September 15, 2019
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190073
  Amendment
Bill No. 1476
Amendment No. 190073
CHAMBER ACTION
Senate House
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1Representative(s) Galvano offered the following:
2
3     Amendment (with title amendment)
4     On page 2, line(s) 2,
5remove:  everything after the enacting clause
6
7and insert:
8     Section 1.  Department of Children and Family Services;
9procurement of contractual services; contract management.--
10     (1)  DEFINITIONS.--As used in this section, the term:
11     (a)  "Contract manager" means the department employee who
12is responsible for enforcing the compliance with administrative
13and programmatic terms and conditions of a contract. The
14contract manager is the primary point of contact through which
15all contracting information flows between the department and the
16contractor. The contract manager is responsible for day-to-day
17contract oversight, including approval of contract deliverables
18and invoices. All actions related to the contract shall be
19initiated by or coordinated with the contract manager. The
20contract manager maintains the official contract files.
21     (b)  "Contract monitor" means the department employee who
22is responsible for observing, recording, and reporting to the
23contract manager and other designated entities the information
24necessary to assist the contract manager and program management
25in determining whether the contractor is in compliance with the
26administrative and programmatic terms and conditions of the
27contract.
28     (c)  "Department" means the Department of Children and
29Family Services.
30     (d)  "Outsourcing" means the process of contracting with an
31external service provider to provide a service, in whole or in
32part, while the department retains the responsibility and
33accountability for the service.
34     (2)  PROCUREMENT OF COMMODITIES AND CONTRACTUAL SERVICES.--
35     (a)  Notwithstanding section 287.057(5)(f)13., Florida
36Statutes, whenever the department intends to contract with a
37public postsecondary institution to provide a service, the
38department must allow all public postsecondary institutions in
39this state that are accredited by the Southern Association of
40Colleges and Schools to bid on the contract. Thereafter,
41notwithstanding any other provision to the contrary, if a public
42postsecondary institution intends to subcontract for any service
43awarded in the contract, the subcontracted service must be
44procured by competitive procedures.
45     (b)  When it is in the best interest of a defined segment
46of its consumer population, the department may competitively
47procure and contract for systems of treatment or service that
48involve multiple providers, rather than procuring and
49contracting for treatment or services separately from each
50participating provider. The department must ensure that all
51providers that participate in the treatment or service system
52meet all applicable statutory, regulatory, service-quality, and
53cost-control requirements. If other governmental entities or
54units of special purpose government contribute matching funds to
55the support of a given system of treatment or service, the
56department shall formally request information from those funding
57entities in the procurement process and may take the information
58received into account in the selection process. If a local
59government contributes matching funds to support the system of
60treatment or contracted service and if the match constitutes at
61least 25 percent of the value of the contract, the department
62shall afford the governmental match contributor an opportunity
63to name an employee as one of the persons required by section
64287.057(17), Florida Statutes, to evaluate or negotiate certain
65contracts, unless the department sets forth in writing the
66reason why the inclusion would be contrary to the best interest
67of the state. Any employee so named by the governmental match
68contributor shall qualify as one of the persons required by
69section 287.057(17), Florida Statutes. A governmental entity or
70unit of special purpose government may not name an employee as
71one of the persons required by section 287.057(17), Florida
72Statutes, if it, or any of its political subdivisions, executive
73agencies, or special districts, intends to compete for the
74contract to be awarded. The governmental funding entity or
75contributor of matching funds must comply with all procurement
76procedures set forth in section 287.057, Florida Statutes, when
77appropriate and required.
78     (c)  The department may procure and contract for or provide
79assessment and case-management services independently from
80treatment services.
81     (3)  CONTRACT-MANAGEMENT REQUIREMENTS AND PROCESS.-- The
82Department of Children and Family Services shall review the time
83period for which the department executes contracts and shall
84execute multiyear contracts to make the most efficient use of
85the resources devoted to contract processing and execution.
86Whenever the department chooses not to use a multiyear contract,
87a justification for that decision must be contained in the
88contract. Notwithstanding section 287.057(15), Florida Statutes,
89the department is responsible for establishing a contract-
90management process that requires a member of the department's
91Senior Management or Select Exempt Service to assign in writing
92the responsibility of a contract to a contract manager. The
93department shall maintain a set of procedures describing its
94contract-management process which must minimally include the
95following requirements:
96     (a)  The contract manager shall maintain the official
97contract file throughout the duration of the contract and for a
98period not less than 6 years after the termination of the
99contract.
100     (b)  The contract manager shall review all invoices for
101compliance with the criteria and payment schedule provided for
102in the contract and shall approve payment of all invoices before
103their transmission to the Department of Financial Services for
104payment.
105     (c)  The contract manager shall maintain a schedule of
106payments and total amounts disbursed and shall periodically
107reconcile the records with the state's official accounting
108records.
109     (d)  For contracts involving the provision of direct client
110services, the contract manager shall periodically visit the
111physical location where the services are delivered and speak
112directly to clients receiving the services and the staff
113responsible for delivering the services.
114     (e)  The contract manager shall meet at least once a month
115directly with the contractor's representative and maintain
116records of such meetings.
117     (f)  The contract manager shall periodically document any
118differences between the required performance measures and the
119actual performance measures. If a contractor fails to meet and
120comply with the performance measures established in the
121contract, the department may allow a reasonable period for the
122contractor to correct performance deficiencies. If performance
123deficiencies are not resolved to the satisfaction of the
124department within the prescribed time, and if no extenuating
125circumstances can be documented by the contractor to the
126department's satisfaction, the department must terminate the
127contract. The department may not enter into a new contract with
128that same contractor for the services for which the contract was
129previously terminated for a period of at least 24 months after
130the date of termination. The contract manager shall obtain and
131enforce corrective-action plans, if appropriate, and maintain
132records regarding the completion or failure to complete
133corrective-action items.
134     (g)  The contract manager shall document any contract
135modifications, which shall include recording any contract
136amendments as provided for in this section.
137     (h)  The contract manager shall be properly trained before
138being assigned responsibility for any contract.
