| 1 | A bill to be entitled |
| 2 | An act relating to the H. Lee Moffitt Cancer Center and |
| 3 | Research Institute; amending s. 1004.43, F.S.; revising |
| 4 | provisions relating to the establishment of the institute |
| 5 | and specifying primary responsibilities of the institute; |
| 6 | conforming provisions relating to the agreement by the |
| 7 | Board of Governors and the not-for-profit corporation for |
| 8 | the use of facilities on the campus of the University of |
| 9 | South Florida; specifying that the not-for-profit |
| 10 | corporation and its not-for-profit subsidiaries shall |
| 11 | conclusively act as instrumentalities of the state for |
| 12 | purposes of sovereign immunity; authorizing the use of |
| 13 | land, facilities, and personnel for teaching and research |
| 14 | programs conducted by state universities; revising |
| 15 | provisions relating to the control and sharing of certain |
| 16 | income; providing an effective date. |
| 17 |
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| 18 | Be It Enacted by the Legislature of the State of Florida: |
| 19 |
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| 20 | Section 1. Section 1004.43, Florida Statutes, is amended |
| 21 | to read: |
| 22 | 1004.43 H. Lee Moffitt Cancer Center and Research |
| 23 | Institute.-There is established the H. Lee Moffitt Cancer Center |
| 24 | and Research Institute, a statewide resource for basic and |
| 25 | clinical research and multidisciplinary approaches to patient |
| 26 | care at the University of South Florida. |
| 27 | (1) The Board of Governors State Board of Education shall |
| 28 | enter into an agreement for the utilization of the facilities on |
| 29 | the campus of the University of South Florida to be known as the |
| 30 | H. Lee Moffitt Cancer Center and Research Institute, including |
| 31 | all furnishings, equipment, and other chattels used in the |
| 32 | operation of such said facilities, with a Florida not-for-profit |
| 33 | corporation organized solely for the purpose of governing and |
| 34 | operating the H. Lee Moffitt Cancer Center and Research |
| 35 | Institute. This not-for-profit corporation, acting as an |
| 36 | instrumentality of the State of Florida, shall govern and |
| 37 | operate the H. Lee Moffitt Cancer Center and Research Institute |
| 38 | in accordance with the terms of the agreement between the Board |
| 39 | of Governors and the not-for-profit corporation. The not-for- |
| 40 | profit corporation may, with the prior approval of the Board of |
| 41 | Governors, create either for-profit or not-for-profit corporate |
| 42 | subsidiaries, or both, to fulfill its mission. The not-for- |
| 43 | profit corporation and any approved not-for-profit subsidiary |
| 44 | shall be conclusively deemed corporations primarily acting as |
| 45 | instrumentalities of the state, pursuant to s. 768.28(2), for |
| 46 | purposes of sovereign immunity. For-profit subsidiaries of the |
| 47 | not-for-profit corporation may not compete with for-profit |
| 48 | health care providers in the delivery of radiation therapy |
| 49 | services to patients. The not-for-profit corporation and its |
| 50 | subsidiaries are authorized to receive, hold, invest, and |
| 51 | administer property and any moneys received from private, local, |
| 52 | state, and federal sources, as well as technical and |
| 53 | professional income generated or derived from practice |
| 54 | activities of the institute, for the benefit of the institute |
| 55 | and the fulfillment of its mission. The affairs of the |
| 56 | corporation shall be managed by a board of directors who shall |
| 57 | serve without compensation. The President of the University of |
| 58 | South Florida and the chair of the Board of Governors, or his or |
| 59 | her designee, shall be directors of the not-for-profit |
| 60 | corporation, together with 5 representatives of the state |
| 61 | universities and no more than 14 nor fewer than 10 directors who |
| 62 | are not medical doctors or state employees. Each director shall |
| 63 | have only one vote, shall serve a term of 3 years, and may be |
| 64 | reelected to the board. Other than the President of the |
| 65 | University of South Florida and the chair of the Board of |
| 66 | Governors, directors shall be elected by a majority vote of the |
| 67 | board. The chair of the board of directors shall be selected by |
| 68 | majority vote of the directors. |
| 69 | (2) The Board of Governors shall provide in the agreement |
