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Senate Bill 1476

Senate Bill sb1476c3

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    By the Committees on Health and Human Services Appropriations;
    Governmental Oversight and Productivity; Children and
    Families; and Senators Campbell and Margolis



    603-1895-05

  1                      A bill to be entitled

  2         An act relating to the Department of Children

  3         and Family Services; providing legislative

  4         intent with respect to establishing a structure

  5         by which the department shall monitor and

  6         manage contracts with external service

  7         providers; providing definitions; requiring the

  8         department to competitively procure certain

  9         commodities and contractual services; requiring

10         the department to allow all public

11         postsecondary institutions to bid on contracts

12         intended for any public postsecondary

13         institution; authorizing the department to

14         competitively procure and contract for systems

15         of treatment or service that involve multiple

16         providers; providing requirements if other

17         governmental entities contribute matching

18         funds; requiring that an entity providing

19         matching funds must comply with certain

20         procurement procedures; authorizing the

21         department to independently procure and

22         contract for treatment services; requiring that

23         the department develop a validated business

24         case before outsourcing any service or

25         function; providing requirements for the

26         business case; requiring that the validated

27         business case be submitted to the Legislature

28         for approval; requiring that a contractual

29         service that has previously been outsourced be

30         subject to the requirements for a validated

31         business case; requiring that a procurement of

                                  1

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 1         contractual services equal to or in excess of

 2         the threshold amount for CATEGORY FIVE comply

 3         with specified requirements, including a scope

 4         of work and performance standards; authorizing

 5         the department to adopt incremental penalties

 6         by rule; authorizing the department to include

 7         cost-neutral, performance-based incentives in a

 8         contract; requiring multiyear contracts unless

 9         justification is provided; requiring that a

10         contract in excess of $1 million be negotiated

11         by a contract negotiator who is certified

12         according to standards established by the

13         Department of Management Services; limiting

14         circumstances under which the department may

15         amend a contract; requiring that a proposed

16         contract amendment be submitted to the

17         Executive Office of the Governor for approval;

18         requiring approval of a contract amendment by

19         the Administration Commission under certain

20         circumstances; requiring the department to

21         verify that contractual terms have been

22         satisfied before renewing a contract; requiring

23         certain documentation; requiring the department

24         to develop, in consultation with the Department

25         of Management Services, contract templates and

26         guidelines; requiring that the department

27         establish a contract-management process;

28         specifying the requirements for and components

29         of the contract-management process; providing

30         requirements for resolving performance

31         deficiencies and terminating a contract;

                                  2

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 1         requiring a corrective-action plan under

 2         certain circumstances; requiring the department

 3         to develop standards of conduct and

 4         disciplinary actions; requiring that the

 5         department establish contract-monitoring units

 6         and a contract-monitoring process; requiring

 7         written reports; requiring on-site visits for

 8         contracts involving the provision of direct

 9         client services; requiring the department to

10         make certain documents available to the

11         Legislature; requiring the department to create

12         an electronic database to store the documents;

13         prohibiting contractors from performing certain

14         functions; amending s. 402.73, F.S.; requiring

15         the Agency for Persons with Disabilities to

16         implement systems to ensure quality and fiscal

17         integrity of programs in the developmental

18         services Medicaid waiver system; providing an

19         exemption for health services from competitive

20         bidding requirements; amending s. 409.1671,

21         F.S.; conforming provisions to changes made by

22         the act; requiring that the Office of Program

23         Policy Analysis and Government Accountability

24         conduct two reviews of the contract-management

25         and accountability structures of the department

26         and report to the Legislature and the Auditor

27         General; repealing s. 402.72, F.S., relating to

28         contract-management requirements for the

29         Department of Children and Family Services;

30         providing an appropriation; providing an

31         effective date.

                                  3

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 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Department of Children and Family Services;

 4  procurement of contractual services; outsourcing or

 5  privatization; contract management.--

 6         (1)  LEGISLATIVE INTENT.--The Legislature intends that

 7  the Department of Children and Family Services obtain services

 8  in the manner that is most efficient and cost-effective for

 9  the state, that provides the greatest long-term benefits to

10  the clients receiving services, and that minimizes the

11  disruption of client services. In order to meet these

12  legislative goals, the department shall comply with

13  legislative policy guidelines that require compliance with

14  uniform procedures for procuring contractual services,

15  prescribe how the department must outsource its programmatic

16  and administrative services to external service providers

17  rather than having them provided by the department or another

18  state agency, and establish a contract-management and

19  contract-monitoring process.

20         (2)  DEFINITIONS.--As used in this section, the term:

21         (a)  "Contract manager" means the department employee

22  who is responsible for enforcing the compliance with

23  administrative and programmatic terms and conditions of a

24  contract. The contract manager is the primary point of contact

25  through which all contracting information flows between the

26  department and the contractor. The contract manager is

27  responsible for day-to-day contract oversight, including

28  approval of contract deliverables and invoices. All actions

29  related to the contract shall be initiated by or coordinated

30  with the contract manager. The contract manager maintains the

31  official contract files.

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 1         (b)  "Contract monitor" means the department employee

 2  who is responsible for observing, recording, and reporting to

 3  the contract manager and other designated entities the

 4  information necessary to assist the contract manager and

 5  program management in determining whether the contractor is in

 6  compliance with the administrative and programmatic terms and

 7  conditions of the contract.

 8         (c)  "Department" means the Department of Children and

 9  Family Services.

10         (d)  "Outsourcing" means the process of contracting

11  with an external service provider to provide a service, in

12  whole or in part, while the department retains the

13  responsibility and accountability for the service.

14         (e)  "Performance measure" means the quantitative

15  indicators used to assess if the service the external provider

16  is performing is achieving the desired results. Measures of

17  performance include outputs, direct counts of program

18  activities, and outcomes or results of program activities in

19  the lives of the clients served.

20         (f)  "Performance standard" means the quantifiable,

21  specified, and desired level to be achieved for a particular

22  performance measure.

23         (g)  "Privatize" means any process aimed at

24  transferring the responsibility for a service, in whole or in

25  part, from the department to the private sector such that the

26  private sector is solely and fully responsible for the

27  performance of the specific service.

28         (h)  "Service" means all or any portion of a program or

29  program component as defined in section 216.011.

30         (3)  PROCUREMENT OF COMMODITIES AND CONTRACTUAL

31  SERVICES.--

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 1         (a)  For the purchase of commodities and contractual

 2  services in excess of the threshold amount established in

 3  section 287.017, Florida Statutes, for CATEGORY TWO, the

 4  department shall comply with the requirements set forth in

 5  section 287.057, Florida Statutes.

 6         (b)  Notwithstanding section 287.057(5)(f)13., Florida

 7  Statutes, whenever the department intends to contract with a

 8  public postsecondary institution to provide a service, the

 9  department must allow all public postsecondary institutions in

10  this state that are accredited by the Southern Association of

11  Colleges and Schools to bid on the contract. Thereafter,

12  notwithstanding any other provision to the contrary, if a

13  public postsecondary institution intends to subcontract for

14  any service awarded in the contract, the subcontracted service

15  must be procured by competitive procedures.

16         (c)  When it is in the best interest of a defined

17  segment of its consumer population, the department may

18  competitively procure and contract for systems of treatment or

19  service that involve multiple providers, rather than procuring

20  and contracting for treatment or services separately from each

21  participating provider. The department must ensure that all

22  providers that participate in the treatment or service system

23  meet all applicable statutory, regulatory, service-quality,

24  and cost-control requirements. If other governmental entities

25  or units of special purpose government contribute matching

26  funds to the support of a given system of treatment or

27  service, the department shall formally request information

28  from those funding entities in the procurement process and may

29  take the information received into account in the selection

30  process. If a local government contributes matching funds to

31  support the system of treatment or contracted service and if

                                  6

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 1  the match constitutes at least 25 percent of the value of the

 2  contract, the department shall afford the governmental match

 3  contributor an opportunity to name an employee as one of the

 4  persons required by section 287.057(17), Florida Statutes, to

 5  evaluate or negotiate certain contracts, unless the department

 6  sets forth in writing the reason why the inclusion would be

 7  contrary to the best interest of the state. Any employee so

 8  named by the governmental match contributor shall qualify as

 9  one of the persons required by section 287.057(17), Florida

10  Statutes. A governmental entity or unit of special purpose

11  government may not name an employee as one of the persons

12  required by section 287.057(17), Florida Statutes, if it, or

13  any of its political subdivisions, executive agencies, or

14  special districts, intends to compete for the contract to be

15  awarded. The governmental funding entity or contributor of

16  matching funds must comply with all procurement procedures set

17  forth in section 287.057, Florida Statutes, when appropriate

18  and required.

19         (d)  The department may procure and contract for or

20  provide assessment and case-management services independently

21  from treatment services.

