Florida Senate - 2024                       CS for CS for SB 536
       
       
        
       By the Appropriations Committee on Health and Human Services;
       the Committee on Children, Families, and Elder Affairs; and
       Senator Garcia
       
       
       
       603-03303-24                                           2024536c2
    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; requiring that contracts for which a
   20         conflict of interest was not disclosed be reprocured;
   21         authorizing the department to prohibit execution of
   22         certain contracts; amending s. 409.988, F.S.; revising
   23         community-based care lead agencies duties to include
   24         compliance with regular, independent auditing;
   25         requiring that contracts valued at more than a
   26         specified amount comply with the competitive
   27         procurement process; prohibiting lead agencies from
   28         subcontracting for management and oversight functions
   29         required by its contract; limiting the approval period
   30         for which the lead agency may provide more than 35
   31         percent of child welfare services to 2 years;
   32         requiring the lead agency to submit quarterly reports
   33         to the department and community alliance showing
   34         specified efforts; requiring the lead agency to
   35         reprocure such services at the end of a specified
   36         period; providing that, in a certain circumstance,
   37         review and approval or denial of a lead agency’s
   38         request for an exemption from the services threshold
   39         is within the sole purview of the department; revising
   40         the information that lead agencies must publish on
   41         their website; amending s. 409.992, F.S.; revising
   42         requirements for lead agency practices in the
   43         procurement of commodities and contractual services;
   44         requiring the department to impose certain penalties
   45         for a lead agency’s noncompliance with applicable
   46         procurement law; requiring lead agencies to comply
   47         with established purchasing practices for the
   48         procurement of real property and professional
   49         services; requiring the department to retain all
   50         rights to and ownership of real property procured upon
   51         termination of contracts; requiring that certain funds
   52         be returned to the department; providing applicability
   53         of certain limitations on the salaries of community
   54         based care lead agency administrative employees;
   55         amending s. 409.994, F.S.; revising the conditions
   56         under which the department may petition a court for
   57         the appointment of a receiver for a community-based
   58         care lead agency; amending s. 409.996, F.S.; revising
   59         requirements for contracts between the department and
   60         lead agencies; revising the actions the department may
   61         take in certain circumstances; making a technical
   62         change; providing duties of the department; providing
   63         an effective date.
   64          
   65  Be It Enacted by the Legislature of the State of Florida:
   66  
   67         Section 1. Subsections (3) and (4) and paragraphs (a) and
   68  (b) of subsection (7) of section 409.987, Florida Statutes, are
   69  amended, and paragraph (g) is added to subsection (7) of that
   70  section, to read:
   71         409.987 Lead agency procurement; boards; conflicts of
   72  interest.—
   73         (3) Notwithstanding s. 287.057, the department shall use 5
   74  year contracts with lead agencies. The 5-year contract must be
   75  reprocured at the end of each 5-year contract term. The contract
   76  may be extended at the discretion of the department for up to 1
   77  year, based on department needs.
   78         (4) In order to serve as a lead agency, an entity must:
   79         (a) Be organized as a Florida corporation or a governmental
   80  entity.
   81         (b) Be governed by a board of directors or a board
   82  committee composed of board members. Board members shall provide
   83  oversight and ensure accountability and transparency for the
   84  system of care. The board of directors shall provide fiduciary
   85  oversight to prevent conflicts of interest, promote
   86  accountability and transparency, and protect state and federal
   87  funding from misuse. The lead agency shall ensure that board
   88  members participate in annual training, as approved by the
   89  department, related to their responsibilities. The membership of
   90  the board of directors or board committee must be described in
   91  the bylaws or articles of incorporation of each lead agency,
   92  which must provide that at least 75 percent of the membership of
   93  the board of directors or board committee must be composed
   94  consist of persons residing in this state, and at least 51
   95  percent of the state residents on the board of directors must
   96  reside within the service area of the lead agency. However, for
   97  procurements of lead agency contracts initiated on or after July
   98  1, 2014:
   99         1. At least 75 percent of the membership of the board of
  100  directors must be composed consist of persons residing in this
  101  state, and at least 51 percent of the membership of the board of
  102  directors must be composed consist of persons residing within
  103  the service area of the lead agency. If a board committee
  104  governs the lead agency, 100 percent of its membership must be
  105  composed consist of persons residing within the service area of
  106  the lead agency.
  107         2. The powers of the board of directors or board committee
  108  include, but are not limited to, approving the lead agency’s
  109  budget and setting the lead agency’s operational policy and
  110  procedures. A board of directors must additionally have the
  111  power to hire the lead agency’s executive director, unless a
  112  board committee governs the lead agency, in which case the board
  113  committee must have the power to confirm the selection of the
  114  lead agency’s executive director.
