Florida Senate - 2024                              CS for SB 536
       
       
        
       By the Committee on Children, Families, and Elder Affairs; and
       Senator Garcia
       
       
       
       
       586-02176-24                                           2024536c1
    1                        A bill to be entitled                      
    2         An act relating to community-based child welfare
    3         agencies; amending s. 409.987, F.S.; revising
    4         requirements for contracts the Department of Children
    5         and Families has with community-based care lead
    6         agencies; revising requirements for an entity to serve
    7         as a lead agency; requiring lead agencies to ensure
    8         that board members participate in certain annual
    9         training; revising the definition of the term
   10         “conflict of interest”; defining the term “related
   11         party”; requiring the lead agency’s board of directors
   12         to disclose any known, actual, or potential conflicts
   13         of interest; prohibiting a lead agency from entering
   14         into a contract or being a party to a transaction that
   15         creates a conflict of interest; requiring a lead
   16         agency to competitively procure certain contracts;
   17         imposing civil penalties on lead agencies for
   18         undisclosed conflicts of interest; providing
   19         applicability; amending s. 409.988, F.S.; revising
   20         community-based care lead agency duties; amending s.
   21         409.991, F.S.; revising the definition of the term
   22         “core services funds”; deleting definitions; requiring
   23         that the allocation of core services funds be based on
   24         a three-tiered payment model; providing specifications
   25         for the payment model; requiring that reports be
   26         submitted annually to the Governor and the Legislature
   27         by a specific date; requiring that all funding for
   28         core services be based on the statutory methodology;
   29         amending s. 409.992, F.S.; revising requirements for
   30         lead agency practices in the procurement of
   31         commodities and contractual services; requiring the
   32         department to impose certain penalties for a lead
   33         agency’s noncompliance with applicable procurement
   34         law; requiring lead agencies to comply with
   35         established purchasing practices for the procurement
   36         of real property and professional services; requiring
   37         the department to retain all rights to and ownership
   38         of real property procured upon termination of
   39         contracts; requiring that certain funds be returned to
   40         the department; providing applicability of certain
   41         limitations on the salaries of community-based care
   42         lead agency administrative employees; amending s.
   43         409.994, F.S.; revising the conditions under which the
   44         department may petition a court for the appointment of
   45         a receiver for a community-based care lead agency;
   46         amending s. 409.996, F.S.; revising requirements for
   47         contracts between the department and lead agencies;
   48         revising the actions the department may take upon
   49         certain circumstances; making a technical change;
   50         providing duties to the department; providing an
   51         effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Subsections (3) and (4) and paragraphs (a) and
   56  (b) of subsection (7) of section 409.987, Florida Statutes, are
   57  amended to read:
   58         409.987 Lead agency procurement; boards; conflicts of
   59  interest.—
   60         (3) Notwithstanding s. 287.057, the department shall use 5
   61  year contracts with lead agencies. The 5-year contract must be
   62  reprocured at the end of each 5-year contract term. The contract
   63  may be extended at the discretion of the department for up to 1
   64  year, based on department needs.
   65         (4) In order to serve as a lead agency, an entity must:
   66         (a) Be organized as a Florida corporation or a governmental
   67  entity.
   68         (b) Be governed by a board of directors or a board
   69  committee composed of board members. Board members shall provide
   70  oversight and ensure accountability and transparency for the
   71  system of care. The board of directors shall provide fiduciary
   72  oversight to prevent conflicts of interest, promote
   73  accountability and transparency, and protect state and federal
   74  funding from misuse. The lead agency shall ensure that board
   75  members participate in annual training, as approved by the
   76  department, related to their responsibilities. The membership of
   77  the board of directors or board committee must be described in
   78  the bylaws or articles of incorporation of each lead agency,
   79  which must provide that at least 75 percent of the membership of
   80  the board of directors or board committee must be composed
   81  consist of persons residing in this state, and at least 51
   82  percent of the state residents on the board of directors must
   83  reside within the service area of the lead agency. However, for
   84  procurements of lead agency contracts initiated on or after July
   85  1, 2014:
   86         1. At least 75 percent of the membership of the board of
   87  directors must be composed consist of persons residing in this
   88  state, and at least 51 percent of the membership of the board of
   89  directors must be composed consist of persons residing within
   90  the service area of the lead agency. If a board committee
   91  governs the lead agency, 100 percent of its membership must be
   92  composed consist of persons residing within the service area of
   93  the lead agency.