139     (4)  CONTRACT MONITORING REQUIREMENTS AND PROCESS.--The
140department shall establish contract monitoring units staffed by
141career service employees who report to a member of the Select
142Exempt Service or Senior Management Service and who have been
143properly trained to perform contract monitoring, with at least
144one member of the contract monitoring unit possessing specific
145knowledge and experience in the contract's program area. The
146department shall establish a contract-monitoring process that
147must include, but need not be limited to, the following
148requirements:
149     (a)  Performing a risk assessment at the start of each
150fiscal year and preparing an annual contract monitoring schedule
151that includes consideration for the level of risk assigned. The
152department may monitor any contract at any time regardless of
153whether such monitoring was originally included in the annual
154contract-monitoring schedule.
155     (b)  Preparing a contract monitoring plan, including
156sampling procedures, before performing on site monitoring at
157external locations of a service provider. The plan must include
158a description of the programmatic, fiscal, and administrative
159components that will be monitored on site. If appropriate,
160clinical and therapeutic components may be included.
161     (c)  Conducting analyses of the performance and compliance
162of an external service provider by means of desk reviews if the
163external service provider will not be monitored on site during a
164fiscal year.
165     (d)  Unless the department sets forth in writing the need
166for an extension, providing a written report presenting the
167results of the monitoring within 30 days after the completion of
168the on-site monitoring or desk review.
169     (e)  Developing and maintaining a set of procedures
170describing the contract-monitoring process.
171     Section 2.  Section 402.73, Florida Statutes, is amended to
172read:
173     402.73  Contracting and performance standards.--
174     (1)  The Department of Children and Family Services shall
175establish performance standards for all contracted client
176services. Notwithstanding s. 287.057(5)(f), the department must
177competitively procure any contract for client services when any
178of the following occurs:
179     (a)  The provider fails to meet appropriate performance
180standards established by the department after the provider has
181been given a reasonable opportunity to achieve the established
182standards.
183     (b)  A new program or service has been authorized and
184funded by the Legislature and the annual value of the contract
185for such program or service is $300,000 or more.
186     (c)  The department has concluded, after reviewing market
187prices and available treatment options, that there is evidence
188that the department can improve the performance outcomes
189produced by its contract resources. At a minimum, the department
190shall review market prices and available treatment options
191biennially. The department shall compile the results of the
192biennial review and include the results in its annual
193performance report to the Legislature pursuant to chapter 94-
194249, Laws of Florida. The department shall provide notice and an
195opportunity for public comment on its review of market prices
196and available treatment options.
197     (2)  The competitive requirements of subsection (1) must be
198initiated for each contract that meets the criteria of this
199subsection, unless the secretary makes a written determination
200that particular facts and circumstances require deferral of the
201competitive process. Facts and circumstances must be
202specifically described for each individual contract proposed for
203deferral and must include one or more of the following:
204     (a)  An immediate threat to the health, safety, or welfare
205of the department's clients.
206     (b)  A threat to appropriate use or disposition of
207facilities that have been financed in whole, or in substantial
208part, through contracts or agreements with a state agency.
209     (c)  A threat to the service infrastructure of a community
210which could endanger the well-being of the department's clients.
211
212Competitive procurement of client services contracts that meet
213the criteria in subsection (1) may not be deferred for longer
214than 1 year.
215     (3)  The Legislature intends that the department obtain
216services in the manner that is most cost-effective for the
217state, that provides the greatest long-term benefits to the
218clients receiving services, and that minimizes the disruption of
219client services. In order to meet these legislative goals, the
220department may adopt rules providing procedures for the
221competitive procurement of contracted client services which
222represent an alternative to the request-for-proposal or
223invitation-to-bid process. The alternative competitive
224procedures shall permit the department to solicit professional
225qualifications from prospective providers and to evaluate such
226statements of qualification before requesting service proposals.
227The department may limit the firms invited to submit service
228proposals to only those firms that have demonstrated the highest
229level of professional capability to provide the services under
230consideration, but may not invite fewer than three firms to
231submit service proposals, unless fewer than three firms
232submitted satisfactory statements of qualification. The
233alternative procedures must, at a minimum, allow the department
234to evaluate competing proposals and select the proposal that
235provides the greatest benefit to the state while considering the
236quality of the services, dependability, and integrity of the
237provider, the dependability of the provider's services, the
238experience of the provider in serving target populations or
239client groups substantially identical to members of the target
240population for the contract in question, and the ability of the
241provider to secure local funds to support the delivery of
242services, including, but not limited to, funds derived from
243local governments. These alternative procedures need not conform
244to the requirements of s. 287.042 or s. 287.057(1) or (2).
245     (4)  The department shall review the period for which it
246executes contracts and, to the greatest extent practicable,
247shall execute multiyear contracts to make the most efficient use
248of the resources devoted to contract processing and execution.
249     (5)  When it is in the best interest of a defined segment
250of its consumer population, the department may competitively
251procure and contract for systems of treatment or service that
252involve multiple providers, rather than procuring and
253contracting for treatment or services separately from each
254participating provider. The department must ensure that all
255providers that participate in the treatment or service system
256meet all applicable statutory, regulatory, service-quality, and
257cost-control requirements. If other governmental entities or
258units of special purpose government contribute matching funds to
259the support of a given system of treatment or service, the
260department shall formally request information from those funding
261entities in the procurement process and may take the information
262received into account in the selection process. If a local
263government contributes match to support the system of treatment
264or contracted service and if the match constitutes at least 25
265percent of the value of the contract, the department shall
266afford the governmental match contributor an opportunity to name
267an employee as one of the persons required by s. 287.057(17) to
268evaluate or negotiate certain contracts, unless the department
269sets forth in writing the reason why such inclusion would be
270contrary to the best interest of the state. Any employee so
271named by the governmental match contributor shall qualify as one
272of the persons required by s. 287.057(17). No governmental
273entity or unit of special purpose government may name an
274employee as one of the persons required by s. 287.057(17) if it,
275or any of its political subdivisions, executive agencies, or
276special districts, intends to compete for the contract to be
277awarded. The governmental funding entity or match contributor
278shall comply with any deadlines and procurement procedures
279established by the department. The department may also involve
280nongovernmental funding entities in the procurement process when
281appropriate.