  115         (c) Demonstrate financial responsibility through an
  116  organized plan for regular fiscal audits and the posting of a
  117  performance bond.
  118         (7)(a) As used in this subsection, the term:
  119         1. “Activity” includes, but is not limited to, a contract
  120  for goods and services, a contract for the purchase of any real
  121  or tangible property, or an agreement to engage with a lead
  122  agency for the benefit of a third party in exchange for an
  123  interest in real or tangible property, a monetary benefit, or an
  124  in-kind contribution.
  125         2. “Conflict of interest” means when a board member, a
  126  director, or an officer, or a relative of a board member, a
  127  director, or an officer, of a lead agency does any of the
  128  following:
  129         a. Enters into a contract or other transaction for goods or
  130  services with the lead agency.
  131         b. Holds a direct or indirect interest in a corporation,
  132  limited liability corporation, partnership, limited liability
  133  partnership, or other business entity that conducts business
  134  with the lead agency or proposes to enter into a contract or
  135  other transaction with the lead agency. For purposes of this
  136  paragraph, the term “indirect interest” has the same meaning as
  137  in s. 112.312.
  138         c. Knowingly obtains a direct or indirect personal,
  139  financial, professional, or other benefit as a result of the
  140  relationship of such board member, director, or officer, or
  141  relative of the board member, director, or officer, with the
  142  lead agency. For purposes of this paragraph, the term “benefit”
  143  does not include per diem and travel expenses paid or reimbursed
  144  to board members or officers of the lead agency in connection
  145  with their service on the board.
  146         3.“Related party” means any entity of which a director or
  147  an executive of the entity is also directly or indirectly
  148  related to, or has a direct or indirect financial or other
  149  material interest in, the lead agency. The term also includes
  150  any subsidiary, parent entity, associate firm, or joint venture,
  151  or any entity that is controlled, influenced, or managed by
  152  another entity or an individual related to such entity,
  153  including an individual who is, or was within the immediately
  154  preceding 3 years, an executive officer or a board member of the
  155  entity.
  156         4.3. “Relative” means a relative within the third degree of
  157  consanguinity by blood or marriage.
  158         (b)1. For any activity that is presented to the board of a
  159  lead agency for its initial consideration and approval after
  160  July 1, 2021, or any activity that involves a contract that is
  161  being considered for renewal on or after July 1, 2021, but
  162  before January 1, 2022, a board member, a director, or an
  163  officer of a lead agency shall disclose to the board any
  164  activity that may reasonably be construed to be a conflict of
  165  interest before such activity is initially considered and
  166  approved or a contract is renewed by the board. A rebuttable
  167  presumption of a conflict of interest exists if the activity was
  168  acted on by the board without prior notice as required under
  169  paragraph (c). The board shall disclose any known, actual, or
  170  potential conflicts to the department.
  171         2. A lead agency may not enter into a contract or be a
  172  party to any transaction that creates a conflict of interest,
  173  including with related parties for the provision of management
  174  or administrative services or oversight. The lead agency shall
  175  competitively procure all contracts with related parties in
  176  excess of $35,000 For contracts with a lead agency which are in
  177  existence on July 1, 2021, and are not subject to renewal before
  178  January 1, 2022, a board member or an officer of the lead agency
  179  shall disclose to the board any activity that may reasonably be
  180  construed to be a conflict of interest under this section by
  181  December 31, 2021.
  182         (g)1.Civil penalties in the amount of $5,000 per
  183  occurrence shall be imposed for each known and potential
  184  conflict of interest, as described in paragraph (b), which is
  185  not disclosed to the department. Civil penalties must be paid by
  186  the board and not from any state or federal funds.
  187         2.If a contract is executed for which a conflict of
  188  interest was not disclosed to the department before execution of
  189  the contract, the following penalties apply:
  190         a.A civil penalty in the amount of $50,000 for the first
  191  offense.
  192         b.A civil penalty in the amount of $100,000 for a second
  193  or subsequent offense.
  194         3.The civil penalties for failure to disclose a conflict
  195  of interest under subparagraphs 1. and 2. apply to any contract
  196  entered into, regardless of the method of procurement,
  197  including, but not limited to, formal procurement, single-source
  198  contracts, and contracts that do not meet the minimum threshold
  199  for formal procurement.
  200         4.A contract procured for which a conflict of interest was
  201  not disclosed to the department before execution of the contract
  202  must be reprocured.
  203         5.The department may, at its sole discretion, prohibit
  204  execution of a contract for which a conflict of interest exists,
  205  or will exist after execution.
