HB 1019

1	A bill to be entitled
2	An act relating to foster care providers; amending s.
3	409.1671, F.S.; decreasing the limits of liability and
4	requisite insurance coverage for lead community-based
5	providers and subcontractors; providing immunity from
6	liability for the Department of Children and Family
7	Services for acts or omissions of a community-based
8	provider or subcontractor, or the officers, agents, or
9	employees thereof; providing an effective date.
10
11	WHEREAS, lead community-based providers were established to
12	provide foster care and related services, and
13	WHEREAS, the goal of establishing these providers was to
14	strengthen the support and commitment of communities to the
15	reunification of families and the care of children and families
16	and to increase the efficiency and accountability of providers,
17	and
18	WHEREAS, lead community-based providers provide services
19	identical to those previously provided by the Department of
20	Children and Family Services, which was protected when
21	delivering those services by the state's sovereign immunity
22	limits, and
23	WHEREAS, the costs of litigation and attorney's fees
24	diminishes the resources available to the children and families
25	served by lead community-based providers, and
26	WHEREAS, the Legislature finds that the limits of liability
27	for lead community-based providers should be reviewed, NOW,
28	THEREFORE,
29
30	Be It Enacted by the Legislature of the State of Florida:
31
32	Section 1.  Paragraphs (f), (h), (j), and (l) of subsection
33	(1) and paragraph (a) of subsection (2) of section 409.1671,
34	Florida Statutes, are amended to read:
35	409.1671  Foster care and related services; outsourcing.-
36	(1)
37	(f)1.  The Legislature finds that the state has
38	traditionally provided foster care services to children who have
39	been the responsibility of the state. As such, foster children
40	have not had the right to recover for injuries beyond the
41	limitations specified in s. 768.28. The Legislature has
42	determined that foster care and related services need to be
43	outsourced pursuant to this section and that the provision of
44	such services is of paramount importance to the state. The
45	purpose for such outsourcing is to increase the level of safety,
46	security, and stability of children who are or become the
47	responsibility of the state. One of the components necessary to
48	secure a safe and stable environment for such children is that
49	private providers maintain liability insurance. As such,
50	insurance needs to be available and remain available to
51	nongovernmental foster care and related services providers
52	without the resources of such providers being significantly
53	reduced by the cost of maintaining such insurance. To ensure
54	that these resources are not significantly reduced, specified
55	limits of liability are necessary for eligible lead community-
56	based providers and subcontractors engaged in the provision of
57	services previously performed by the Department of Children and
58	Family Services.
59	2.  The Legislature further finds that, by requiring the
60	following minimum levels of insurance, children in outsourced
61	foster care and related services will gain increased protection
62	and rights of recovery in the event of injury than provided for
63	in s. 768.28.
64	(h)  Other than an entity to which s. 768.28 applies, any
65	eligible lead community-based provider, as defined in paragraph
66	(e), or its employees or officers, except as otherwise provided
67	in paragraph (i), must, as a part of its contract, obtain
68	general liability coverage for a minimum of $500,000 $1 million
69	per claim with a policy limit aggregate of/ $1.5 $3 million per
70	incident in general liability insurance coverage. The eligible
71	lead community-based provider must also require that staff who
72	transport client children and families in their personal
73	automobiles in order to carry out their job responsibilities
74	obtain minimum bodily injury liability insurance in the amount
75	of $100,000 per claim, $300,000 per incident, on their personal
76	automobiles. In lieu of personal motor vehicle insurance, the
77	lead community-based provider's casualty, liability, or motor
78	vehicle insurance carrier may provide nonowned automobile
79	liability coverage. This insurance provides liability insurance
80	for automobiles that the provider uses in connection with the
81	provider's business but does not own, lease, rent, or borrow.
82	This coverage includes automobiles owned by the employees of the
83	provider or a member of the employee's household but only while
84	the automobiles are used in connection with the provider's
85	business. The nonowned automobile coverage for the provider
86	applies as excess coverage over any other collectible insurance.
87	The personal automobile policy for the employee of the provider
88	shall be primary insurance, and the nonowned automobile coverage
89	of the provider acts as excess insurance to the primary
90	insurance. The provider shall provide a minimum limit of $1
91	million in nonowned automobile coverage. In any tort action
92	brought against such an eligible lead community-based provider
93	or employee, net economic damages shall be limited to $500,000
94	$1 million per liability claim, $1.5 million per liability
95	incident, and $100,000 per automobile claim, including, but not
96	limited to, past and future medical expenses, wage loss, and
97	loss of earning capacity, offset by any collateral source
98	payment paid or payable. In any tort action brought against an
99	eligible lead community-based provider, the total economic
100	damages recoverable by all claimants shall be limited to no more
101	than $2 million against all lead agencies and subcontractors
102	involved in the same incident or occurrence, when totaled
103	together. In any tort action brought against such an eligible
104	lead community-based provider, noneconomic damages shall be
105	limited to $200,000 per claim and $500,000 per incident. In any
106	tort action brought against an eligible lead community-based
107	provider, the total noneconomic damages recoverable by all
108	claimants shall be limited to no more than $1 million against
109	all subcontractors and lead agencies involved in the same
110	incident or occurrence, when totaled together. A claims bill may
111	be brought on behalf of a claimant pursuant to s. 768.28 for any
112	amount exceeding the limits specified in this paragraph. Any
113	offset of collateral source payments made as of the date of the
114	settlement or judgment shall be in accordance with s. 768.76.