22         (4)  SOURCING STANDARDS AND REQUIREMENTS.--If the

23  department proposes to outsource a service, the department

24  must comply with the requirements of this section prior to the

25  procurement process provided for in section 287.057, Florida

26  Statutes.

27         (a)  The department shall develop a business case

28  describing and analyzing the service proposed for outsourcing.

29  A business case is part of the solicitation process and is not

30  a rule subject to challenge pursuant to section 120.54,

31  

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 1  Florida Statutes. The business case must include, but need not

 2  be limited to:

 3         1.  A detailed description of the services to be

 4  outsourced, a description and analysis of the department's

 5  current performance of the service, and a rationale

 6  documenting how outsourcing the service would be in the best

 7  interest of the state, the department, and its clients.

 8         2.  A cost-benefit analysis documenting the estimated

 9  specific direct and indirect costs, savings, performance

10  improvements, risks, and qualitative and quantitative benefits

11  involved in or resulting from outsourcing the service. The

12  cost-benefit analysis must include a detailed plan and

13  timeline identifying all actions that must be implemented to

14  realize expected benefits. Under section 92.525, Florida

15  Statutes, the Secretary of Children and Family Services shall

16  verify that all costs, savings, and benefits are valid and

17  achievable.

18         3.  A description of the specific performance measures

19  and standards that must be achieved through the outsourcing

20  proposal.

21         4.  A statement of the potential effect on applicable

22  federal, state, and local revenues and expenditures. The

23  statement must specifically describe the effect on general

24  revenue, trust funds, general revenue service charges, and

25  interest on trust funds, together with the potential direct or

26  indirect effect on federal funding and cost allocations.

27         5.  A plan to ensure compliance with public-record

28  laws, which must include components that:

29         a.  Provide public access to public records at a cost

30  that does not exceed that provided in chapter 119, Florida

31  Statutes.

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 1         b.  Ensure the confidentiality of records that are

 2  exempt from disclosure or confidential under law.

 3         c.  Meet all legal requirements for record retention.

 4         d.  Allow for transfer to the state, at no cost, all

 5  public records in possession of the external service provider

 6  upon termination of the contract.

 7         6.  A department transition and implementation plan for

 8  addressing changes in the number of agency personnel, affected

 9  business processes, and employee-transition issues. Such a

10  plan must also specify the mechanism for continuing the

11  operation of the service if the contractor fails to perform

12  and comply with the performance measures and standards and

13  provisions of the contract. Within this plan, the department

14  shall identify all resources, including full-time equivalent

15  positions, which are subject to outsourcing. All full-time

16  equivalent positions identified in the plan shall be placed in

17  reserve by the Executive Office of the Governor until the end

18  of the second year of the contract. Notwithstanding the

19  provisions of section 216.262, Florida Statutes, the Executive

20  Office of the Governor shall request authority from the

21  Legislative Budget Commission to reestablish full-time

22  positions above the number fixed by the Legislature when a

23  contract is terminated and the outsourced service must be

24  returned to the department.

25         7.  A listing of assets proposed for transfer to or use

26  by the external service provider, a description of the

27  proposed requirements for maintenance of those assets by the

28  external service provider or the department in accordance with

29  chapter 273, Florida Statutes, a plan for their disposition

30  upon termination of the contract, and a description of how the

31  

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 1  planned asset transfer or use by the contractor is in the best

 2  interest of the department and the state.

 3         (b)1.  If the department proposes to outsource the

 4  service in the next fiscal year, the department shall submit

 5  the business case with the department's final legislative

 6  budget request, in the manner and form prescribed in the

 7  legislative budget request instructions under section 216.023,

 8  Florida Statutes. Upon approval in the General Appropriations

 9  Act, the department may initiate and complete the procurement

10  process under section 287.057, Florida Statutes, and shall

11  have the authority to enter into contracts with the external

12  service provider.

13         2.  If a proposed outsourcing initiative would require

14  integration with, or would in any way affect other state

15  information technology systems, the department shall submit

16  the feasibility study documentation required by the

17  legislative budget request instructions under section 216.023,

18  Florida Statutes.

19         (c)  If the department proposes to outsource a service

20  during a fiscal year and the outsourcing provision was not

21  included in the approved operating budget of the department,

22  the department must provide to the Governor, the President of

23  the Senate, the Speaker of the House of Representatives, the

24  chairs of the legislative appropriations committees, and the

25  chairs of the relevant substantive committees the business

26  case that complies with the requirements of paragraph (a) at

27  least 45 days before the release of any solicitation

28  documents, as provided for in section 287.057, Florida

29  Statutes. Any budgetary changes that are inconsistent with the

30  department's approved budget may not be made to existing

31  programs unless the changes are recommended to the Legislative

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 1  Budget Commission by the Governor and the Legislative Budget

 2  Commission expressly approves the program changes.

 3         (d)  The department may not privatize a service without

 4  specific authority provided in general law, the General

 5  Appropriations Act, legislation implementing the General

 6  Appropriations Act, or a special appropriations act.

 7         (5)  CONTRACTING AND PERFORMANCE MEASURES.--In addition

 8  to the requirements of section 287.058, Florida Statutes,

 9  every procurement of contractual services by the department

10  which meets or is in excess of the threshold amount provided

11  in section 287.017, Florida Statutes, for CATEGORY FIVE, must

12  comply with the requirements of this subsection.

13         (a)  The department shall execute a contract containing

14  all provisions and conditions, which must include, but need

15  not be limited to:

16         1.  A detailed scope of work that clearly specifies

17  each service and deliverable to be provided, including a

18  description of each deliverable or activity that is

19  quantifiable, measurable, and verifiable by the department and

20  the contractor.

21         2.  Associated costs and savings, specific payment

22  terms and payment schedules, including incentive and penalty

23  provisions, criteria governing payment, and a clear and

24  specific schedule to complete all required activities needed

25  to transfer the service from the state to the contractor.

26         3.  Clear and specific identification of all required

27  performance measures and standards, which must, at a minimum,

28  include:

29         a.  Acceptance criteria for each deliverable and

30  service to be provided to the department under the terms of

31  the contract which document, to the greatest extent possible,

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 1  the required performance level. Acceptance criteria must be

 2  detailed, clear, and unambiguous and shall be used to measure

 3  deliverables and services to be provided under the contract.

 4         b.  A method for monitoring and reporting progress in

 5  achieving specified performance standards and levels.

 6         c.  The sanctions or penalties that shall be assessed

 7  for contract or state nonperformance. The department may

 8  adopt, by rule, provisions for including in its contracts

 9  incremental penalties to be imposed by its contract managers

10  on a contractor due to the contractor's failure to comply with

11  a requirement for corrective action. Any financial penalty

12  that is imposed upon a contractor may not be paid from funds

13  being used to provide services to clients, and the contractor

14  may not reduce the amount of services being delivered to

15  clients as a method for offsetting the effect of the penalty.

16  If a financial penalty is imposed upon a contractor that is a

17  corporation, the department shall notify, at a minimum, the

18  board of directors of the corporation. The department may

19  notify any additional parties that the department believes may

20  be helpful in obtaining the corrective action that is being

21  sought. In addition, the rules adopted by the department must

22  include provisions that permit the department to deduct the

23  financial penalties from funds that would otherwise be due to

24  the contractor, not to exceed 10 percent of the amount that

25  otherwise would be due to the contractor for the period of

26  noncompliance. If the department imposes a financial penalty,

27  it shall advise the contractor in writing of the cause for the

28  penalty. A failure to include such deductions in a request for

29  payment constitutes grounds for the department to reject that

30  request for payment. The remedies identified in this paragraph

31  do not limit or restrict the department's application of any

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 1  other remedy available to it in the contract or under law. The

 2  remedies described in this paragraph may be cumulative and may

 3  be assessed upon each separate failure to comply with

 4  instructions from the department to complete corrective

 5  action.

 6         4.  A requirement that the contractor maintain adequate

 7  accounting records that comply with all applicable federal and

 8  state laws and generally accepted accounting principles.

 9         5.  A requirement authorizing the department and state

10  to have access to and conduct audits of all records related to

11  the contract and outsourced services.

12         6.  A requirement that ownership of any intellectual

13  property developed in the course of, or as a result of, work

14  or services performed under the contract shall transfer to the

15  state if the contractor ceases to provide the outsourced

16  service.

17         7.  A requirement describing the timing and substance

18  of all plans and status or progress reports that are to be

19  provided. All plans and status or progress reports must comply

20  with any relevant state and federal standards for planning,

21  implementation, operations, and oversight.

22         8.  A requirement that the contractor shall comply with

23  public-record laws. The contractor shall:

24         a.  Keep and maintain the public records that

25  ordinarily and necessarily would be required by the department

26  to perform the service.

27         b.  Provide public access to such public records on the

28  same terms and conditions that the department would and at a

29  cost that does not exceed that provided in chapter 119.