  206         Section 2. Paragraphs (c), (i), (j), and (k) of subsection
  207  (1) of section 409.988, Florida Statutes, are amended to read:
  208         409.988 Community-based care lead agency duties; general
  209  provisions.—
  210         (1) DUTIES.—A lead agency:
  211         (c) Shall follow the financial guidelines developed by the
  212  department and shall comply with regular, independent auditing
  213  of its financial activities, including any requests for records
  214  associated with such financial audits within the timeframe
  215  established by the department or its contracted vendors provide
  216  for a regular independent auditing of its financial activities.
  217  The results of the financial audit must Such financial
  218  information shall be provided to the community alliance
  219  established under s. 20.19(5).
  220         (i) Shall comply with federal and state statutory
  221  requirements and agency rules in the provision of contractual
  222  services. Any subcontract in excess of $250,000 must comply with
  223  the competitive procurement process.
  224         (j) May subcontract for the provision of services,
  225  excluding management and oversight functions, required by the
  226  contract with the lead agency and the department; however, the
  227  subcontracts must specify how the provider will contribute to
  228  the lead agency meeting the performance standards established
  229  pursuant to the child welfare results-oriented accountability
  230  system required by s. 409.997. The contract with the department
  231  must detail the administrative functions and services the lead
  232  agency is allowed to subcontract. The lead agency shall directly
  233  provide no more than 35 percent of all child welfare services
  234  provided unless it can demonstrate a need, within the lead
  235  agency’s geographic service area where there is a lack of viable
  236  providers available to perform the necessary services. The
  237  approval period to exceed the threshold is limited to 2 years.
  238  During this 2-year period, the lead agency must submit quarterly
  239  reports to the department and the community alliance showing its
  240  efforts to recruit providers to the geographic service area. The
  241  lead agency must reprocure these services before the end of the
  242  2-year period, to exceed this threshold. The local community
  243  alliance in the geographic service area in which the lead agency
  244  is seeking to exceed the threshold shall review the lead
  245  agency’s justification for need and recommend to the department
  246  whether the department should approve or deny the lead agency’s
  247  request for an exemption from the services threshold. If there
  248  is not a community alliance operating in the geographic service
  249  area in which the lead agency is seeking to exceed the
  250  threshold, such review and approval or denial of the lead
  251  agency’s request for an exemption from the services threshold
  252  must recommendation shall be made by the department. by
  253  representatives of local stakeholders, including at least one
  254  representative from each of the following:
  255         1. The department.
  256         2. The county government.
  257         3. The school district.
  258         4. The county United Way.
  259         5. The county sheriff’s office.
  260         6. The circuit court corresponding to the county.
  261         7. The county children’s board, if one exists.
  262         (k) Shall publish on its website by the 15th day of each
  263  month at a minimum the data specified in subparagraphs 1.-9. 1.
  264  5., calculated using a standard methodology determined by the
  265  department, for the preceding calendar month regarding its case
  266  management services. The following information must shall be
  267  reported by each individual subcontracted case management
  268  provider, by the lead agency, if the lead agency provides case
  269  management services, and in total for all case management
  270  services subcontracted or directly provided by the lead agency:
  271         1. The average caseload of case managers, including only
  272  filled positions;
  273         2. The total number and percentage of case managers who
  274  have 25 or more cases on their caseloads;
  275         3. The turnover rate for case managers and case management
  276  supervisors for the previous 12 months;
  277         4. The percentage of required home visits completed; and
  278         5. Performance on outcome measures required pursuant to s.
  279  409.997 for the previous 12 months;.
  280         6.The number of unlicensed placements for the previous
  281  month;
  282         7.The percentage and trends for foster parent and group
  283  home recruitment and licensure for the previous month;
  284         8.The percentage of families being served through family
  285  support, in-home, and out-of-home services for the previous
  286  month; and
  287         9.The percentage of cases that converted from nonjudicial
  288  to judicial for the previous month.
  289         Section 3. Subsections (1) and (3) of section 409.992,
  290  Florida Statutes, are amended to read:
  291         409.992 Lead agency expenditures.—
  292         (1) The procurement of commodities or contractual services
  293  by lead agencies is shall be governed by the financial
  294  guidelines developed by the department and must comply with
  295  applicable state and federal law and follow good business
  296  practices. Pursuant to s. 11.45, the Auditor General may provide
  297  technical advice in the development of the financial guidelines.
  298         (a)Lead agencies shall competitively procure all
  299  contracts, consistent with the simplified acquisition threshold
  300  as specified in 2 C.F.R. part 200. Financial penalties or
  301  sanctions, as established by the department and incorporated
  302  into the contract, shall be imposed by the department for
  303  noncompliance with applicable local, state, or federal law for
  304  the procurement of commodities or contractual services.