| 70 | with the not-for-profit corporation for the following: |
| 71 | (a) Approval of the articles of incorporation of the not- |
| 72 | for-profit corporation by the Board of Governors. |
| 73 | (b) Approval of the articles of incorporation of any not- |
| 74 | for-profit corporate subsidiary created by the not-for-profit |
| 75 | corporation. |
| 76 | (c) Utilization of lands, facilities, and personnel by the |
| 77 | not-for-profit corporation and its subsidiaries for research, |
| 78 | education, treatment, prevention, and the early detection of |
| 79 | cancer and for mutually approved teaching and research programs |
| 80 | conducted by the state universities University of South Florida |
| 81 | or other accredited medical schools or research institutes. |
| 82 | (d) Preparation of an annual financial audit of the not- |
| 83 | for-profit corporation's accounts and records and the accounts |
| 84 | and records of any subsidiaries to be conducted by an |
| 85 | independent certified public accountant. The annual audit report |
| 86 | shall include a management letter, as defined in s. 11.45, and |
| 87 | shall be submitted to the Auditor General and the Board of |
| 88 | Governors. The Board of Governors, the Auditor General, and the |
| 89 | Office of Program Policy Analysis and Government Accountability |
| 90 | shall have the authority to require and receive from the not- |
| 91 | for-profit corporation and any subsidiaries or from their |
| 92 | independent auditor any detail or supplemental data relative to |
| 93 | the operation of the not-for-profit corporation or subsidiary. |
| 94 | (e) Provision by the not-for-profit corporation and its |
| 95 | subsidiaries of equal employment opportunities to all persons |
| 96 | regardless of race, color, religion, sex, age, or national |
| 97 | origin. |
| 98 | (3) The Board of Governors is authorized to secure |
| 99 | comprehensive general liability protection, including |
| 100 | professional liability protection, for the not-for-profit |
| 101 | corporation and its subsidiaries pursuant to s. 1004.24. The |
| 102 | not-for-profit corporation and its subsidiaries shall be exempt |
| 103 | from any participation in any property insurance trust fund |
| 104 | established by law, including any property insurance trust fund |
| 105 | established pursuant to chapter 284, so long as the not-for- |
| 106 | profit corporation and its subsidiaries maintain property |
| 107 | insurance protection with comparable or greater coverage limits. |
| 108 | (4) In the event that the agreement between the not-for- |
| 109 | profit corporation and the Board of Governors is terminated for |
| 110 | any reason, the Board of Governors shall resume governance and |
| 111 | operation of such facilities. |
| 112 | (5) The institute shall be administered by a chief |
| 113 | executive officer who shall serve at the pleasure of the board |
| 114 | of directors of the not-for-profit corporation and who shall |
| 115 | have the following powers and duties subject to the approval of |
| 116 | the board of directors: |
| 117 | (a) The chief executive officer shall establish programs |
| 118 | which fulfill the mission of the institute in research, |
| 119 | education, treatment, prevention, and the early detection of |
| 120 | cancer; however, the chief executive officer shall not establish |
| 121 | academic programs for which academic credit is awarded and which |
| 122 | terminate in the conference of a degree without prior approval |
| 123 | of the Board of Governors. |
| 124 | (b) The chief executive officer shall have control over |
| 125 | the budget and the dollars appropriated or donated to the |
| 126 | institute from private, local, state, and federal sources, as |
| 127 | well as technical and professional income generated or derived |
| 128 | from practice activities of the not-for-profit corporation and |
| 129 | its subsidiaries institute. Technical and professional income |
| 130 | generated from practice activities may be shared between the |
| 131 | not-for-profit corporation and its subsidiaries as determined by |
| 132 | the chief executive officer. However, professional income |
| 133 | generated by state university employees faculty from practice |
| 134 | activities at the not-for-profit corporation and its |
| 135 | subsidiaries institute shall be shared between the institute and |
| 136 | the university and the not-for-profit corporation and its |