30         c.  Ensure the confidentiality of records that are

31  exempt from disclosure or confidential under law.

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 1         d.  Meet all legal and auditing requirements for record

 2  retention, and transfer to the state, at no cost to the state,

 3  all public records in possession of the contractor upon

 4  termination of the contract. All records stored electronically

 5  must be provided to the state in the format compatible with

 6  state information technology systems.

 7         9.  A requirement that any state funds provided for the

 8  purchase of or improvements to real property are contingent

 9  upon the contractor granting to the state a security interest

10  in the property which is at least equal to the amount of the

11  state funds provided for at least 5 years following the date

12  of purchase or the completion of the improvements or as

13  further required by law. The contract must include a provision

14  that, as a condition of receipt of state funding for this

15  purpose, the contractor agrees that, if it disposes of the

16  property before the department's interest is vacated, the

17  contractor must refund the proportionate share of the state's

18  initial investment, as adjusted by depreciation.

19         10.  A provision that the contractor annually submit

20  and verify, under section 92.525, Florida Statutes, all

21  required financial statements.

22         11.  A provision that the contractor will be held

23  responsible and accountable for all work covered under the

24  contract including any work performed by subcontractors. The

25  contract must state that the department may monitor the

26  performance of any subcontractor.

27         (b)  A contract may include cost-neutral,

28  performance-based incentives that may vary according to the

29  extent a contractor achieves or surpasses the performance

30  standards set forth in the contract. The incentives may be

31  weighted proportionally to reflect the extent to which the

                                  14

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 1  contractor has demonstrated that it has consistently met or

 2  exceeded the contractual requirements and the performance

 3  standards.

 4         (c) The department shall review the time period for

 5  which it executes contracts and shall execute multiyear

 6  contracts to make the most efficient use of the resources

 7  devoted to contract processing and execution. Whenever the

 8  department chooses not to use a multiyear contract, a

 9  justification for that decision must be contained in the

10  contract.

11         (d)  When the annualized value of a contract is in

12  excess of $1 million, at least one of the persons conducting

13  negotiations must be certified as a contract negotiator based

14  upon standards established by the Department of Management

15  Services.

16         (e)  The department may not amend a contract without

17  first submitting the proposed contract amendment to the

18  Executive Office of the Governor for approval if the effect of

19  the amendment would be to increase:

20         1.  The value of the contract by $250,000 for those

21  contracts with a total value of at least $250,000 but less

22  than $1 million;

23         2.  The value of the contract by $1 million for those

24  contracts with a total value of at least $1 million but less

25  than $10 million;

26         3.  The value of the contract by 10 percent for those

27  contracts with a total value of $10 million or more; or

28         4.  The term of the contract by 1 year or more.

29  

30  When the department proposes any contract amendment that meets

31  the criteria described in this paragraph, it shall submit the

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 1  proposed contract amendment to the Executive Office of the

 2  Governor for approval and shall immediately notify the chairs

 3  of the legislative appropriations committees. The Executive

 4  Office of the Governor may not approve the proposed contract

 5  amendment until 14 days following receipt of the notification

 6  to the legislative appropriations chairs. If either chair of

 7  the legislative appropriations committees objects in writing

 8  to a proposed contract amendment within 14 days following

 9  notification and specifies the reasons for the objection, the

10  Executive Office of the Governor shall disapprove the proposed

11  contract amendment or shall submit the proposed contract

12  amendment to the Administration Commission. The proposed

13  contract amendment may be approved by the Administration

14  Commission by a two-thirds vote of the members present with

15  the Governor voting in the affirmative. In the absence of

16  approval by the commission, the proposed contract amendment

17  shall be automatically disapproved. Otherwise, upon approval

18  by the Governor or Administration Commission, the department

19  may execute the contract amendment.

20         (f)  An amendment that is issued under legislative

21  direction, including funding adjustments annually provided for

22  in the General Appropriations Act or the federal

23  appropriations acts, need not be submitted for approval in

24  accordance with paragraph (d).

25         (g)  In addition to the requirements of subsections

26  287.057(13) and (14), Florida Statutes, the department shall

27  verify, based on the best available data at the point of

28  contract renegotiations, that all specific direct and indirect

29  costs, savings, performance measures and standards, and

30  qualitative and quantitative benefits identified in the

31  original contract have been satisfied by a contractor or the

                                  16

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 1  department before the contract is extended or renewed. The

 2  documentation must include an explanation of any differences

 3  between the required performance as identified in the contract

 4  and the actual performance of the contractor. The

 5  documentation must be included in the official contract file.

 6         (h)  The department shall, in consultation with the

 7  Department of Management Services, develop contract templates

 8  and guidelines that define the mandatory contract provisions

 9  and other requirements identified in this subsection and that

10  must be used for all contractual service contracts meeting the

11  requirements of this subsection. All contract templates and

12  guidelines shall be developed by September 30, 2005.

13         (6)  CONTRACT-MANAGEMENT REQUIREMENTS AND

14  PROCESS.--Notwithstanding section 287.057(15), Florida

15  Statutes, the department is responsible for establishing a

16  contract-management process that requires a member of the

17  department's Senior Management Service to assign in writing

18  the responsibility of a contract to a contract manager. The

19  department shall maintain a set of procedures describing its

20  contract-management process which must minimally include the

21  following requirements:

22         (a)  The contract manager shall maintain the official

23  contract file throughout the duration of the contract and for

24  a period not less than 6 years after the termination of the

25  contract.

26         (b)  The contract manager shall review all invoices for

27  compliance with the criteria and payment schedule provided for

28  in the contract and shall approve payment of all invoices

29  before their transmission to the Department of Financial

30  Services for payment. Only the contract manager shall approve

31  the invoices for a specific contract, unless the contract

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 1  manager is temporarily unavailable to review an invoice. The

 2  contract file must contain an explanation for any periods of

 3  temporary unavailability of the assigned contract manager. For

 4  any individual invoice in excess of $500,000, a member of the

 5  Selected Exempt Service or Senior Management Service shall

 6  also sign payment approval of the invoice. For any individual

 7  invoice in excess of $1 million, a member of the Senior

 8  Management Service shall also sign payment approval of the

 9  invoice.

10         (c)  The contract manager shall maintain a schedule of

11  payments and total amounts disbursed and shall periodically

12  reconcile the records with the state's official accounting

13  records.

14         (d)  For contracts involving the provision of direct

15  client services, the contract manager shall periodically visit

16  the physical location where the services are delivered and

17  speak directly to clients receiving the services and the staff

18  responsible for delivering the services.

19         (e)  For contracts for which the contractor is a

20  corporation, the contract manager shall attend at least one

21  board meeting semiannually, if held and if within 100 miles of

22  the contract manager's official headquarters.

23         (f)  The contract manager shall meet at least once a

24  month directly with the contractor's representative and

25  maintain records of such meetings.

26         (g)  The contract manager shall periodically document

27  any differences between the required performance measures and

28  the actual performance measures. If a contractor fails to meet

29  and comply with the performance measures established in the

30  contract, the department may allow a reasonable period for the

31  contractor to correct performance deficiencies. If performance

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 1  deficiencies are not resolved to the satisfaction of the

 2  department within the prescribed time, and if no extenuating

 3  circumstances can be documented by the contractor to the

 4  department's satisfaction, the department must terminate the

 5  contract. The department may not enter into a new contract

 6  with that same contractor for the services for which the

 7  contract was previously terminated for a period of at least 24

 8  months after the date of termination. The contract manager

 9  shall obtain and enforce corrective-action plans, if

10  appropriate, and maintain records regarding the completion or

11  failure to complete corrective-action items.

12         (h)  The contract manager shall document any contract

13  modifications, which shall include recording any contract

14  amendments as provided for in this section.

15         (i)  The contract manager shall be properly trained

16  before being assigned responsibility for any contract.

17  

18  The department shall develop standards of conduct and a range

19  of disciplinary actions for its employees which are

20  specifically related to carrying out contract-management

21  responsibilities.

22         (7)  CONTRACT-MONITORING REQUIREMENTS AND PROCESS.--The

23  department shall establish contract-monitoring units staffed

24  by full-time career service employees who report to a member

25  of the Select Exempt Service or Senior Management Service and

26  who have been properly trained to perform contract monitoring.

27  A member of the Senior Management Service shall assign in

28  writing a specific contract to a contract-monitoring unit,

29  with at least one member of the contract-monitoring unit

30  possessing specific knowledge and experience in the contract's

31  program area. The department shall establish a

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 1  contract-monitoring process that must include, but need not be

 2  limited to, the following requirements:

 3         (a)  Performing a risk assessment at the start of each

 4  fiscal year and preparing an annual contract-monitoring

 5  schedule that includes consideration for the level of risk

 6  assigned. The department may monitor any contract at any time

 7  regardless of whether such monitoring was originally included

 8  in the annual contract-monitoring schedule.