115	The lead community-based provider is shall not be liable in tort
116	for the acts or omissions of its subcontractors or the officers,
117	agents, or employees of its subcontractors.
118	(j)  Any subcontractor of an eligible lead community-based
119	provider, as defined in paragraph (e), which is a direct
120	provider of foster care and related services to children and
121	families, and its employees or officers, except as otherwise
122	provided in paragraph (i), must, as a part of its contract,
123	obtain general liability insurance coverage for a minimum of
124	$500,000 $1 million per claim with a policy limit aggregate of/
125	$1.5 $3 million per incident in general liability insurance
126	coverage. The subcontractor of an eligible lead community-based
127	provider must also require that staff who transport client
128	children and families in their personal automobiles in order to
129	carry out their job responsibilities obtain minimum bodily
130	injury liability insurance in the amount of $100,000 per claim,
131	$300,000 per incident, on their personal automobiles. In lieu of
132	personal motor vehicle insurance, the subcontractor's casualty,
133	liability, or motor vehicle insurance carrier may provide
134	nonowned automobile liability coverage. This insurance provides
135	liability insurance for automobiles that the subcontractor uses
136	in connection with the subcontractor's business but does not
137	own, lease, rent, or borrow. This coverage includes automobiles
138	owned by the employees of the subcontractor or a member of the
139	employee's household but only while the automobiles are used in
140	connection with the subcontractor's business. The nonowned
141	automobile coverage for the subcontractor applies as excess
142	coverage over any other collectible insurance. The personal
143	automobile policy for the employee of the subcontractor shall be
144	primary insurance, and the nonowned automobile coverage of the
145	subcontractor acts as excess insurance to the primary insurance.
146	The subcontractor shall provide a minimum limit of $1 million in
147	nonowned automobile coverage. In any tort action brought against
148	such subcontractor or employee, net economic damages shall be
149	limited to $500,000 $1 million per liability claim, $1.5 million
150	per liability incident, and $100,000 per automobile claim,
151	including, but not limited to, past and future medical expenses,
152	wage loss, and loss of earning capacity, offset by any
153	collateral source payment paid or payable. In any tort action
154	brought against such subcontractor or employee, the total
155	economic damages recoverable by all claimants shall be limited
156	to no more than $2 million against all subcontractors and lead
157	agencies involved in the same incident or occurrence, when
158	totaled together. In any tort action brought against such
159	subcontractor, noneconomic damages shall be limited to $200,000
160	per claim and $500,000 per incident. In any tort action brought
161	against such subcontractor or employee, the total noneconomic
162	damages recoverable by all claimants shall be limited to no more
163	than $1 million against all subcontractors and lead agencies
164	involved in the same incident or occurrence, when totaled
165	together. A claims bill may be brought on behalf of a claimant
166	pursuant to s. 768.28 for any amount exceeding the limits
167	specified in this paragraph. Any offset of collateral source
168	payments made as of the date of the settlement or judgment shall
169	be in accordance with s. 768.76.
170	(l)  The Legislature is cognizant of the increasing costs
171	of goods and services each year and recognizes that fixing a set
172	amount of compensation actually has the effect of a reduction in
173	compensation each year. Accordingly, the conditional limitations
174	on damages in this section shall be increased at the rate of 5
175	percent each year, prorated from the effective date of this
176	paragraph to the date at which damages subject to such
177	limitations are awarded by final judgment or settlement.
178	(2)(a)  The department may contract for the delivery,
179	administration, or management of protective services, the
180	services specified in subsection (1) relating to foster care,
181	and other related services or programs, as appropriate. The
182	department shall use diligent efforts to ensure that retain
183	responsibility for the quality of contracted services and
184	programs and shall ensure that services are of high quality and
185	delivered in accordance with applicable federal and state
186	statutes and regulations. However, the department is not liable
187	in tort for the acts or omissions of an eligible lead community-
188	based provider or the officers, agents, or employees of the
189	provider, nor is the department liable in tort for the acts or
190	omissions of the subcontractors of eligible lead community-based
191	providers or the officers, agents, or employees of its
192	subcontractors. The department may not require an eligible lead
193	community-based provider or its subcontractors to indemnify the
194	department for the department's own acts or omissions, nor may
195	the department require an eligible lead community-based provider
196	or its subcontractors to include the department as an additional
197	insured on any insurance policy. The department must adopt
198	written policies and procedures for monitoring the contract for
199	delivery of services by lead community-based providers. These
200	policies and procedures must, at a minimum, address the
201	evaluation of fiscal accountability and program operations,
202	including provider achievement of performance standards,
203	provider monitoring of subcontractors, and timely followup of
204	corrective actions for significant monitoring findings related
205	to providers and subcontractors. These policies and procedures
206	must also include provisions for reducing the duplication of the
207	department's program monitoring activities both internally and
208	with other agencies, to the extent possible. The department's
209	written procedures must ensure that the written findings,
210	conclusions, and recommendations from monitoring the contract
211	for services of lead community-based providers are communicated
212	to the director of the provider agency as expeditiously as
213	possible.
214	Section 2.  This act shall take effect July 1, 2011.

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