   94         2. The powers of the board of directors or board committee
   95  include, but are not limited to, approving the lead agency’s
   96  budget and setting the lead agency’s operational policy and
   97  procedures. A board of directors must additionally have the
   98  power to hire the lead agency’s executive director, unless a
   99  board committee governs the lead agency, in which case the board
  100  committee must have the power to confirm the selection of the
  101  lead agency’s executive director.
  102         (c) Demonstrate financial responsibility through an
  103  organized plan for regular fiscal audits and the posting of a
  104  performance bond.
  105         (7)(a) As used in this subsection, the term:
  106         1. “Activity” includes, but is not limited to, a contract
  107  for goods and services, a contract for the purchase of any real
  108  or tangible property, or an agreement to engage with a lead
  109  agency for the benefit of a third party in exchange for an
  110  interest in real or tangible property, a monetary benefit, or an
  111  in-kind contribution.
  112         2. “Conflict of interest” means when a board member, a
  113  director, or an officer, or a relative of a board member, a
  114  director, or an officer, of a lead agency does any of the
  115  following:
  116         a. Enters into a contract or other transaction for goods or
  117  services with the lead agency.
  118         b. Holds a direct or indirect interest in a corporation,
  119  limited liability corporation, partnership, limited liability
  120  partnership, or other business entity that conducts business
  121  with the lead agency or proposes to enter into a contract or
  122  other transaction with the lead agency. For purposes of this
  123  paragraph, the term “indirect interest” has the same meaning as
  124  in s. 112.312.
  125         c. Knowingly obtains a direct or indirect personal,
  126  financial, professional, or other benefit as a result of the
  127  relationship of such board member, director, or officer, or
  128  relative of the board member, director, or officer, with the
  129  lead agency. For purposes of this paragraph, the term “benefit”
  130  does not include per diem and travel expenses paid or reimbursed
  131  to board members or officers of the lead agency in connection
  132  with their service on the board.
  133         3.“Related party” means any entity of which a director or
  134  an executive of the entity is also directly or indirectly
  135  related to, or has a direct or indirect financial or other
  136  material interest in, the lead agency. The term also includes
  137  any subsidiary, parent entity, associate firm, or joint venture,
  138  or any entity that is controlled, influenced, or managed by
  139  another entity or an individual related to such entity,
  140  including an individual who is, or was within the immediately
  141  preceding 3 years, an executive officer or a board member of the
  142  entity.
  143         4.3. “Relative” means a relative within the third degree of
  144  consanguinity by blood or marriage.
  145         (b)1. For any activity that is presented to the board of a
  146  lead agency for its initial consideration and approval after
  147  July 1, 2021, or any activity that involves a contract that is
  148  being considered for renewal on or after July 1, 2021, but
  149  before January 1, 2022, a board member, a director, or an
  150  officer of a lead agency shall disclose to the board any
  151  activity that may reasonably be construed to be a conflict of
  152  interest before such activity is initially considered and
  153  approved or a contract is renewed by the board. A rebuttable
  154  presumption of a conflict of interest exists if the activity was
  155  acted on by the board without prior notice as required under
  156  paragraph (c). The board shall disclose any known, actual, or
  157  potential conflicts to the department.
  158         2. A lead agency may not enter into a contract or be a
  159  party to any transaction that creates a conflict of interest,
  160  including with related parties for the provision of management
  161  or administrative services or oversight. The lead agency shall
  162  competitively procure all contracts with related parties in
  163  excess of $35,000 For contracts with a lead agency which are in
  164  existence on July 1, 2021, and are not subject to renewal before
  165  January 1, 2022, a board member or an officer of the lead agency
  166  shall disclose to the board any activity that may reasonably be
  167  construed to be a conflict of interest under this section by
  168  December 31, 2021.
  169         (g)1.Civil penalties in the amount of $5,000 per
  170  occurrence shall be imposed for each known and potential
  171  conflict of interest, as described in paragraph (b), which is
  172  not disclosed to the department.