 9         (b)  Preparing a contract-monitoring plan, including

10  sampling procedures, before performing on-site monitoring at

11  external locations of a service provider. The plan must

12  include a description of the programmatic, fiscal, and

13  administrative components that will be monitored on-site. If

14  appropriate, clinical and therapeutic components may be

15  included.

16         (c)  Conducting analyses of the performance and

17  compliance of an external service provider by means of desk

18  reviews if the external service provider will not be monitored

19  on-site during a fiscal year.

20         (d)  Unless the department sets forth in writing the

21  need for an extension, providing a written report presenting

22  the results of the monitoring within 30 days after the

23  completion of the on-site monitoring or desk review. Report

24  extensions may not exceed 30 days after the original

25  completion date. The department shall develop and use a

26  standard contract-monitoring report format and shall provide

27  access to the reports by means of a website that is available

28  to the Legislature.

29         (e)  For contracts involving the provision of direct

30  client services, requiring the contract monitor to visit the

31  physical location where the services are being delivered and

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 1  to speak directly to the clients receiving the services and

 2  with the staff responsible for delivering the services.

 3         (f)  Developing and maintaining a set of procedures

 4  describing the contract-monitoring process.

 5  

 6  The department shall develop standards of conduct and a range

 7  of disciplinary actions for its employees which are

 8  specifically related to carrying out contract-monitoring

 9  responsibilities.

10         (8)  CONTRACTOR PROHIBITIONS.--

11         (a)  A contractor, as defined in chapter 287, Florida

12  Statutes, or its employees, agents, or subcontractors, may not

13  directly or indirectly supervise, direct, or act as an

14  approving authority over any state employee or over the

15  actions committed to the responsibility of a state employee.

16         (b)  A contractor, as defined in chapter 287, Florida

17  Statutes, or its employees, agents, or subcontractors, may not

18  knowingly participate through decision, approval, disapproval,

19  recommendation, preparation of any part of a purchase request,

20  influencing the content of any specification or procurement

21  standard, rendering of advice, investigation, or auditing, or

22  in any other advisory capacity, in the procurement of

23  contractual services from an entity of which the contractor,

24  or its employees, agents, or subcontractors, has a material

25  interest.

26         (9)  REPORTS TO THE LEGISLATURE.--Beginning October 1,

27  2005, the department shall make available to the Legislature

28  electronically all documents associated with the procurement

29  and contracting functions of the department. The documents in

30  the database must include, but are not limited to, all:

31         (a)  Business cases;

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 1         (b)  Procurement documents;

 2         (c)  Contracts and any related files, attachments, or

 3  amendments;

 4         (d)  Contract monitoring reports;

 5         (e)  Corrective action plans and reports of corrective

 6  actions taken when contractor performance deficiencies are

 7  identified; and

 8         (f)  Status reports on all outsourcing initiatives

 9  describing the progress by the department towards achieving

10  the business objectives, costs, savings, and quantifiable

11  benefits identified in the business case.

12         Section 2.  Section 402.73, Florida Statutes, is

13  amended to read:

14         402.73  Contracting and performance standards.--

15         (1)  The Department of Children and Family Services

16  shall establish performance standards for all contracted

17  client services. Notwithstanding s. 287.057(5)(f), the

18  department must competitively procure any contract for client

19  services when any of the following occurs:

20         (a)  The provider fails to meet appropriate performance

21  standards established by the department after the provider has

22  been given a reasonable opportunity to achieve the established

23  standards.

24         (b)  A new program or service has been authorized and

25  funded by the Legislature and the annual value of the contract

26  for such program or service is $300,000 or more.

27         (c)  The department has concluded, after reviewing

28  market prices and available treatment options, that there is

29  evidence that the department can improve the performance

30  outcomes produced by its contract resources. At a minimum, the

31  department shall review market prices and available treatment

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 1  options biennially. The department shall compile the results

 2  of the biennial review and include the results in its annual

 3  performance report to the Legislature pursuant to chapter

 4  94-249, Laws of Florida. The department shall provide notice

 5  and an opportunity for public comment on its review of market

 6  prices and available treatment options.

 7         (2)  The competitive requirements of subsection (1)

 8  must be initiated for each contract that meets the criteria of

 9  this subsection, unless the secretary makes a written

10  determination that particular facts and circumstances require

11  deferral of the competitive process. Facts and circumstances

12  must be specifically described for each individual contract

13  proposed for deferral and must include one or more of the

14  following:

15         (a)  An immediate threat to the health, safety, or

16  welfare of the department's clients.

17         (b)  A threat to appropriate use or disposition of

18  facilities that have been financed in whole, or in substantial

19  part, through contracts or agreements with a state agency.

20         (c)  A threat to the service infrastructure of a

21  community which could endanger the well-being of the

22  department's clients.

23  

24  Competitive procurement of client services contracts that meet

25  the criteria in subsection (1) may not be deferred for longer

26  than 1 year.

27         (3)  The Legislature intends that the department obtain

28  services in the manner that is most cost-effective for the

29  state, that provides the greatest long-term benefits to the

30  clients receiving services, and that minimizes the disruption

31  of client services. In order to meet these legislative goals,

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 1  the department may adopt rules providing procedures for the

 2  competitive procurement of contracted client services which

 3  represent an alternative to the request-for-proposal or

 4  invitation-to-bid process. The alternative competitive

 5  procedures shall permit the department to solicit professional

 6  qualifications from prospective providers and to evaluate such

 7  statements of qualification before requesting service

 8  proposals. The department may limit the firms invited to

 9  submit service proposals to only those firms that have

10  demonstrated the highest level of professional capability to

11  provide the services under consideration, but may not invite

12  fewer than three firms to submit service proposals, unless

13  fewer than three firms submitted satisfactory statements of

14  qualification. The alternative procedures must, at a minimum,

15  allow the department to evaluate competing proposals and

16  select the proposal that provides the greatest benefit to the

17  state while considering the quality of the services,

18  dependability, and integrity of the provider, the

19  dependability of the provider's services, the experience of

20  the provider in serving target populations or client groups

21  substantially identical to members of the target population

22  for the contract in question, and the ability of the provider

23  to secure local funds to support the delivery of services,

24  including, but not limited to, funds derived from local

25  governments. These alternative procedures need not conform to

26  the requirements of s. 287.042 or s. 287.057(1) or (2).

27         (4)  The department shall review the period for which

28  it executes contracts and, to the greatest extent practicable,

29  shall execute multiyear contracts to make the most efficient

30  use of the resources devoted to contract processing and

31  execution.

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 1         (5)  When it is in the best interest of a defined

 2  segment of its consumer population, the department may

 3  competitively procure and contract for systems of treatment or

 4  service that involve multiple providers, rather than procuring

 5  and contracting for treatment or services separately from each

 6  participating provider. The department must ensure that all

 7  providers that participate in the treatment or service system

 8  meet all applicable statutory, regulatory, service-quality,

 9  and cost-control requirements. If other governmental entities

10  or units of special purpose government contribute matching

11  funds to the support of a given system of treatment or

12  service, the department shall formally request information

13  from those funding entities in the procurement process and may

14  take the information received into account in the selection

15  process. If a local government contributes match to support

16  the system of treatment or contracted service and if the match

17  constitutes at least 25 percent of the value of the contract,

18  the department shall afford the governmental match contributor

19  an opportunity to name an employee as one of the persons

20  required by s. 287.057(17) to evaluate or negotiate certain

21  contracts, unless the department sets forth in writing the

22  reason why such inclusion would be contrary to the best

23  interest of the state. Any employee so named by the

24  governmental match contributor shall qualify as one of the

25  persons required by s. 287.057(17). No governmental entity or

26  unit of special purpose government may name an employee as one

27  of the persons required by s. 287.057(17) if it, or any of its

28  political subdivisions, executive agencies, or special

29  districts, intends to compete for the contract to be awarded.

30  The governmental funding entity or match contributor shall

31  comply with any deadlines and procurement procedures

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 1  established by the department. The department may also involve

 2  nongovernmental funding entities in the procurement process

 3  when appropriate.

 4         (6)  The department may contract for or provide

 5  assessment and case management services independently from

 6  treatment services.

 7         (7)  The department shall adopt, by rule, provisions

 8  for including in its contracts incremental penalties to be

 9  imposed by its contract managers on a service provider due to

10  the provider's failure to comply with a requirement for

11  corrective action. Any financial penalty that is imposed upon

12  a provider may not be paid from funds being used to provide

13  services to clients, and the provider may not reduce the

14  amount of services being delivered to clients as a method for

15  offsetting the impact of the penalty. If a financial penalty

16  is imposed upon a provider that is a corporation, the

17  department shall notify, at a minimum, the board of directors

18  of the corporation. The department may notify, at its

19  discretion, any additional parties that the department

20  believes may be helpful in obtaining the corrective action

21  that is being sought. Further, the rules adopted by the

22  department must include provisions that permit the department

23  to deduct the financial penalties from funds that would

24  otherwise be due to the provider, not to exceed 10 percent of

25  the amount that otherwise would be due to the provider for the

26  period of noncompliance. If the department imposes a financial

27  penalty, it shall advise the provider in writing of the cause

28  for the penalty. A failure to include such deductions in a

29  request for payment constitutes a ground for the department to

30  reject that request for payment. The remedies identified in

31  this subsection do not limit or restrict the department's

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 1  application of any other remedy available to it in the

 2  contract or under law. The remedies described in this

 3  subsection may be cumulative and may be assessed upon each

 4  separate failure to comply with instructions from the

 5  department to complete corrective action.