| 137 | subsidiaries only as determined by the chief executive officer |
| 138 | and the appropriate university dean or vice president. |
| 139 | (c) The chief executive officer shall appoint members to |
| 140 | carry out the research, patient care, and educational activities |
| 141 | of the institute and determine compensation, benefits, and terms |
| 142 | of service. Members of the institute shall be eligible to hold |
| 143 | concurrent appointments at affiliated academic institutions. |
| 144 | State university faculty shall be eligible to hold concurrent |
| 145 | appointments at the institute. |
| 146 | (d) The chief executive officer shall have control over |
| 147 | the use and assignment of space and equipment within the |
| 148 | facilities. |
| 149 | (e) The chief executive officer shall have the power to |
| 150 | create the administrative structure necessary to carry out the |
| 151 | mission of the institute. |
| 152 | (f) The chief executive officer shall have a reporting |
| 153 | relationship to the Board of Governors or its designee. |
| 154 | (g) The chief executive officer shall provide a copy of |
| 155 | the institute's annual report to the Governor and Cabinet, the |
| 156 | President of the Senate, the Speaker of the House of |
| 157 | Representatives, and the chair of the Board of Governors. |
| 158 | (6) The board of directors of the not-for-profit |
| 159 | corporation shall create a council of scientific advisers to the |
| 160 | chief executive officer comprised of leading researchers, |
| 161 | physicians, and scientists. This council shall review programs |
| 162 | and recommend research priorities and initiatives so as to |
| 163 | maximize the state's investment in the institute. The council |
| 164 | shall be appointed by the board of directors of the not-for- |
| 165 | profit corporation. Each member of the council shall be |
| 166 | appointed to serve a 2-year term and may be reappointed to the |
| 167 | council. |
| 168 | (7) In carrying out the provisions of this section, the |
| 169 | not-for-profit corporation and its subsidiaries are not |
| 170 | "agencies" within the meaning of s. 20.03(11). |
| 171 | (8)(a) Records of the not-for-profit corporation and of |
| 172 | its subsidiaries are public records unless made confidential or |
| 173 | exempt by law. |
| 174 | (b) Proprietary confidential business information is |
| 175 | confidential and exempt from the provisions of s. 119.07(1) and |
| 176 | s. 24(a), Art. I of the State Constitution. However, the Auditor |
| 177 | General, the Office of Program Policy Analysis and Government |
| 178 | Accountability, and the Board of Governors, pursuant to their |
| 179 | oversight and auditing functions, must be given access to all |
| 180 | proprietary confidential business information upon request and |
| 181 | without subpoena and must maintain the confidentiality of |
| 182 | information so received. As used in this paragraph, the term |
| 183 | "proprietary confidential business information" means |
| 184 | information, regardless of its form or characteristics, which is |
| 185 | owned or controlled by the not-for-profit corporation or its |
| 186 | subsidiaries; is intended to be and is treated by the not-for- |
| 187 | profit corporation or its subsidiaries as private and the |
| 188 | disclosure of which would harm the business operations of the |
| 189 | not-for-profit corporation or its subsidiaries; has not been |
| 190 | intentionally disclosed by the corporation or its subsidiaries |
| 191 | unless pursuant to law, an order of a court or administrative |
| 192 | body, a legislative proceeding pursuant to s. 5, Art. III of the |
| 193 | State Constitution, or a private agreement that provides that |
| 194 | the information may be released to the public; and which is |
| 195 | information concerning: |
| 196 | 1. Internal auditing controls and reports of internal |
| 197 | auditors; |
| 198 | 2. Matters reasonably encompassed in privileged attorney- |
| 199 | client communications; |
| 200 | 3. Contracts for managed-care arrangements, including |
| 201 | preferred provider organization contracts, health maintenance |
| 202 | organization contracts, and exclusive provider organization |
| 203 | contracts, and any documents directly relating to the |
| 204 | negotiation, performance, and implementation of any such |
| 205 | contracts for managed-care arrangements; |
| 206 | 4. Bids or other contractual data, banking records, and |
| 207 | credit agreements the disclosure of which would impair the |