282     (6)  The department may contract for or provide assessment
283and case management services independently from treatment
284services.
285     (1)(7)  The Department of Children and Family Services
286shall adopt, by rule, provisions for including in its contracts
287incremental penalties to be imposed by its contract managers on
288a service provider due to the provider's failure to comply with
289a requirement for corrective action. Any financial penalty that
290is imposed upon a provider may not be paid from funds being used
291to provide services to clients, and the provider may not reduce
292the amount of services being delivered to clients as a method
293for offsetting the impact of the penalty. If a financial penalty
294is imposed upon a provider that is a corporation, the department
295shall notify, at a minimum, the board of directors of the
296corporation. The department may notify, at its discretion, any
297additional parties that the department believes may be helpful
298in obtaining the corrective action that is being sought.
299Further, the rules adopted by the department must include
300provisions that permit the department to deduct the financial
301penalties from funds that would otherwise be due to the
302provider, not to exceed 10 percent of the amount that otherwise
303would be due to the provider for the period of noncompliance. If
304the department imposes a financial penalty, it shall advise the
305provider in writing of the cause for the penalty. A failure to
306include such deductions in a request for payment constitutes a
307ground for the department to reject that request for payment.
308The remedies identified in this subsection do not limit or
309restrict the department's application of any other remedy
310available to it in the contract or under law. The remedies
311described in this subsection may be cumulative and may be
312assessed upon each separate failure to comply with instructions
313from the department to complete corrective action.
314     (8)  The department shall develop standards of conduct and
315a range of disciplinary actions for its employees which are
316specifically related to carrying out contracting
317responsibilities.
318     (2)(9)  The Agency for Persons with Disabilities department
319must implement systems and controls to ensure financial
320integrity and service provision quality in the developmental
321services Medicaid waiver service system.
322     (10)  If a provider fails to meet the performance standards
323established in the contract, the department may allow a
324reasonable period for the provider to correct performance
325deficiencies. If performance deficiencies are not resolved to
326the satisfaction of the department within the prescribed time,
327and if no extenuating circumstances can be documented by the
328provider to the department's satisfaction, the department must
329cancel the contract with the provider. The department may not
330enter into a new contract with that same provider for the
331services for which the contract was previously canceled for a
332period of at least 24 months after the date of cancellation. If
333an adult substance abuse services provider fails to meet the
334performance standards established in the contract, the
335department may allow a reasonable period, not to exceed 6
336months, for the provider to correct performance deficiencies. If
337the performance deficiencies are not resolved to the
338satisfaction of the department within 6 months, the department
339must cancel the contract with the adult substance abuse
340provider, unless there is no other qualified provider in the
341service district.
342     (3)(11)  The department shall include in its standard
343contract document a requirement that any state funds provided
344for the purchase of or improvements to real property are
345contingent upon the contractor or political subdivision granting
346to the state a security interest in the property at least to the
347amount of the state funds provided for at least 5 years from the
348date of purchase or the completion of the improvements or as
349further required by law. The contract must include a provision
350that, as a condition of receipt of state funding for this
351purpose, the provider agrees that, if it disposes of the
352property before the department's interest is vacated, the
353provider will refund the proportionate share of the state's
354initial investment, as adjusted by depreciation.
355     (12)  The department shall develop and refine contracting
356and accountability methods that are administratively efficient
357and that provide for optimal provider performance.
358     (13)  The department may competitively procure any contract
359when it deems it is in the best interest of the state to do so.
360The requirements described in subsection (1) do not, and may not
361be construed to, limit in any way the department's ability to
362competitively procure any contract it executes, and the absence
363of any or all of the criteria described in subsection (1) may
364not be used as the basis for an administrative or judicial
365protest of the department's determination to conduct
366competition, make an award, or execute any contract.
367     (14)  A contract may include cost-neutral, performance-
368based incentives that may vary according to the extent a
369provider achieves or surpasses the performance standards set
370forth in the contract. Such incentives may be weighted
371proportionally to reflect the extent to which the provider has
372demonstrated that it has consistently met or exceeded the
373contractual requirements and the department's performance
374standards.
375     (4)(15)  Nothing contained in chapter 287 shall require
376competitive bids for health services involving examination,
377diagnosis, or treatment.