 6         (8)  The department shall develop standards of conduct

 7  and a range of disciplinary actions for its employees which

 8  are specifically related to carrying out contracting

 9  responsibilities.

10         (1)(9)  The Agency for Persons with Disabilities

11  department must implement systems and controls to ensure

12  financial integrity and service provision quality in the

13  developmental services Medicaid waiver service system.

14         (10)  If a provider fails to meet the performance

15  standards established in the contract, the department may

16  allow a reasonable period for the provider to correct

17  performance deficiencies. If performance deficiencies are not

18  resolved to the satisfaction of the department within the

19  prescribed time, and if no extenuating circumstances can be

20  documented by the provider to the department's satisfaction,

21  the department must cancel the contract with the provider. The

22  department may not enter into a new contract with that same

23  provider for the services for which the contract was

24  previously canceled for a period of at least 24 months after

25  the date of cancellation. If an adult substance abuse services

26  provider fails to meet the performance standards established

27  in the contract, the department may allow a reasonable period,

28  not to exceed 6 months, for the provider to correct

29  performance deficiencies. If the performance deficiencies are

30  not resolved to the satisfaction of the department within 6

31  months, the department must cancel the contract with the adult

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 1  substance abuse provider, unless there is no other qualified

 2  provider in the service district.

 3         (11)  The department shall include in its standard

 4  contract document a requirement that any state funds provided

 5  for the purchase of or improvements to real property are

 6  contingent upon the contractor or political subdivision

 7  granting to the state a security interest in the property at

 8  least to the amount of the state funds provided for at least 5

 9  years from the date of purchase or the completion of the

10  improvements or as further required by law. The contract must

11  include a provision that, as a condition of receipt of state

12  funding for this purpose, the provider agrees that, if it

13  disposes of the property before the department's interest is

14  vacated, the provider will refund the proportionate share of

15  the state's initial investment, as adjusted by depreciation.

16         (12)  The department shall develop and refine

17  contracting and accountability methods that are

18  administratively efficient and that provide for optimal

19  provider performance.

20         (13)  The department may competitively procure any

21  contract when it deems it is in the best interest of the state

22  to do so. The requirements described in subsection (1) do not,

23  and may not be construed to, limit in any way the department's

24  ability to competitively procure any contract it executes, and

25  the absence of any or all of the criteria described in

26  subsection (1) may not be used as the basis for an

27  administrative or judicial protest of the department's

28  determination to conduct competition, make an award, or

29  execute any contract.

30         (14)  A contract may include cost-neutral,

31  performance-based incentives that may vary according to the

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 1  extent a provider achieves or surpasses the performance

 2  standards set forth in the contract. Such incentives may be

 3  weighted proportionally to reflect the extent to which the

 4  provider has demonstrated that it has consistently met or

 5  exceeded the contractual requirements and the department's

 6  performance standards.

 7         (2)(15)  Nothing contained in chapter 287 shall require

 8  competitive bids for health services involving examination,

 9  diagnosis, or treatment.

10         Section 3.  Section 409.1671, Florida Statutes, is

11  amended to read:

12         409.1671  Foster care and related services; outsourcing

13  privatization.--

14         (1)(a)  It is the intent of the Legislature that the

15  Department of Children and Family Services shall outsource

16  privatize the provision of foster care and related services

17  statewide. It is further the Legislature's intent to encourage

18  communities and other stakeholders in the well-being of

19  children to participate in assuring that children are safe and

20  well-nurtured. However, while recognizing that some local

21  governments are presently funding portions of certain foster

22  care and related services programs and may choose to expand

23  such funding in the future, the Legislature does not intend by

24  its outsourcing privatization of foster care and related

25  services that any county, municipality, or special district be

26  required to assist in funding programs that previously have

27  been funded by the state. Counties that provide children and

28  family services with at least 40 licensed residential group

29  care beds by July 1, 2003, and provide at least $2 million

30  annually in county general revenue funds to supplement foster

31  and family care services shall continue to contract directly

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 1  with the state and shall be exempt from the provisions of this

 2  section. Nothing in this paragraph prohibits any county,

 3  municipality, or special district from future voluntary

 4  funding participation in foster care and related services. As

 5  used in this section, the term "outsource" "privatize" means

 6  to contract with competent, community-based agencies. The

 7  department shall submit a plan to accomplish outsourcing

 8  privatization statewide, through a competitive process, phased

 9  in over a 3-year period beginning January 1, 2000. This plan

10  must be developed with local community participation,

11  including, but not limited to, input from community-based

12  providers that are currently under contract with the

13  department to furnish community-based foster care and related

14  services, and must include a methodology for determining and

15  transferring all available funds, including federal funds that

16  the provider is eligible for and agrees to earn and that

17  portion of general revenue funds which is currently associated

18  with the services that are being furnished under contract. The

19  methodology must provide for the transfer of funds

20  appropriated and budgeted for all services and programs that

21  have been incorporated into the project, including all

22  management, capital (including current furniture and

23  equipment), and administrative funds to accomplish the

24  transfer of these programs. This methodology must address

25  expected workload and at least the 3 previous years'

26  experience in expenses and workload. With respect to any

27  district or portion of a district in which outsourcing

28  privatization cannot be accomplished within the 3-year

29  timeframe, the department must clearly state in its plan the

30  reasons the timeframe cannot be met and the efforts that

31  should be made to remediate the obstacles, which may include

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 1  alternatives to total outsourcing privatization, such as

 2  public-private partnerships. As used in this section, the term

 3  "related services" includes, but is not limited to, family

 4  preservation, independent living, emergency shelter,

 5  residential group care, foster care, therapeutic foster care,

 6  intensive residential treatment, foster care supervision, case

 7  management, postplacement supervision, permanent foster care,

 8  and family reunification. Unless otherwise provided for, the

 9  state attorney shall provide child welfare legal services,

10  pursuant to chapter 39 and other relevant provisions, in

11  Pinellas and Pasco Counties. When a private nonprofit agency

12  has received case management responsibilities, transferred

13  from the state under this section, for a child who is

14  sheltered or found to be dependent and who is assigned to the

15  care of the outsourcing privatization project, the agency may

16  act as the child's guardian for the purpose of registering the

17  child in school if a parent or guardian of the child is

18  unavailable and his or her whereabouts cannot reasonably be

19  ascertained. The private nonprofit agency may also seek

20  emergency medical attention for such a child, but only if a

21  parent or guardian of the child is unavailable, his or her

22  whereabouts cannot reasonably be ascertained, and a court

23  order for such emergency medical services cannot be obtained

24  because of the severity of the emergency or because it is

25  after normal working hours. However, the provider may not

26  consent to sterilization, abortion, or termination of life

27  support. If a child's parents' rights have been terminated,

28  the nonprofit agency shall act as guardian of the child in all

29  circumstances.

30         (b)  It is the intent of the Legislature that the

31  department will continue to work towards full outsourcing

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 1  privatization in a manner that assures the viability of the

 2  community-based system of care and best provides for the

 3  safety of children in the child protection system. To this

 4  end, the department is directed to continue the process of

 5  outsourcing privatizing services in those counties in which

 6  signed startup contracts have been executed. The department

 7  may also continue to enter into startup contracts with

 8  additional counties. However, no services shall be transferred

 9  to a community-based care lead agency until the department, in

10  consultation with the local community alliance, has determined

11  and certified in writing to the Governor and the Legislature

12  that the district is prepared to transition the provision of

13  services to the lead agency and that the lead agency is ready

14  to deliver and be accountable for such service provision. In

15  making this determination, the department shall conduct a

16  readiness assessment of the district and the lead agency.

17         1.  The assessment shall evaluate the operational

18  readiness of the district and the lead agency based on:

19         a.  A set of uniform criteria, developed in

20  consultation with currently operating community-based care

21  lead agencies and reflecting national accreditation standards,

22  that evaluate programmatic, financial, technical assistance,

23  training and organizational competencies; and

24         b.  Local criteria reflective of the local

25  community-based care design and the community alliance

26  priorities.

27         2.  The readiness assessment shall be conducted by a

28  joint team of district and lead agency staff with direct

29  experience with the start up and operation of a

30  community-based care service program and representatives from

31  the appropriate community alliance. Within resources available

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 1  for this purpose, the department may secure outside audit

 2  expertise when necessary to assist a readiness assessment

 3  team.

