Florida Senate - 2011                                    SB 1500
       
       
       
       By Senator Latvala
       
       
       
       
       16-01017B-11                                          20111500__
    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 of
  171  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.