| 208 | efforts of the not-for-profit corporation or its subsidiaries to |
| 209 | contract for goods or services on favorable terms; |
| 210 | 5. Information relating to private contractual data, the |
| 211 | disclosure of which would impair the competitive interest of the |
| 212 | provider of the information; |
| 213 | 6. Corporate officer and employee personnel information; |
| 214 | 7. Information relating to the proceedings and records of |
| 215 | credentialing panels and committees and of the governing board |
| 216 | of the not-for-profit corporation or its subsidiaries relating |
| 217 | to credentialing; |
| 218 | 8. Minutes of meetings of the governing board of the not- |
| 219 | for-profit corporation and its subsidiaries, except minutes of |
| 220 | meetings open to the public pursuant to subsection (9); |
| 221 | 9. Information that reveals plans for marketing services |
| 222 | that the corporation or its subsidiaries reasonably expect to be |
| 223 | provided by competitors; |
| 224 | 10. Trade secrets as defined in s. 688.002, including: |
| 225 | a. Information relating to methods of manufacture or |
| 226 | production, potential trade secrets, potentially patentable |
| 227 | materials, or proprietary information received, generated, |
| 228 | ascertained, or discovered during the course of research |
| 229 | conducted by the not-for-profit corporation or its subsidiaries; |
| 230 | and |
| 231 | b. Reimbursement methodologies or rates; |
| 232 | 11. The identity of donors or prospective donors of |
| 233 | property who wish to remain anonymous or any information |
| 234 | identifying such donors or prospective donors. The anonymity of |
| 235 | these donors or prospective donors must be maintained in the |
| 236 | auditor's report; or |
| 237 | 12. Any information received by the not-for-profit |
| 238 | corporation or its subsidiaries from an agency in this or |
| 239 | another state or nation or the Federal Government which is |
| 240 | otherwise exempt or confidential pursuant to the laws of this or |
| 241 | another state or nation or pursuant to federal law. |
| 242 |
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| 243 | As used in this paragraph, the term "managed care" means systems |
| 244 | or techniques generally used by third-party payors or their |
| 245 | agents to affect access to and control payment for health care |
| 246 | services. Managed-care techniques most often include one or more |
| 247 | of the following: prior, concurrent, and retrospective review of |
| 248 | the medical necessity and appropriateness of services or site of |
| 249 | services; contracts with selected health care providers; |
| 250 | financial incentives or disincentives related to the use of |
| 251 | specific providers, services, or service sites; controlled |
| 252 | access to and coordination of services by a case manager; and |
| 253 | payor efforts to identify treatment alternatives and modify |
| 254 | benefit restrictions for high-cost patient care. |
| 255 | (c) Subparagraphs 10. and 12. of paragraph (b) are subject |
| 256 | to the Open Government Sunset Review Act in accordance with s. |
| 257 | 119.15 and shall stand repealed on October 2, 2010, unless |
| 258 | reviewed and saved from repeal through reenactment by the |
| 259 | Legislature. |
| 260 | (9) Meetings of the governing board of the not-for-profit |
| 261 | corporation and meetings of the subsidiaries of the not-for- |
| 262 | profit corporation at which the expenditure of dollars |
| 263 | appropriated to the not-for-profit corporation by the state are |
| 264 | discussed or reported must remain open to the public in |
| 265 | accordance with s. 286.011 and s. 24(b), Art. I of the State |
| 266 | Constitution, unless made confidential or exempt by law. Other |
| 267 | meetings of the governing board of the not-for-profit |
| 268 | corporation and of the subsidiaries of the not-for-profit |
| 269 | corporation are exempt from s. 286.011 and s. 24(b), Art. I of |
| 270 | the State Constitution. |
| 271 | (10) In addition to the continuing appropriation to the |
| 272 | institute provided in s. 210.20(2), any appropriation to the |
| 273 | institute provided in a general appropriations act shall be paid |
| 274 | directly to the board of directors of the not-for-profit |
| 275 | corporation by warrant drawn by the Chief Financial Officer from |
| 276 | the State Treasury. |
| 277 | Section 2. This act shall take effect July 1, 2010. |