 4         3.  Upon completion of a readiness assessment, the

 5  assessment team shall conduct an exit conference with the

 6  district and lead agency staff responsible for the transition.

 7         4.  Within 30 days following the exit conference with

 8  staff of each district and lead agency, the secretary shall

 9  certify in writing to the Governor and the Legislature that

10  both the district and the lead agency are prepared to begin

11  the transition of service provision based on the results of

12  the readiness assessment and the exit conference. The document

13  of certification must include specific evidence of readiness

14  on each element of the readiness instrument utilized by the

15  assessment team as well as a description of each element of

16  readiness needing improvement and strategies being implemented

17  to address each one.

18         (c)  The Auditor General and the Office of Program

19  Policy Analysis and Government Accountability (OPPAGA), in

20  consultation with The Child Welfare League of America and the

21  Louis de la Parte Florida Mental Health Institute, shall

22  jointly review and assess the department's process for

23  determining district and lead agency readiness.

24         1.  The review must, at a minimum, address the

25  appropriateness of the readiness criteria and instruments

26  applied, the appropriateness of the qualifications of

27  participants on each readiness assessment team, the degree to

28  which the department accurately determined each district and

29  lead agency's compliance with the readiness criteria, the

30  quality of the technical assistance provided by the department

31  to a lead agency in correcting any weaknesses identified in

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 1  the readiness assessment, and the degree to which each lead

 2  agency overcame any identified weaknesses.

 3         2.  Reports of these reviews must be submitted to the

 4  appropriate substantive and appropriations committees in the

 5  Senate and the House of Representatives on March 1 and

 6  September 1 of each year until full transition to

 7  community-based care has been accomplished statewide, except

 8  that the first report must be submitted by February 1, 2004,

 9  and must address all readiness activities undertaken through

10  June 30, 2003. The perspectives of all participants in this

11  review process must be included in each report.

12         (d)  In communities where economic or demographic

13  constraints make it impossible or not feasible to

14  competitively contract with a lead agency, the department

15  shall develop an alternative plan in collaboration with the

16  local community alliance, which may include establishing

17  innovative geographical configurations or consortia of

18  agencies. The plan must detail how the community will continue

19  to implement community-based care through competitively

20  procuring either the specific components of foster care and

21  related services or comprehensive services for defined

22  eligible populations of children and families from qualified

23  licensed agencies as part of its efforts to develop the local

24  capacity for a community-based system of coordinated care. The

25  plan must ensure local control over the management and

26  administration of the service provision in accordance with the

27  intent of this section and may include recognized best

28  business practices, including some form of public or private

29  partnerships.

30         (e)  As used in this section, the term "eligible lead

31  community-based provider" means a single agency with which the

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 1  department shall contract for the provision of child

 2  protective services in a community that is no smaller than a

 3  county. The secretary of the department may authorize more

 4  than one eligible lead community-based provider within a

 5  single county when to do so will result in more effective

 6  delivery of foster care and related services. To compete for

 7  an outsourcing a privatization project, such agency must have:

 8         1.  The ability to coordinate, integrate, and manage

 9  all child protective services in the designated community in

10  cooperation with child protective investigations.

11         2.  The ability to ensure continuity of care from entry

12  to exit for all children referred from the protective

13  investigation and court systems.

14         3.  The ability to provide directly, or contract for

15  through a local network of providers, all necessary child

16  protective services. Such agencies should directly provide no

17  more than 35 percent of all child protective services

18  provided.

19         4.  The willingness to accept accountability for

20  meeting the outcomes and performance standards related to

21  child protective services established by the Legislature and

22  the Federal Government.

23         5.  The capability and the willingness to serve all

24  children referred to it from the protective investigation and

25  court systems, regardless of the level of funding allocated to

26  the community by the state, provided all related funding is

27  transferred.

28         6.  The willingness to ensure that each individual who

29  provides child protective services completes the training

30  required of child protective service workers by the Department

31  of Children and Family Services.

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 1         7.  The ability to maintain eligibility to receive all

 2  federal child welfare funds, including Title IV-E and IV-A

 3  funds, currently being used by the Department of Children and

 4  Family Services.

 5         8.  Written agreements with Healthy Families Florida

 6  lead entities in their community, pursuant to s. 409.153, to

 7  promote cooperative planning for the provision of prevention

 8  and intervention services.

 9         9.  A board of directors, of which at least 51 percent

10  of the membership is comprised of persons residing in this

11  state. Of the state residents, at least 51 percent must also

12  reside within the service area of the lead community-based

13  provider.

14         (f)1.  The Legislature finds that the state has

15  traditionally provided foster care services to children who

16  have been the responsibility of the state. As such, foster

17  children have not had the right to recover for injuries beyond

18  the limitations specified in s. 768.28. The Legislature has

19  determined that foster care and related services need to be

20  outsourced privatized pursuant to this section and that the

21  provision of such services is of paramount importance to the

22  state. The purpose for such outsourcing privatization is to

23  increase the level of safety, security, and stability of

24  children who are or become the responsibility of the state.

25  One of the components necessary to secure a safe and stable

26  environment for such children is that private providers

27  maintain liability insurance. As such, insurance needs to be

28  available and remain available to nongovernmental foster care

29  and related services providers without the resources of such

30  providers being significantly reduced by the cost of

31  maintaining such insurance.

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 1         2.  The Legislature further finds that, by requiring

 2  the following minimum levels of insurance, children in

 3  outsourced privatized foster care and related services will

 4  gain increased protection and rights of recovery in the event

 5  of injury than provided for in s. 768.28.

 6         (g)  In any county in which a service contract has not

 7  been executed by December 31, 2004, the department shall

 8  ensure access to a model comprehensive residential services

 9  program as described in s. 409.1677 which, without imposing

10  undue financial, geographic, or other barriers, ensures

11  reasonable and appropriate participation by the family in the

12  child's program.

13         1.  In order to ensure that the program is operational

14  by December 31, 2004, the department must, by December 31,

15  2003, begin the process of establishing access to a program in

16  any county in which the department has not either entered into

17  a transition contract or approved a community plan, as

18  described in paragraph (d), which ensures full outsourcing

19  privatization by the statutory deadline.

20         2.  The program must be procured through a competitive

21  process.

22         3.  The Legislature does not intend for the provisions

23  of this paragraph to substitute for the requirement that full

24  conversion to community-based care be accomplished.

25         (h)  Other than an entity to which s. 768.28 applies,

26  any eligible lead community-based provider, as defined in

27  paragraph (e), or its employees or officers, except as

28  otherwise provided in paragraph (i), must, as a part of its

29  contract, obtain a minimum of $1 million per claim/$3 million

30  per incident in general liability insurance coverage. The

31  eligible lead community-based provider must also require that

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 1  staff who transport client children and families in their

 2  personal automobiles in order to carry out their job

 3  responsibilities obtain minimum bodily injury liability

 4  insurance in the amount of $100,000 per claim, $300,000 per

 5  incident, on their personal automobiles. In any tort action

 6  brought against such an eligible lead community-based provider

 7  or employee, net economic damages shall be limited to $1

 8  million per liability claim and $100,000 per automobile claim,

 9  including, but not limited to, past and future medical

10  expenses, wage loss, and loss of earning capacity, offset by

11  any collateral source payment paid or payable. In any tort

12  action brought against such an eligible lead community-based

13  provider, noneconomic damages shall be limited to $200,000 per

14  claim. A claims bill may be brought on behalf of a claimant

15  pursuant to s. 768.28 for any amount exceeding the limits

16  specified in this paragraph. Any offset of collateral source

17  payments made as of the date of the settlement or judgment

18  shall be in accordance with s. 768.76. The lead

19  community-based provider shall not be liable in tort for the

20  acts or omissions of its subcontractors or the officers,

21  agents, or employees of its subcontractors.

22         (i)  The liability of an eligible lead community-based

23  provider described in this section shall be exclusive and in

24  place of all other liability of such provider. The same

25  immunities from liability enjoyed by such providers shall

26  extend as well to each employee of the provider when such

27  employee is acting in furtherance of the provider's business,

28  including the transportation of clients served, as described

29  in this subsection, in privately owned vehicles. Such

30  immunities shall not be applicable to a provider or an

31  employee who acts in a culpably negligent manner or with

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 1  willful and wanton disregard or unprovoked physical aggression

 2  when such acts result in injury or death or such acts

 3  proximately cause such injury or death; nor shall such

 4  immunities be applicable to employees of the same provider

 5  when each is operating in the furtherance of the provider's

 6  business, but they are assigned primarily to unrelated works

 7  within private or public employment. The same immunity

 8  provisions enjoyed by a provider shall also apply to any sole

 9  proprietor, partner, corporate officer or director,

10  supervisor, or other person who in the course and scope of his

11  or her duties acts in a managerial or policymaking capacity

12  and the conduct that caused the alleged injury arose within

13  the course and scope of those managerial or policymaking

14  duties. Culpable negligence is defined as reckless

15  indifference or grossly careless disregard of human life.