378     Section 3.  Section 409.1671, Florida Statutes, is amended
379to read:
380     409.1671  Foster care and related services; outsourcing
381privatization.--
382     (1)(a)  It is the intent of the Legislature that the
383Department of Children and Family Services shall outsource
384privatize the provision of foster care and related services
385statewide. It is further the Legislature's intent to encourage
386communities and other stakeholders in the well-being of children
387to participate in assuring that children are safe and well-
388nurtured. However, while recognizing that some local governments
389are presently funding portions of certain foster care and
390related services programs and may choose to expand such funding
391in the future, the Legislature does not intend by its
392outsourcing privatization of foster care and related services
393that any county, municipality, or special district be required
394to assist in funding programs that previously have been funded
395by the state. Counties that provide children and family services
396with at least 40 licensed residential group care beds by July 1,
3972003, and provide at least $2 million annually in county general
398revenue funds to supplement foster and family care services
399shall continue to contract directly with the state and shall be
400exempt from the provisions of this section. Nothing in this
401paragraph prohibits any county, municipality, or special
402district from future voluntary funding participation in foster
403care and related services. As used in this section, the term
404"outsource" "privatize" means to contract with competent,
405community-based agencies. The department shall submit a plan to
406accomplish outsourcing privatization statewide, through a
407competitive process, phased in over a 3-year period beginning
408January 1, 2000. This plan must be developed with local
409community participation, including, but not limited to, input
410from community-based providers that are currently under contract
411with the department to furnish community-based foster care and
412related services, and must include a methodology for determining
413and transferring all available funds, including federal funds
414that the provider is eligible for and agrees to earn and that
415portion of general revenue funds which is currently associated
416with the services that are being furnished under contract. The
417methodology must provide for the transfer of funds appropriated
418and budgeted for all services and programs that have been
419incorporated into the project, including all management, capital
420(including current furniture and equipment), and administrative
421funds to accomplish the transfer of these programs. This
422methodology must address expected workload and at least the 3
423previous years' experience in expenses and workload. With
424respect to any district or portion of a district in which
425outsourcing privatization cannot be accomplished within the 3-
426year timeframe, the department must clearly state in its plan
427the reasons the timeframe cannot be met and the efforts that
428should be made to remediate the obstacles, which may include
429alternatives to total outsourcing privatization, such as public-
430private partnerships. As used in this section, the term "related
431services" includes, but is not limited to, family preservation,
432independent living, emergency shelter, residential group care,
433foster care, therapeutic foster care, intensive residential
434treatment, foster care supervision, case management,
435postplacement supervision, permanent foster care, and family
436reunification. Unless otherwise provided for, the state attorney
437shall provide child welfare legal services, pursuant to chapter
43839 and other relevant provisions, in Pinellas and Pasco
439Counties. When a private nonprofit agency has received case
440management responsibilities, transferred from the state under
441this section, for a child who is sheltered or found to be
442dependent and who is assigned to the care of the outsourcing
443privatization project, the agency may act as the child's
444guardian for the purpose of registering the child in school if a
445parent or guardian of the child is unavailable and his or her
446whereabouts cannot reasonably be ascertained. The private
447nonprofit agency may also seek emergency medical attention for
448such a child, but only if a parent or guardian of the child is
449unavailable, his or her whereabouts cannot reasonably be
450ascertained, and a court order for such emergency medical
451services cannot be obtained because of the severity of the
452emergency or because it is after normal working hours. However,
453the provider may not consent to sterilization, abortion, or
454termination of life support. If a child's parents' rights have
455been terminated, the nonprofit agency shall act as guardian of
456the child in all circumstances.
457     (b)  It is the intent of the Legislature that the
458department will continue to work towards full outsourcing
459privatization in a manner that assures the viability of the
460community-based system of care and best provides for the safety
461of children in the child protection system. To this end, the
462department is directed to continue the process of outsourcing
463privatizing services in those counties in which signed startup
464contracts have been executed. The department may also continue
465to enter into startup contracts with additional counties.
466However, no services shall be transferred to a community-based
467care lead agency until the department, in consultation with the
468local community alliance, has determined and certified in
469writing to the Governor and the Legislature that the district is
470prepared to transition the provision of services to the lead
471agency and that the lead agency is ready to deliver and be
472accountable for such service provision. In making this
473determination, the department shall conduct a readiness
474assessment of the district and the lead agency.
475     1.  The assessment shall evaluate the operational readiness
476of the district and the lead agency based on:
477     a.  A set of uniform criteria, developed in consultation
478with currently operating community-based care lead agencies and
479reflecting national accreditation standards, that evaluate
480programmatic, financial, technical assistance, training and
481organizational competencies; and
482     b.  Local criteria reflective of the local community-based
483care design and the community alliance priorities.
484     2.  The readiness assessment shall be conducted by a joint
485team of district and lead agency staff with direct experience
486with the start up and operation of a community-based care
487service program and representatives from the appropriate
488community alliance. Within resources available for this purpose,
489the department may secure outside audit expertise when necessary
490to assist a readiness assessment team.
491     3.  Upon completion of a readiness assessment, the
492assessment team shall conduct an exit conference with the
493district and lead agency staff responsible for the transition.
494     4.  Within 30 days following the exit conference with staff
495of each district and lead agency, the secretary shall certify in
496writing to the Governor and the Legislature that both the
497district and the lead agency are prepared to begin the
498transition of service provision based on the results of the
499readiness assessment and the exit conference. The document of
500certification must include specific evidence of readiness on
501each element of the readiness instrument utilized by the
502assessment team as well as a description of each element of
503readiness needing improvement and strategies being implemented
504to address each one.
505     (c)  The Auditor General and the Office of Program Policy
506Analysis and Government Accountability (OPPAGA), in consultation
507with The Child Welfare League of America and the Louis de la
508Parte Florida Mental Health Institute, shall jointly review and
509assess the department's process for determining district and
510lead agency readiness.
511     1.  The review must, at a minimum, address the
512appropriateness of the readiness criteria and instruments
513applied, the appropriateness of the qualifications of
514participants on each readiness assessment team, the degree to
515which the department accurately determined each district and
516lead agency's compliance with the readiness criteria, the
517quality of the technical assistance provided by the department
518to a lead agency in correcting any weaknesses identified in the
519readiness assessment, and the degree to which each lead agency
520overcame any identified weaknesses.
521     2.  Reports of these reviews must be submitted to the
522appropriate substantive and appropriations committees in the
523Senate and the House of Representatives on March 1 and September
5241 of each year until full transition to community-based care has
525been accomplished statewide, except that the first report must
526be submitted by February 1, 2004, and must address all readiness
527activities undertaken through June 30, 2003. The perspectives of
528all participants in this review process must be included in each
529report.
530     (d)  In communities where economic or demographic
531constraints make it impossible or not feasible to competitively
532contract with a lead agency, the department shall develop an
533alternative plan in collaboration with the local community
534alliance, which may include establishing innovative geographical
535configurations or consortia of agencies. The plan must detail
536how the community will continue to implement community-based
537care through competitively procuring either the specific
538components of foster care and related services or comprehensive
539services for defined eligible populations of children and
540families from qualified licensed agencies as part of its efforts
541to develop the local capacity for a community-based system of
542coordinated care. The plan must ensure local control over the
543management and administration of the service provision in
544accordance with the intent of this section and may include
545recognized best business practices, including some form of
546public or private partnerships.