  173         2.If a contract is procured for which a conflict of
  174  interest was not disclosed to the department before execution of
  175  the contract, the following penalties apply:
  176         a.A civil penalty in the amount of $50,000 for a first
  177  offense.
  178         b.A civil penalty in the amount of $100,000 for a second
  179  or subsequent offense.
  180         3.The civil penalties for failure to disclose a conflict
  181  of interest under subparagraphs 1. and 2. apply to any contract
  182  entered into, regardless of the method of procurement,
  183  including, but not limited to, formal procurement, single-source
  184  contracts, and contracts that do not meet the minimum threshold
  185  for formal procurement.
  186         4.A contract procured for which a conflict of interest was
  187  not disclosed to the department before execution of the contract
  188  must be reprocured.
  189         5.The department may, at its sole discretion, prohibit
  190  execution of a contract for which a conflict of interest exists,
  191  or will exist after execution.
  192         Section 2. Paragraphs (c), (i), (j), (k), and (l) of
  193  subsection (1) of section 409.988, Florida Statutes, are amended
  194  to read:
  195         409.988 Community-based care lead agency duties; general
  196  provisions.—
  197         (1) DUTIES.—A lead agency:
  198         (c) Shall follow the financial guidelines developed by the
  199  department and shall comply with regular, independent auditing
  200  of its financial activities, including any requests for records
  201  associated with such financial audits within the timeframe
  202  established by the department or its contracted vendors provide
  203  for a regular independent auditing of its financial activities.
  204  The results of the financial audit must Such financial
  205  information shall be provided to the community alliance
  206  established under s. 20.19(5).
  207         (i) Shall comply with federal and state statutory
  208  requirements and agency rules in the provision of contractual
  209  services. Any subcontract in excess of $250,000 must comply with
  210  the competitive procurement process.
  211         (j) May subcontract for the provision of services,
  212  excluding administrative and management functions, required by
  213  the contract with the lead agency and the department; however,
  214  the subcontracts must specify how the provider will contribute
  215  to the lead agency meeting the performance standards established
  216  pursuant to the child welfare results-oriented accountability
  217  system required by s. 409.997. The lead agency shall directly
  218  provide no more than 35 percent of all child welfare services
  219  provided unless it can demonstrate a need, within the lead
  220  agency’s geographic service area where there is a lack of viable
  221  providers available to perform the necessary services. The
  222  approval period to exceed the threshold must be limited to 2
  223  years. The lead agency shall reprocure for these services before
  224  the end of the 2-year period, to exceed this threshold. The
  225  local community alliance in the geographic service area in which
  226  the lead agency is seeking to exceed the threshold shall review
  227  the lead agency’s justification for need and recommend to the
  228  department whether the department should approve or deny the
  229  lead agency’s request for an exemption from the services
  230  threshold. If there is not a community alliance operating in the
  231  geographic service area in which the lead agency is seeking to
  232  exceed the threshold, such review and approval or denial of the
  233  lead agency’s request for an exemption from the services
  234  threshold must recommendation shall be made by the department.
  235  by representatives of local stakeholders, including at least one
  236  representative from each of the following:
  237         1. The department.
  238         2. The county government.
  239         3. The school district.
  240         4. The county United Way.
  241         5. The county sheriff’s office.
  242         6. The circuit court corresponding to the county.
  243         7. The county children’s board, if one exists.
  244         (k) Shall publish on its website by the 15th day of each
  245  month at a minimum the data specified in subparagraphs 1.-9. 1.