  305         (b)Notwithstanding s. 402.73, for procurement of real
  306  property or professional services, lead agencies shall comply
  307  with established purchasing practices, including the provisions
  308  of s. 287.055, as required, for professional services, including
  309  engineering or construction design. Upon termination of the
  310  contract, the department shall immediately retain all rights to
  311  and ownership of real property procured. Any funds from the
  312  sale, transfer, or other dispossession of such property during
  313  the contract term shall be returned to the department.
  314         (3) Notwithstanding any other provision of law, a
  315  community-based care lead agency administrative employee may not
  316  receive a salary, whether base pay or base pay combined with any
  317  bonus or incentive payments from the lead agency or any related
  318  party, in excess of 150 percent of the annual salary paid to the
  319  secretary of the Department of Children and Families from state
  320  appropriated funds, including state-appropriated federal funds.
  321  This limitation applies regardless of the number of contracts a
  322  community-based care lead agency may execute with the
  323  department. This subsection does not prohibit any party from
  324  providing cash that is not from appropriated state funds to a
  325  community-based care lead agency administrative employee.
  326         Section 4. Paragraphs (c) and (d) of subsection (1) of
  327  section 409.994, Florida Statutes, are amended to read:
  328         409.994 Community-based care lead agencies; receivership.—
  329         (1) The Department of Children and Families may petition a
  330  court of competent jurisdiction for the appointment of a
  331  receiver for a community-based care lead agency established
  332  pursuant to s. 409.987 if any of the following conditions exist:
  333         (c) The department determines that conditions exist in the
  334  lead agency which present a an imminent danger to the health,
  335  safety, or welfare of the dependent children under that agency’s
  336  care or supervision. Whenever possible, the department shall
  337  make a reasonable effort to facilitate the continued operation
  338  of the program.
  339         (d) The lead agency cannot meet, or is unlikely to meet,
  340  its current financial obligations to its employees, contractors,
  341  or foster parents. Issuance of bad checks or the existence of
  342  delinquent obligations for payment of salaries, utilities, or
  343  invoices for essential services or commodities constitutes shall
  344  constitute prima facie evidence that the lead agency lacks the
  345  financial ability to meet its financial obligations.
  346         Section 5. Paragraph (d) of subsection (1) of section
  347  409.996, Florida Statutes, is amended to read:
  348         409.996 Duties of the Department of Children and Families.
  349  The department shall contract for the delivery, administration,
  350  or management of care for children in the child protection and
  351  child welfare system. In doing so, the department retains
  352  responsibility for the quality of contracted services and
  353  programs and shall ensure that, at a minimum, services are
  354  delivered in accordance with applicable federal and state
  355  statutes and regulations and the performance standards and
  356  metrics specified in the strategic plan created under s.
  357  20.19(1).
  358         (1) The department shall enter into contracts with lead
  359  agencies for the performance of the duties by the lead agencies
  360  established in s. 409.988. At a minimum, the contracts must do
  361  all of the following:
  362         (d) Provide for contractual actions tiered interventions
  363  and graduated penalties for failure to comply with contract
  364  terms or in the event of performance deficiencies, as determined
  365  appropriate by the department.
  366         1. Such contractual actions must interventions and
  367  penalties shall include, but are not limited to:
  368         1. Enhanced monitoring and reporting.
  369         a.2. Corrective action plans.
  370         b.3. Requirements to accept technical assistance and
  371  consultation from the department under subsection (6).
  372         c.4. Financial penalties, which shall require a lead agency
  373  to direct reallocate funds from administrative costs to the
  374  department. The department shall use the funds collected to
  375  support service delivery of quality improvement activities for
  376  children in the lead agency’s care to direct care for children.
  377  These penalties may be imposed for failure to provide timely,
  378  sufficient resolution of deficiencies resulting in a corrective
  379  action plan or other performance improvement plan issued by the
  380  department. Financial penalties may include liquidated damages.
  381         d.5. Early termination of contracts, as provided in s.
  382  402.7305(3)(f) s. 402.1705(3)(f).
  383         2.The department shall include in each lead agency
  384  contract executed a provision that requires payment to the
  385  department of sanctions or disincentives for failure to comply
  386  with contractual obligations. The department shall establish a
  387  schedule of daily monetary sanctions or disincentives for lead
  388  agencies, which must be incorporated by reference into the
  389  contract. The department is solely responsible for determining
  390  the monetary value of liquidated damages.
  391         Section 6. This act shall take effect July 1, 2024.