547     (e)  As used in this section, the term "eligible lead
548community-based provider" means a single agency with which the
549department shall contract for the provision of child protective
550services in a community that is no smaller than a county. The
551secretary of the department may authorize more than one eligible
552lead community-based provider within a single county when to do
553so will result in more effective delivery of foster care and
554related services. To compete for an outsourcing a privatization
555project, such agency must have:
556     1.  The ability to coordinate, integrate, and manage all
557child protective services in the designated community in
558cooperation with child protective investigations.
559     2.  The ability to ensure continuity of care from entry to
560exit for all children referred from the protective investigation
561and court systems.
562     3.  The ability to provide directly, or contract for
563through a local network of providers, all necessary child
564protective services. Such agencies should directly provide no
565more than 35 percent of all child protective services provided.
566     4.  The willingness to accept accountability for meeting
567the outcomes and performance standards related to child
568protective services established by the Legislature and the
569Federal Government.
570     5.  The capability and the willingness to serve all
571children referred to it from the protective investigation and
572court systems, regardless of the level of funding allocated to
573the community by the state, provided all related funding is
574transferred.
575     6.  The willingness to ensure that each individual who
576provides child protective services completes the training
577required of child protective service workers by the Department
578of Children and Family Services.
579     7.  The ability to maintain eligibility to receive all
580federal child welfare funds, including Title IV-E and IV-A
581funds, currently being used by the Department of Children and
582Family Services.
583     8.  Written agreements with Healthy Families Florida lead
584entities in their community, pursuant to s. 409.153, to promote
585cooperative planning for the provision of prevention and
586intervention services.
587     9.  A board of directors, of which at least 51 percent of
588the membership is comprised of persons residing in this state.
589Of the state residents, at least 51 percent must also reside
590within the service area of the lead community-based provider.
591     (f)1.  The Legislature finds that the state has
592traditionally provided foster care services to children who have
593been the responsibility of the state. As such, foster children
594have not had the right to recover for injuries beyond the
595limitations specified in s. 768.28. The Legislature has
596determined that foster care and related services need to be
597outsourced privatized pursuant to this section and that the
598provision of such services is of paramount importance to the
599state. The purpose for such outsourcing privatization is to
600increase the level of safety, security, and stability of
601children who are or become the responsibility of the state. One
602of the components necessary to secure a safe and stable
603environment for such children is that private providers maintain
604liability insurance. As such, insurance needs to be available
605and remain available to nongovernmental foster care and related
606services providers without the resources of such providers being
607significantly reduced by the cost of maintaining such insurance.
608     2.  The Legislature further finds that, by requiring the
609following minimum levels of insurance, children in outsourced
610privatized foster care and related services will gain increased
611protection and rights of recovery in the event of injury than
612provided for in s. 768.28.
613     (g)  In any county in which a service contract has not been
614executed by December 31, 2004, the department shall ensure
615access to a model comprehensive residential services program as
616described in s. 409.1677 which, without imposing undue
617financial, geographic, or other barriers, ensures reasonable and
618appropriate participation by the family in the child's program.
619     1.  In order to ensure that the program is operational by
620December 31, 2004, the department must, by December 31, 2003,
621begin the process of establishing access to a program in any
622county in which the department has not either entered into a
623transition contract or approved a community plan, as described
624in paragraph (d), which ensures full outsourcing privatization
625by the statutory deadline.
626     2.  The program must be procured through a competitive
627process.
628     3.  The Legislature does not intend for the provisions of
629this paragraph to substitute for the requirement that full
630conversion to community-based care be accomplished.
631     (h)  Other than an entity to which s. 768.28 applies, any
632eligible lead community-based provider, as defined in paragraph
633(e), or its employees or officers, except as otherwise provided
634in paragraph (i), must, as a part of its contract, obtain a
635minimum of $1 million per claim/$3 million per incident in
636general liability insurance coverage. The eligible lead
637community-based provider must also require that staff who
638transport client children and families in their personal
639automobiles in order to carry out their job responsibilities
640obtain minimum bodily injury liability insurance in the amount
641of $100,000 per claim, $300,000 per incident, on their personal
642automobiles. In any tort action brought against such an eligible
643lead community-based provider or employee, net economic damages
644shall be limited to $1 million per liability claim and $100,000
645per automobile claim, including, but not limited to, past and
646future medical expenses, wage loss, and loss of earning
647capacity, offset by any collateral source payment paid or
648payable. In any tort action brought against such an eligible
649lead community-based provider, noneconomic damages shall be
650limited to $200,000 per claim. A claims bill may be brought on
651behalf of a claimant pursuant to s. 768.28 for any amount
652exceeding the limits specified in this paragraph. Any offset of
653collateral source payments made as of the date of the settlement
654or judgment shall be in accordance with s. 768.76. The lead
655community-based provider shall not be liable in tort for the
656acts or omissions of its subcontractors or the officers, agents,
657or employees of its subcontractors.
658     (i)  The liability of an eligible lead community-based
659provider described in this section shall be exclusive and in
660place of all other liability of such provider. The same
661immunities from liability enjoyed by such providers shall extend
662as well to each employee of the provider when such employee is
663acting in furtherance of the provider's business, including the
664transportation of clients served, as described in this
665subsection, in privately owned vehicles. Such immunities shall
666not be applicable to a provider or an employee who acts in a
667culpably negligent manner or with willful and wanton disregard
668or unprovoked physical aggression when such acts result in
669injury or death or such acts proximately cause such injury or
670death; nor shall such immunities be applicable to employees of
671the same provider when each is operating in the furtherance of
672the provider's business, but they are assigned primarily to
673unrelated works within private or public employment. The same
674immunity provisions enjoyed by a provider shall also apply to
675any sole proprietor, partner, corporate officer or director,
676supervisor, or other person who in the course and scope of his
677or her duties acts in a managerial or policymaking capacity and
678the conduct that caused the alleged injury arose within the
679course and scope of those managerial or policymaking duties.
680Culpable negligence is defined as reckless indifference or
681grossly careless disregard of human life.