16         (j)  Any subcontractor of an eligible lead

17  community-based provider, as defined in paragraph (e), which

18  is a direct provider of foster care and related services to

19  children and families, and its employees or officers, except

20  as otherwise provided in paragraph (i), must, as a part of its

21  contract, obtain a minimum of $1 million per claim/$3 million

22  per incident in general liability insurance coverage. The

23  subcontractor of an eligible lead community-based provider

24  must also require that staff who transport client children and

25  families in their personal automobiles in order to carry out

26  their job responsibilities obtain minimum bodily injury

27  liability insurance in the amount of $100,000 per claim,

28  $300,000 per incident, on their personal automobiles. In any

29  tort action brought against such subcontractor or employee,

30  net economic damages shall be limited to $1 million per

31  liability claim and $100,000 per automobile claim, including,

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 1  but not limited to, past and future medical expenses, wage

 2  loss, and loss of earning capacity, offset by any collateral

 3  source payment paid or payable. In any tort action brought

 4  against such subcontractor, noneconomic damages shall be

 5  limited to $200,000 per claim. A claims bill may be brought on

 6  behalf of a claimant pursuant to s. 768.28 for any amount

 7  exceeding the limits specified in this paragraph. Any offset

 8  of collateral source payments made as of the date of the

 9  settlement or judgment shall be in accordance with s. 768.76.

10         (k)  The liability of a subcontractor of an eligible

11  lead community-based provider that is a direct provider of

12  foster care and related services as described in this section

13  shall be exclusive and in place of all other liability of such

14  provider. The same immunities from liability enjoyed by such

15  subcontractor provider shall extend as well to each employee

16  of the subcontractor when such employee is acting in

17  furtherance of the subcontractor's business, including the

18  transportation of clients served, as described in this

19  subsection, in privately owned vehicles. Such immunities shall

20  not be applicable to a subcontractor or an employee who acts

21  in a culpably negligent manner or with willful and wanton

22  disregard or unprovoked physical aggression when such acts

23  result in injury or death or such acts proximately cause such

24  injury or death; nor shall such immunities be applicable to

25  employees of the same subcontractor when each is operating in

26  the furtherance of the subcontractor's business, but they are

27  assigned primarily to unrelated works within private or public

28  employment. The same immunity provisions enjoyed by a

29  subcontractor shall also apply to any sole proprietor,

30  partner, corporate officer or director, supervisor, or other

31  person who in the course and scope of his or her duties acts

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 1  in a managerial or policymaking capacity and the conduct that

 2  caused the alleged injury arose within the course and scope of

 3  those managerial or policymaking duties. Culpable negligence

 4  is defined as reckless indifference or grossly careless

 5  disregard of human life.

 6         (l)  The Legislature is cognizant of the increasing

 7  costs of goods and services each year and recognizes that

 8  fixing a set amount of compensation actually has the effect of

 9  a reduction in compensation each year. Accordingly, the

10  conditional limitations on damages in this section shall be

11  increased at the rate of 5 percent each year, prorated from

12  the effective date of this paragraph to the date at which

13  damages subject to such limitations are awarded by final

14  judgment or settlement.

15         (2)(a)  The department may contract for the delivery,

16  administration, or management of protective services, the

17  services specified in subsection (1) relating to foster care,

18  and other related services or programs, as appropriate. The

19  department shall retain responsibility for the quality of

20  contracted services and programs and shall ensure that

21  services are delivered in accordance with applicable federal

22  and state statutes and regulations. The department must adopt

23  written policies and procedures for monitoring the contract

24  for delivery of services by lead community-based providers.

25  These policies and procedures must, at a minimum, address the

26  evaluation of fiscal accountability and program operations,

27  including provider achievement of performance standards,

28  provider monitoring of subcontractors, and timely followup of

29  corrective actions for significant monitoring findings related

30  to providers and subcontractors. These policies and procedures

31  must also include provisions for reducing the duplication of

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 1  the department's program monitoring activities both internally

 2  and with other agencies, to the extent possible. The

 3  department's written procedures must ensure that the written

 4  findings, conclusions, and recommendations from monitoring the

 5  contract for services of lead community-based providers are

 6  communicated to the director of the provider agency as

 7  expeditiously as possible.

 8         (b)  Persons employed by the department in the

 9  provision of foster care and related services whose positions

10  are being outsourced under privatized pursuant to this statute

11  shall be given hiring preference by the provider, if provider

12  qualifications are met.

13         (3)(a)  In order to help ensure a seamless child

14  protection system, the department shall ensure that contracts

15  entered into with community-based agencies pursuant to this

16  section include provisions for a case-transfer process to

17  determine the date that the community-based agency will

18  initiate the appropriate services for a child and family. This

19  case-transfer process must clearly identify the closure of the

20  protective investigation and the initiation of service

21  provision. At the point of case transfer, and at the

22  conclusion of an investigation, the department must provide a

23  complete summary of the findings of the investigation to the

24  community-based agency.

25         (b)  The contracts must also ensure that each

26  community-based agency shall furnish information on its

27  activities in all cases in client case records.

28         (c)  The contract between the department and

29  community-based agencies must include provisions that specify

30  the procedures to be used by the parties to resolve

31  differences in interpreting the contract or to resolve

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 1  disputes as to the adequacy of the parties' compliance with

 2  their respective obligations under the contract.

 3         (d)  Each contract with an eligible lead

 4  community-based provider shall provide for the payment by the

 5  department to the provider of a reasonable administrative cost

 6  in addition to funding for the provision of services.

 7         (e)  Each contract with an eligible lead

 8  community-based provider must include all performance outcome

 9  measures established by the Legislature and that are under the

10  control of the lead agency. The standards must be adjusted

11  annually by contract amendment to enable the department to

12  meet the legislatively established statewide standards.

13         (4)(a)  The department, in consultation with the

14  community-based agencies that are undertaking the outsourced

15  privatized projects, shall establish a quality assurance

16  program for privatized services. The quality assurance program

17  shall be based on standards established by the Adoption and

18  Safe Families Act as well as by a national accrediting

19  organization such as the Council on Accreditation of Services

20  for Families and Children, Inc. (COA) or CARF--the

21  Rehabilitation Accreditation Commission. Each program operated

22  under contract with a community-based agency must be evaluated

23  annually by the department. The department shall, to the

24  extent possible, use independent financial audits provided by

25  the community-based care agency to eliminate or reduce the

26  ongoing contract and administrative reviews conducted by the

27  department. The department may suggest additional items to be

28  included in such independent financial audits to meet the

29  department's needs. Should the department determine that such

30  independent financial audits are inadequate, then other

31  audits, as necessary, may be conducted by the department.

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 1  Nothing herein shall abrogate the requirements of s. 215.97.

 2  The department shall submit an annual report regarding quality

 3  performance, outcome measure attainment, and cost efficiency

 4  to the President of the Senate, the Speaker of the House of

 5  Representatives, the minority leader of each house of the

 6  Legislature, and the Governor no later than January 31 of each

 7  year for each project in operation during the preceding fiscal

 8  year.

 9         (b)  The department shall use these findings in making

10  recommendations to the Governor and the Legislature for future

11  program and funding priorities in the child welfare system.

12         (5)(a)  The community-based agency must comply with

13  statutory requirements and agency rules in the provision of

14  contractual services. Each foster home, therapeutic foster

15  home, emergency shelter, or other placement facility operated

16  by the community-based agency or agencies must be licensed by

17  the Department of Children and Family Services under chapter

18  402 or this chapter. Each community-based agency must be

19  licensed as a child-caring or child-placing agency by the

20  department under this chapter. The department, in order to

21  eliminate or reduce the number of duplicate inspections by

22  various program offices, shall coordinate inspections required

23  pursuant to licensure of agencies under this section.

24         (b)  Substitute care providers who are licensed under

25  s. 409.175 and have contracted with a lead agency authorized

26  under this section shall also be authorized to provide

27  registered or licensed family day care under s. 402.313, if

28  consistent with federal law and if the home has met the

29  requirements of s. 402.313.

30         (c)  A dually licensed home under this section shall be

31  eligible to receive both an out-of-home care payment and a

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 1  subsidized child care payment for the same child pursuant to

 2  federal law. The department may adopt administrative rules

 3  necessary to administer this paragraph.