  246  5., calculated using a standard methodology determined by the
  247  department, for the preceding calendar month regarding its case
  248  management services. The following information must shall be
  249  reported by each individual subcontracted case management
  250  provider, by the lead agency, if the lead agency provides case
  251  management services, and in total for all case management
  252  services subcontracted or directly provided by the lead agency:
  253         1. The average caseload of case managers, including only
  254  filled positions;
  255         2. The total number and percentage of case managers who
  256  have 25 or more cases on their caseloads;
  257         3. The turnover rate for case managers and case management
  258  supervisors for the previous 12 months;
  259         4. The percentage of required home visits completed; and
  260         5. Performance on outcome measures required pursuant to s.
  261  409.997 for the previous 12 months;.
  262         6.The number of unlicensed placements for the previous
  263  month;
  264         7.The percentage and trends for foster parent and group
  265  home recruitment and licensure for the previous month;
  266         8.The percentage of families being served through family
  267  support, in-home, and out-of-home services for the previous
  268  month; and
  269         9.The percentage of cases that converted from nonjudicial
  270  to judicial for the previous month.
  271         Section 3. Section 409.991, Florida Statutes, is amended to
  272  read:
  273         409.991 Allocation of funds for community-based care lead
  274  agencies.—
  275         (1) As used in this section, the term:
  276         (a) “core services funds” means all funds allocated to
  277  community-based care lead agencies operating under contract with
  278  the department pursuant to s. 409.987. The term does not include
  279  any of, with the following exceptions:
  280         (a)1. Funds appropriated for independent living services;
  281         (b)2. Funds appropriated for maintenance adoption
  282  subsidies;
  283         (c)3. Funds allocated by the department for child
  284  protective investigation service investigations training;
  285         (d)4. Nonrecurring funds;
  286         (e)5. Designated mental health wrap-around service services
  287  funds;
  288         (f)6. Funds for special projects for a designated
  289  community-based care lead agency; and
  290         (g)7. Funds appropriated for the Guardianship Assistance
  291  Program under s. 39.6225.
  292         (b) “Equity allocation model” means an allocation model
  293  that uses the following factors:
  294         1. Proportion of the child population;
  295         2. Proportion of child abuse hotline workload; and
  296         3. Proportion of children in care.
  297         (c) “Proportion of child population” means the proportion
  298  of children up to 18 years of age during the previous calendar
  299  year in the geographic area served by the community-based care
  300  lead agency.
  301         (d) “Proportion of child abuse hotline workload” means the
  302  weighted average of the following subcomponents:
  303         1. The average number of initial and additional child abuse
  304  reports received during the month for the most recent 12 months
  305  based on child protective investigations trend reports as
  306  determined by the department. This subcomponent shall be
  307  weighted as 20 percent of the factor.
  308         2. The average count of children in investigations in the
  309  most recent 12 months based on child protective investigations
  310  trend reports as determined by the department. This subcomponent
  311  shall be weighted as 40 percent of the factor.
  312         3. The average count of children in investigations with a
  313  most serious finding of verified abuse in the most recent 12
  314  months based on child protective investigations trend reports as
  315  determined by the department. This subcomponent shall be
  316  weighted as 40 percent of the factor.
  317         (e) “Proportion of children in care” means the proportion
  318  of the number of children in care receiving in-home services
  319  over the most recent 12-month period, the number of children
  320  whose families are receiving family support services over the
  321  most recent 12-month period, and the number of children who have
  322  entered into out-of-home care with a case management overlay
  323  during the most recent 24-month period. This subcomponent shall
  324  be weighted as follows:
  325         1. Fifteen percent shall be based on children whose
  326  families are receiving family support services.
  327         2. Fifty-five percent shall be based on children in out-of
  328  home care.
  329         3. Thirty percent shall be based on children in in-home
  330  care.
  331         (2) Effective July 1, 2025, allocation of core services
  332  funds must be based on an actuarially sound, tiered payment
  333  model. The tiered model’s purpose is to achieve the overarching
  334  goals of a stable payment model that adjusts to workload and
  335  incentivizes prevention, family preservation, and permanency.
  336         (a)Tier 1 provides operational base and fixed costs, which
  337  do not vary based on the number of children and families served.