682     (j)  Any subcontractor of an eligible lead community-based
683provider, as defined in paragraph (e), which is a direct
684provider of foster care and related services to children and
685families, and its employees or officers, except as otherwise
686provided in paragraph (i), must, as a part of its contract,
687obtain a minimum of $1 million per claim/$3 million per incident
688in general liability insurance coverage. The subcontractor of an
689eligible lead community-based provider must also require that
690staff who transport client children and families in their
691personal automobiles in order to carry out their job
692responsibilities obtain minimum bodily injury liability
693insurance in the amount of $100,000 per claim, $300,000 per
694incident, on their personal automobiles. In any tort action
695brought against such subcontractor or employee, net economic
696damages shall be limited to $1 million per liability claim and
697$100,000 per automobile claim, including, but not limited to,
698past and future medical expenses, wage loss, and loss of earning
699capacity, offset by any collateral source payment paid or
700payable. In any tort action brought against such subcontractor,
701noneconomic damages shall be limited to $200,000 per claim. A
702claims bill may be brought on behalf of a claimant pursuant to
703s. 768.28 for any amount exceeding the limits specified in this
704paragraph. Any offset of collateral source payments made as of
705the date of the settlement or judgment shall be in accordance
706with s. 768.76.
707     (k)  The liability of a subcontractor of an eligible lead
708community-based provider that is a direct provider of foster
709care and related services as described in this section shall be
710exclusive and in place of all other liability of such provider.
711The same immunities from liability enjoyed by such subcontractor
712provider shall extend as well to each employee of the
713subcontractor when such employee is acting in furtherance of the
714subcontractor's business, including the transportation of
715clients served, as described in this subsection, in privately
716owned vehicles. Such immunities shall not be applicable to a
717subcontractor or an employee who acts in a culpably negligent
718manner or with willful and wanton disregard or unprovoked
719physical aggression when such acts result in injury or death or
720such acts proximately cause such injury or death; nor shall such
721immunities be applicable to employees of the same subcontractor
722when each is operating in the furtherance of the subcontractor's
723business, but they are assigned primarily to unrelated works
724within private or public employment. The same immunity
725provisions enjoyed by a subcontractor shall also apply to any
726sole proprietor, partner, corporate officer or director,
727supervisor, or other person who in the course and scope of his
728or her duties acts in a managerial or policymaking capacity and
729the conduct that caused the alleged injury arose within the
730course and scope of those managerial or policymaking duties.
731Culpable negligence is defined as reckless indifference or
732grossly careless disregard of human life.
733     (l)  The Legislature is cognizant of the increasing costs
734of goods and services each year and recognizes that fixing a set
735amount of compensation actually has the effect of a reduction in
736compensation each year. Accordingly, the conditional limitations
737on damages in this section shall be increased at the rate of 5
738percent each year, prorated from the effective date of this
739paragraph to the date at which damages subject to such
740limitations are awarded by final judgment or settlement.
741     (2)(a)  The department may contract for the delivery,
742administration, or management of protective services, the
743services specified in subsection (1) relating to foster care,
744and other related services or programs, as appropriate. The
745department shall retain responsibility for the quality of
746contracted services and programs and shall ensure that services
747are delivered in accordance with applicable federal and state
748statutes and regulations. The department must adopt written
749policies and procedures for monitoring the contract for delivery
750of services by lead community-based providers. These policies
751and procedures must, at a minimum, address the evaluation of
752fiscal accountability and program operations, including provider
753achievement of performance standards, provider monitoring of
754subcontractors, and timely followup of corrective actions for
755significant monitoring findings related to providers and
756subcontractors. These policies and procedures must also include
757provisions for reducing the duplication of the department's
758program monitoring activities both internally and with other
759agencies, to the extent possible. The department's written
760procedures must ensure that the written findings, conclusions,
761and recommendations from monitoring the contract for services of
762lead community-based providers are communicated to the director
763of the provider agency as expeditiously as possible.
764     (b)  Persons employed by the department in the provision of
765foster care and related services whose positions are being
766outsourced under privatized pursuant to this statute shall be
767given hiring preference by the provider, if provider
768qualifications are met.
769     (3)(a)  In order to help ensure a seamless child protection
770system, the department shall ensure that contracts entered into
771with community-based agencies pursuant to this section include
772provisions for a case-transfer process to determine the date
773that the community-based agency will initiate the appropriate
774services for a child and family. This case-transfer process must
775clearly identify the closure of the protective investigation and
776the initiation of service provision. At the point of case
777transfer, and at the conclusion of an investigation, the
778department must provide a complete summary of the findings of
779the investigation to the community-based agency.
780     (b)  The contracts must also ensure that each community-
781based agency shall furnish information on its activities in all
782cases in client case records.
783     (c)  The contract between the department and community-
784based agencies must include provisions that specify the
785procedures to be used by the parties to resolve differences in
786interpreting the contract or to resolve disputes as to the
787adequacy of the parties' compliance with their respective
788obligations under the contract.
789     (d)  Each contract with an eligible lead community-based
790provider shall provide for the payment by the department to the
791provider of a reasonable administrative cost in addition to
792funding for the provision of services.
793     (e)  Each contract with an eligible lead community-based
794provider must include all performance outcome measures
795established by the Legislature and that are under the control of
796the lead agency. The standards must be adjusted annually by
797contract amendment to enable the department to meet the
798legislatively established statewide standards.
799     (4)(a)  The department, in consultation with the community-
800based agencies that are undertaking the outsourced privatized
801projects, shall establish a quality assurance program for
802privatized services. The quality assurance program shall be
803based on standards established by the Adoption and Safe Families
804Act as well as by a national accrediting organization such as
805the Council on Accreditation of Services for Families and
806Children, Inc. (COA) or CARF--the Rehabilitation Accreditation
807Commission. Each program operated under contract with a
808community-based agency must be evaluated annually by the
809department. The department shall, to the extent possible, use
810independent financial audits provided by the community-based
811care agency to eliminate or reduce the ongoing contract and
812administrative reviews conducted by the department. The
813department may suggest additional items to be included in such
814independent financial audits to meet the department's needs.