 4         (6)  Beginning January 1, 1999, and continuing at least

 5  through June 30, 2000, the Department of Children and Family

 6  Services shall outsource privatize all foster care and related

 7  services in district 5 while continuing to contract with the

 8  current model programs in districts 1, 4, and 13, and in

 9  subdistrict 8A, and shall expand the subdistrict 8A pilot

10  program to incorporate Manatee County. Planning for the

11  district 5 outsourcing privatization shall be done by

12  providers that are currently under contract with the

13  department for foster care and related services and shall be

14  done in consultation with the department.  A lead provider of

15  the district 5 program shall be competitively selected, must

16  demonstrate the ability to provide necessary comprehensive

17  services through a local network of providers, and must meet

18  criteria established in this section. Contracts with

19  organizations responsible for the model programs must include

20  the management and administration of all outsourced privatized

21  services specified in subsection (1). However, the department

22  may use funds for contract management only after obtaining

23  written approval from the Executive Office of the Governor.

24  The request for such approval must include, but is not limited

25  to, a statement of the proposed amount of such funds and a

26  description of the manner in which such funds will be used. If

27  the community-based organization selected for a model program

28  under this subsection is not a Medicaid provider, the

29  organization shall be issued a Medicaid provider number

30  pursuant to s. 409.907 for the provision of services currently

31  authorized under the state Medicaid plan to those children

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 1  encompassed in this model and in a manner not to exceed the

 2  current level of state expenditure.

 3         (7)  The Florida Coalition for Children, Inc., in

 4  consultation with the department, shall develop a plan based

 5  on an independent actuarial study regarding the long-term use

 6  and structure of a statewide community-based care risk pool

 7  for the protection of eligible lead community-based providers,

 8  their subcontractors, and providers of other social services

 9  who contract directly with the department. The plan must also

10  outline strategies to maximize federal earnings as they relate

11  to the community-based care risk pool. At a minimum, the plan

12  must allow for the use of federal earnings received from child

13  welfare programs to be allocated to the community-based care

14  risk pool by the department, which earnings are determined by

15  the department to be in excess of the amount appropriated in

16  the General Appropriations Act. The plan must specify the

17  necessary steps to ensure the financial integrity and

18  industry-standard risk management practices of the

19  community-based care risk pool and the continued availability

20  of funding from federal, state, and local sources. The plan

21  must also include recommendations that permit the program to

22  be available to entities of the department providing child

23  welfare services until full conversion to community-based care

24  takes place. The final plan shall be submitted to the

25  department and then to the Executive Office of the Governor

26  and the Legislative Budget Commission for formal adoption

27  before January 1, 2005. Upon approval of the plan by all

28  parties, the department shall issue an interest-free loan that

29  is secured by the cumulative contractual revenue of the

30  community-based care risk pool membership, and the amount of

31  the loan shall equal the amount appropriated by the

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 1  Legislature for this purpose. The plan shall provide for a

 2  governance structure that assures the department the ability

 3  to oversee the operation of the community-based care risk pool

 4  at least until this loan is repaid in full.

 5         (a)  The purposes for which the community-based care

 6  risk pool shall be used include, but are not limited to:

 7         1.  Significant changes in the number or composition of

 8  clients eligible to receive services.

 9         2.  Significant changes in the services that are

10  eligible for reimbursement.

11         3.  Scheduled or unanticipated, but necessary, advances

12  to providers or other cash-flow issues.

13         4.  Proposals to participate in optional Medicaid

14  services or other federal grant opportunities.

15         5.  Appropriate incentive structures.

16         6.  Continuity of care in the event of failure,

17  discontinuance of service, or financial misconduct by a lead

18  agency.

19         7.  Payment for time-limited technical assistance and

20  consultation to lead agencies in the event of serious

21  performance or management problems.

22         8.  Payment for meeting all traditional and

23  nontraditional insurance needs of eligible members.

24         9.  Significant changes in the mix of available funds.

25         (b)  After approval of the plan in the 2004-2005 fiscal

26  year and annually thereafter, the department may also request

27  in its annual legislative budget request, and the Governor may

28  recommend, that the funding necessary to carry out paragraph

29  (a) be appropriated to the department. Subsequent funding of

30  the community-based care risk pool shall be supported by

31  premiums assessed to members of the community-based care risk

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 1  pool on a recurring basis. The community-based care risk pool

 2  may invest and retain interest earned on these funds. In

 3  addition, the department may transfer funds to the

 4  community-based care risk pool as available in order to ensure

 5  an adequate funding level if the fund is declared to be

 6  insolvent and approval is granted by the Legislative Budget

 7  Commission. Such payments for insolvency shall be made only

 8  after a determination is made by the department or its actuary

 9  that all participants in the community-based care risk pool

10  are current in their payments of premiums and that assessments

11  have been made at an actuarially sound level. Such payments by

12  participants in the community-based care risk pool may not

13  exceed reasonable industry standards, as determined by the

14  actuary. Money from this fund may be used to match available

15  federal dollars. Dividends or other payments, with the

16  exception of legitimate claims, may not be paid to members of

17  the community-based care risk pool until the loan issued by

18  the department is repaid in full. Dividends or other payments,

19  with the exception of legitimate claims and other purposes

20  contained in the approved plan, may not be paid to members of

21  the community-based care risk pool unless, at the time of

22  distribution, the community-based care risk pool is deemed

23  actuarially sound and solvent. Solvency shall be determined by

24  an independent actuary contracted by the department. The plan

25  shall be developed in consultation with the Office of

26  Insurance Regulation.

27         1.  Such funds shall constitute partial security for

28  contract performance by lead agencies and shall be used to

29  offset the need for a performance bond. Subject to the

30  approval of the plan, the community-based care risk pool shall

31  be managed by the Florida Coalition for Children, Inc., or the

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 1  designated contractors of the Florida Coalition for Children,

 2  Inc. Nonmembers of the community-based care risk pool may

 3  continue to contract with the department but must provide a

 4  letter of credit equal to one-twelfth of the annual contract

 5  amount in lieu of membership in the community-based care risk

 6  pool.

 7         2.  The department may separately require a bond to

 8  mitigate the financial consequences of potential acts of

 9  malfeasance, misfeasance, or criminal violations by the

10  provider.

11         (8)  Notwithstanding the provisions of s. 215.425, all

12  documented federal funds earned for the current fiscal year by

13  the department and community-based agencies which exceed the

14  amount appropriated by the Legislature shall be distributed to

15  all entities that contributed to the excess earnings based on

16  a schedule and methodology developed by the department and

17  approved by the Executive Office of the Governor. Distribution

18  shall be pro rata based on total earnings and shall be made

19  only to those entities that contributed to excess earnings.

20  Excess earnings of community-based agencies shall be used only

21  in the service district in which they were earned. Additional

22  state funds appropriated by the Legislature for

23  community-based agencies or made available pursuant to the

24  budgetary amendment process described in s. 216.177 shall be

25  transferred to the community-based agencies. The department

26  shall amend a community-based agency's contract to permit

27  expenditure of the funds.

28         (9)  Each district and subdistrict that participates in

29  the model program effort or any future outsourcing

30  privatization effort as described in this section must

31  thoroughly analyze and report the complete direct and indirect

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 1  costs of delivering these services through the department and

 2  the full cost of outsourcing privatization, including the cost

 3  of monitoring and evaluating the contracted services.

 4         (10)  The lead community-based providers and their

 5  subcontractors shall be exempt from state travel policies as

 6  set forth in s. 112.061(3)(a) for their travel expenses

 7  incurred in order to comply with the requirements of this

 8  section.

 9         Section 4.  The Office of Program Policy Analysis and

10  Government Accountability shall conduct two reviews of the

11  contract-management and accountability structures of the

12  Department of Children and Family Services, including, but not

13  limited to, whether the department is adequately monitoring

14  and managing its outsourced or privatized functions and

15  services. The office shall report its findings and

16  recommendations to the President of the Senate, the Speaker of

17  the House of Representatives, and the Auditor General by

18  February 1 of 2006 and 2007, respectively.

19         Section 5.  Section 402.72, Florida Statutes, is

20  repealed.

21         Section 6.  The nonrecurring sum of $102,232 is

22  appropriated from the General Revenue Fund to the Department

23  of Children and Family Services for the 2005-2006 fiscal year,

24  to comply with the electronic-reporting requirements in

25  section 1 of this act.

26         Section 7.  This act shall take effect July 1, 2005.

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                  CS for CS for Senate Bill 1476

 3                                 

 4  
      -  Requires the Department of Children and Family Services
 5       to justify, in the contract, a decision not to use
         multiyear contracts. This provision applies to contracts
 6       in excess of $250,000.

 7    -  Clarifies that the verifications required when a contract
         is extended or renewed shall be based on the best
 8       available data at the point of contract renegotiations.

 9    -  Prohibits contractors from supervising state employees
         and from participating in any procurement process in
10       which the contractor has a material interest.

11    -  Appropriates $102,232 from non-recurring general revenue
         funds to the Department of Children and Family Services
12       for Fiscal Year 2005-2006 to fund the electronic
         reporting requirements mandated in this legislation.
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                                  51

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

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