  338  Tier 1 payments may vary by geographic catchment area and cost
  339  of living differences. The department shall establish and
  340  annually update Tier 1 payment rates to maintain cost
  341  expectations that are aligned with the population served,
  342  services provided, and environment. Tier 1 expenses may include:
  343         1.Administrative expenditures;
  344         2.Lease payments;
  345         3.Asset depreciation;
  346         4.Utilities;
  347         5.Select components of case management, including
  348  administrative elements;
  349         6.Mandated activities such as training, quality, and
  350  contract management; or
  351         7.Activities performed for children and families which are
  352  nonjudicial and not candidates for Title IV-E funding, including
  353  true prevention and community-focused activities.
  354         (b)Tier 2 is a per-child, per-month payment designed to
  355  provide funding for lead agencies’ expenses that vary based on
  356  the number of children served for a particular month. The
  357  payment rate blends out-of-home rates and in-home rates specific
  358  to each lead agency to create a rate that provides a financial
  359  incentive to lead agencies to provide service in the least
  360  restrictive safe placement. The department shall establish and
  361  annually update Tier 2 payment rates to maintain cost
  362  expectations that are aligned with the population served,
  363  services provided, and environment. Tier 2 rates must be set
  364  annually.
  365         (c)Tier 3 provides financial incentives that the
  366  department shall establish to reward lead agencies that achieve
  367  performance measures aligned with the department’s goals of
  368  prevention, family preservation, and permanency. The equity
  369  allocation of core services funds shall be calculated based on
  370  the following weights:
  371         (a) Proportion of the child population shall be weighted as
  372  5 percent of the total.
  373         (b) Proportion of child abuse hotline workload shall be
  374  weighted as 35 percent of the total.
  375         (c) Proportion of children in care shall be weighted as 60
  376  percent of the total.
  377         (3) By December 1 of each year, beginning in 2024, the
  378  department shall submit a report to the Governor, the President
  379  of the Senate, and the Speaker of the House of Representatives
  380  which includes each lead agency’s actual performance in
  381  attaining the previous fiscal year’s targets, recommendations
  382  for adjustments to lead agency funding, and adjustments to the
  383  tiered payment model, if necessary Beginning in the 2015-2016
  384  state fiscal year, 100 percent of the recurring core services
  385  funding for each community-based care lead agency shall be based
  386  on the prior year recurring base of core services funds.
  387         (4) Effective July 1, 2025, unless otherwise specified in
  388  the General Appropriations Act, the department shall allocate
  389  all funding for core services based on the methodology
  390  established in this section any new core services funds shall be
  391  allocated based on the equity allocation model as follows:
  392         (a) Seventy percent of new funding shall be allocated among
  393  all community-based care lead agencies.
  394         (b) Thirty percent of new funding shall be allocated among
  395  community-based care lead agencies that are funded below their
  396  equitable share. Funds allocated pursuant to this paragraph
  397  shall be weighted based on each community-based care lead
  398  agency’s relative proportion of the total amount of funding
  399  below the equitable share.
  400         Section 4. Subsections (1) and (3) of section 409.992,
  401  Florida Statutes, are amended to read:
  402         409.992 Lead agency expenditures.—
  403         (1) The procurement of commodities or contractual services
  404  by lead agencies is shall be governed by the financial
  405  guidelines developed by the department and must comply with
  406  applicable state and federal law and follow good business
  407  practices. Pursuant to s. 11.45, the Auditor General may provide
  408  technical advice in the development of the financial guidelines.
  409         (a)Lead agencies shall competitively procure all
  410  contracts, consistent with the simplified acquisition threshold
  411  as specified in 2 C.F.R. part 200. Financial penalties or
  412  sanctions, as established by the department and incorporated
  413  into the contract, shall be imposed by the department for
  414  noncompliance with applicable local, state, or federal law for
  415  the procurement of commodities or contractual services.
  416         (b)Notwithstanding s. 402.73, for procurement of real
  417  property or professional services, lead agencies shall comply
  418  with established purchasing practices, including the provisions
  419  of s. 287.055, as required, for professional services, including
  420  engineering or construction design. Upon termination of the
  421  contract, the department shall immediately retain all rights to
  422  and ownership of real property procured. Any funds from the
  423  sale, transfer, or other dispossession of such property during
  424  the contract term shall be returned to the department.