815Should the department determine that such independent financial
816audits are inadequate, then other audits, as necessary, may be
817conducted by the department. Nothing herein shall abrogate the
818requirements of s. 215.97. The department shall submit an annual
819report regarding quality performance, outcome measure
820attainment, and cost efficiency to the President of the Senate,
821the Speaker of the House of Representatives, the minority leader
822of each house of the Legislature, and the Governor no later than
823January 31 of each year for each project in operation during the
824preceding fiscal year.
825     (b)  The department shall use these findings in making
826recommendations to the Governor and the Legislature for future
827program and funding priorities in the child welfare system.
828     (5)(a)  The community-based agency must comply with
829statutory requirements and agency rules in the provision of
830contractual services. Each foster home, therapeutic foster home,
831emergency shelter, or other placement facility operated by the
832community-based agency or agencies must be licensed by the
833Department of Children and Family Services under chapter 402 or
834this chapter. Each community-based agency must be licensed as a
835child-caring or child-placing agency by the department under
836this chapter. The department, in order to eliminate or reduce
837the number of duplicate inspections by various program offices,
838shall coordinate inspections required pursuant to licensure of
839agencies under this section.
840     (b)  Substitute care providers who are licensed under s.
841409.175 and have contracted with a lead agency authorized under
842this section shall also be authorized to provide registered or
843licensed family day care under s. 402.313, if consistent with
844federal law and if the home has met the requirements of s.
845402.313.
846     (c)  A dually licensed home under this section shall be
847eligible to receive both an out-of-home care payment and a
848subsidized child care payment for the same child pursuant to
849federal law. The department may adopt administrative rules
850necessary to administer this paragraph.
851     (6)  Beginning January 1, 1999, and continuing at least
852through June 30, 2000, the Department of Children and Family
853Services shall outsource privatize all foster care and related
854services in district 5 while continuing to contract with the
855current model programs in districts 1, 4, and 13, and in
856subdistrict 8A, and shall expand the subdistrict 8A pilot
857program to incorporate Manatee County. Planning for the district
8585 outsourcing privatization shall be done by providers that are
859currently under contract with the department for foster care and
860related services and shall be done in consultation with the
861department.  A lead provider of the district 5 program shall be
862competitively selected, must demonstrate the ability to provide
863necessary comprehensive services through a local network of
864providers, and must meet criteria established in this section.
865Contracts with organizations responsible for the model programs
866must include the management and administration of all outsourced
867privatized services specified in subsection (1). However, the
868department may use funds for contract management only after
869obtaining written approval from the Executive Office of the
870Governor. The request for such approval must include, but is not
871limited to, a statement of the proposed amount of such funds and
872a description of the manner in which such funds will be used. If
873the community-based organization selected for a model program
874under this subsection is not a Medicaid provider, the
875organization shall be issued a Medicaid provider number pursuant
876to s. 409.907 for the provision of services currently authorized
877under the state Medicaid plan to those children encompassed in
878this model and in a manner not to exceed the current level of
879state expenditure.
880     (7)  The Florida Coalition for Children, Inc., in
881consultation with the department, shall develop a plan based on
882an independent actuarial study regarding the long-term use and
883structure of a statewide community-based care risk pool for the
884protection of eligible lead community-based providers, their
885subcontractors, and providers of other social services who
886contract directly with the department. The plan must also
887outline strategies to maximize federal earnings as they relate
888to the community-based care risk pool. At a minimum, the plan
889must allow for the use of federal earnings received from child
890welfare programs to be allocated to the community-based care
891risk pool by the department, which earnings are determined by
892the department to be in excess of the amount appropriated in the
893General Appropriations Act. The plan must specify the necessary
894steps to ensure the financial integrity and industry-standard
895risk management practices of the community-based care risk pool
896and the continued availability of funding from federal, state,
897and local sources. The plan must also include recommendations
898that permit the program to be available to entities of the
899department providing child welfare services until full
900conversion to community-based care takes place. The final plan
901shall be submitted to the department and then to the Executive
902Office of the Governor and the Legislative Budget Commission for
903formal adoption before January 1, 2005. Upon approval of the
904plan by all parties, the department shall issue an interest-free
905loan that is secured by the cumulative contractual revenue of
906the community-based care risk pool membership, and the amount of
907the loan shall equal the amount appropriated by the Legislature
908for this purpose. The plan shall provide for a governance
909structure that assures the department the ability to oversee the
910operation of the community-based care risk pool at least until
911this loan is repaid in full.
912     (a)  The purposes for which the community-based care risk
913pool shall be used include, but are not limited to:
914     1.  Significant changes in the number or composition of
915clients eligible to receive services.
916     2.  Significant changes in the services that are eligible
917for reimbursement.
918     3.  Scheduled or unanticipated, but necessary, advances to
919providers or other cash-flow issues.
920     4.  Proposals to participate in optional Medicaid services
921or other federal grant opportunities.
922     5.  Appropriate incentive structures.
923     6.  Continuity of care in the event of failure,
924discontinuance of service, or financial misconduct by a lead
925agency.
926     7.  Payment for time-limited technical assistance and
927consultation to lead agencies in the event of serious
928performance or management problems.
929     8.  Payment for meeting all traditional and nontraditional
930insurance needs of eligible members.
931     9.  Significant changes in the mix of available funds.
932     (b)  After approval of the plan in the 2004-2005 fiscal
933year and annually thereafter, the department may also request in
934its annual legislative budget request, and the Governor may
935recommend, that the funding necessary to carry out paragraph (a)
936be appropriated to the department. Subsequent funding of the
937community-based care risk pool shall be supported by premiums
938assessed to members of the community-based care risk pool on a
939recurring basis. The community-based care risk pool may invest
940and retain interest earned on these funds. In addition, the
941department may transfer funds to the community-based care risk
942pool as available in order to ensure an adequate funding level
943if the fund is declared to be insolvent and approval is granted
944by the Legislative Budget Commission. Such payments for
945insolvency shall be made only after a determination is made by
946the department or its actuary that all participants in the
947community-based care risk pool are current in their payments of
948premiums and that assessments have been made at an actuarially
949sound level. Such payments by participants in the community-
950based care risk pool may not exceed reasonable industry
951standards, as determined by the actuary. Money from this fund
952may be used to match available federal dollars. Dividends or
953other payments, with the exception of legitimate claims, may not
954be paid to members of the community-based care risk pool until
955the loan issued by the department is repaid in full. Dividends
956or other payments, with the exception of legitimate claims and
957other purposes contained in the approved plan, may not be paid
958to members of the community-based care risk pool unless, at the
959time of distribution, the community-based care risk pool is
960deemed actuarially sound and solvent. Solvency shall be
961determined by an independent actuary contracted by the
962department. The plan shall be developed in consultation with the
963Office of Insurance Regulation.
