in s. 210.20(2), any appropriation to the
286institute provided in a general appropriations act shall be paid
287directly to the board of directors of the not-for-profit
288corporation by warrant drawn by the Chief Financial Officer from
289the State Treasury.
290     Section 2.  Paragraph (i) of subsection (1) of section
291458.3145, Florida Statutes, is amended to read:
292     458.3145  Medical faculty certificate.--
293     (1)  A medical faculty certificate may be issued without
294examination to an individual who:
295     (i)  Has been offered and has accepted a full-time faculty
296appointment to teach in a program of medicine at:
297     1.  The University of Florida,
298     2.  The University of Miami,
299     3.  The University of South Florida,
300     4.  The Florida State University,
301     5.  The Florida International University,
302     6.  The University of Central Florida, or
303     7.  The Mayo Medical School at the Mayo Clinic in
304Jacksonville, Florida, or
305     8.  The H. Lee Moffitt Cancer Center and Research
306Institute.
307     Section 3.  This act shall take effect July 1, 2009.


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