  425         (3) Notwithstanding any other provision of law, a
  426  community-based care lead agency administrative employee may not
  427  receive a salary, whether base pay or base pay combined with any
  428  bonus or incentive payments from the lead agency or any related
  429  party, in excess of 150 percent of the annual salary paid to the
  430  secretary of the Department of Children and Families from state
  431  appropriated funds, including state-appropriated federal funds.
  432  This limitation applies regardless of the number of contracts a
  433  community-based care lead agency may execute with the
  434  department. This subsection does not prohibit any party from
  435  providing cash that is not from appropriated state funds to a
  436  community-based care lead agency administrative employee.
  437         Section 5. Paragraphs (c) and (d) of subsection (1) of
  438  section 409.994, Florida Statutes, are amended to read:
  439         409.994 Community-based care lead agencies; receivership.—
  440         (1) The Department of Children and Families may petition a
  441  court of competent jurisdiction for the appointment of a
  442  receiver for a community-based care lead agency established
  443  pursuant to s. 409.987 if any of the following conditions exist:
  444         (c) The department determines that conditions exist in the
  445  lead agency which present a an imminent danger to the health,
  446  safety, or welfare of the dependent children under that agency’s
  447  care or supervision. Whenever possible, the department shall
  448  make a reasonable effort to facilitate the continued operation
  449  of the program.
  450         (d) The lead agency cannot meet, or is unlikely to meet,
  451  its current financial obligations to its employees, contractors,
  452  or foster parents. Issuance of bad checks or the existence of
  453  delinquent obligations for payment of salaries, utilities, or
  454  invoices for essential services or commodities constitutes shall
  455  constitute prima facie evidence that the lead agency lacks the
  456  financial ability to meet its financial obligations.
  457         Section 6. Paragraph (d) of subsection (1) of section
  458  409.996, Florida Statutes, is amended to read:
  459         409.996 Duties of the Department of Children and Families.
  460  The department shall contract for the delivery, administration,
  461  or management of care for children in the child protection and
  462  child welfare system. In doing so, the department retains
  463  responsibility for the quality of contracted services and
  464  programs and shall ensure that, at a minimum, services are
  465  delivered in accordance with applicable federal and state
  466  statutes and regulations and the performance standards and
  467  metrics specified in the strategic plan created under s.
  468  20.19(1).
  469         (1) The department shall enter into contracts with lead
  470  agencies for the performance of the duties by the lead agencies
  471  established in s. 409.988. At a minimum, the contracts must do
  472  all of the following:
  473         (d) Provide for contractual actions tiered interventions
  474  and graduated penalties for failure to comply with contract
  475  terms or in the event of performance deficiencies, as determined
  476  appropriate by the department.
  477         1. Such contractual actions must interventions and
  478  penalties shall include, but are not limited to:
  479         1. Enhanced monitoring and reporting.
  480         a.2. Corrective action plans.
  481         b.3. Requirements to accept technical assistance and
  482  consultation from the department under subsection (6).
  483         c.4. Financial penalties, which shall require a lead agency
  484  to direct reallocate funds from administrative costs to the
  485  department. The department shall use the funds collected to
  486  support service delivery of quality improvement activities for
  487  children in the lead agency’s care to direct care for children.
  488  These penalties may be imposed for failure to provide timely,
  489  sufficient resolution of deficiencies resulting in a corrective
  490  action plan or other performance improvement plan issued by the
  491  department. Financial penalties may include liquidated damages.
  492         d.5. Early termination of contracts, as provided in s.
  493  402.7305(3)(f) s. 402.1705(3)(f).
  494         2.The department shall include in each lead agency
  495  contract executed a provision that requires payment to the
  496  department of sanctions or disincentives for failure to comply
  497  with contractual obligations. The department shall establish a
  498  schedule of daily monetary sanctions or disincentives for lead
  499  agencies, which must be incorporated by reference into the
  500  contract. The department is solely responsible for determining
  501  the monetary value of liquidated damages.
  502         Section 7. This act shall take effect July 1, 2024.