964     1.  Such funds shall constitute partial security for
965contract performance by lead agencies and shall be used to
966offset the need for a performance bond. Subject to the approval
967of the plan, the community-based care risk pool shall be managed
968by the Florida Coalition for Children, Inc., or the designated
969contractors of the Florida Coalition for Children, Inc.
970Nonmembers of the community-based care risk pool may continue to
971contract with the department but must provide a letter of credit
972equal to one-twelfth of the annual contract amount in lieu of
973membership in the community-based care risk pool.
974     2.  The department may separately require a bond to
975mitigate the financial consequences of potential acts of
976malfeasance, misfeasance, or criminal violations by the
977provider.
978     (8)  Notwithstanding the provisions of s. 215.425, all
979documented federal funds earned for the current fiscal year by
980the department and community-based agencies which exceed the
981amount appropriated by the Legislature shall be distributed to
982all entities that contributed to the excess earnings based on a
983schedule and methodology developed by the department and
984approved by the Executive Office of the Governor. Distribution
985shall be pro rata based on total earnings and shall be made only
986to those entities that contributed to excess earnings. Excess
987earnings of community-based agencies shall be used only in the
988service district in which they were earned. Additional state
989funds appropriated by the Legislature for community-based
990agencies or made available pursuant to the budgetary amendment
991process described in s. 216.177 shall be transferred to the
992community-based agencies. The department shall amend a
993community-based agency's contract to permit expenditure of the
994funds.
995     (9)  Each district and subdistrict that participates in the
996model program effort or any future outsourcing privatization
997effort as described in this section must thoroughly analyze and
998report the complete direct and indirect costs of delivering
999these services through the department and the full cost of
1000outsourcing privatization, including the cost of monitoring and
1001evaluating the contracted services.
1002     (10)  The lead community-based providers and their
1003subcontractors shall be exempt from state travel policies as set
1004forth in s. 112.061(3)(a) for their travel expenses incurred in
1005order to comply with the requirements of this section.
1006     Section 4.  The Office of Program Policy Analysis and
1007Government Accountability shall conduct two reviews of the
1008contract-management and accountability structures of the
1009Department of Children and Family Services, including, but not
1010limited to, whether the department is adequately monitoring and
1011managing its outsourced or privatized functions and services.
1012The office shall report its findings and recommendations to the
1013President of the Senate, the Speaker of the House of
1014Representatives, and the Auditor General by February 1 of 2006
1015and 2007, respectively.
1016     Section 5.  Notwithstanding section 287.057(14)(a), Florida
1017Statutes, the Department of Children and Family Services may
1018enter into agreements, not to exceed 23 years, with a private
1019contractor to finance, design, and construct a secure facility,
1020as described in section 394.917, Florida Statutes, of at least
1021600 beds and to operate all aspects of daily operations within
1022the secure facility. The contractor may sponsor the issuance of
1023tax-exempt certificates of participation or other securities to
1024finance the project, and the state may enter into a lease-
1025purchase agreement for the secure facility. The department shall
1026begin the implementation of this privatization initiative by
1027July 1, 2005. This section is repealed July 1, 2006.
1028     Section 6.  Section 402.72, Florida Statutes, is repealed.
1029     Section 7.  This act shall take effect July 1, 2005.
1030
1031
1032================= T I T L E  A M E N D M E N T =================
1033     On page 1, line(s) 1,
1034remove:  the entire title, and insert:
1035
1036
A bill to be entitled
1037An act relating to the Department of Children and Family;
1038providing definitions; requiring the department to allow
1039all public postsecondary institutions to bid on contracts
1040intended for any public postsecondary institution;
1041authorizing the department to competitively procure and
1042contract for systems of treatment or service that involve
1043multiple providers; providing requirements if other
1044governmental entities contribute matching funds; requiring
1045that an entity providing matching funds must comply with
1046certain procurement procedures; authorizing the department
1047to independently procure and contract for treatment
1048services; requiring multiyear contracts unless
1049justification is provided; requiring that the department
1050establish a contract management process; specifying the
1051requirements for and components of the contract management
1052process; providing requirements for resolving performance
1053deficiencies and terminating a contract; requiring a
1054corrective action plan under certain circumstances;
1055requiring that the department establish contract monitoring
1056units and a contract monitoring process; requiring written
1057reports; requiring on site visits for contracts involving
1058the provision of direct client services; amending s.
1059402.73, F.S.; authorizing the department to adopt
1060incremental penalties by rule; requiring the Agency for
1061Persons with Disabilities to implement systems to ensure
1062quality and fiscal integrity of programs in the
1063developmental services Medicaid waiver system; providing an
1064exemption for health services from competitive bidding
1065requirements; amending s. 409.1671, F.S.; conforming
1066provisions to changes made by the act; requiring that the
1067Office of Program Policy Analysis and Government
1068Accountability conduct two reviews of the contract-
1069management and accountability structures of the department
1070and report to the Legislature and the Auditor General;
1071authorizing the Department of Children and Family Services
1072to enter into agreements with a private contractor to
1073finance, design, and construct a secure facility;
1074authorizing the contractor to sponsor issuance of certain
1075financing certificates or securities; authorizing the state
1076to enter into a lease-purchase agreement; requiring
1077implementation by a time certain; providing for future
1078repeal; repealing s. 402.72, F.S., relating to contract
1079management requirements for the Department of Children and
1080Family Services; providing an effective date.


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