September 21, 2019
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814009
  Amendment
Bill No. 1476
Amendment No. 814009
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     (2)  PROCUREMENT OF COMMODITIES AND CONTRACTUAL SERVICES.--
31     (a)  Notwithstanding section 287.057(5)(f)13., Florida
32Statutes, whenever the department intends to contract with a
33public postsecondary institution to provide a service, the
34department must allow all public postsecondary institutions in
35this state that are accredited by the Southern Association of
36Colleges and Schools to bid on the contract. Thereafter,
37notwithstanding any other provision to the contrary, if a public
38postsecondary institution intends to subcontract for any service
39awarded in the contract, the subcontracted service must be
40procured by competitive procedures.
41     (b)  When it is in the best interest of a defined segment
42of its consumer population, the department may competitively
43procure and contract for systems of treatment or service that
44involve multiple providers, rather than procuring and
45contracting for treatment or services separately from each
46participating provider. The department must ensure that all
47providers that participate in the treatment or service system
48meet all applicable statutory, regulatory, service-quality, and
49cost-control requirements. If other governmental entities or
50units of special purpose government contribute matching funds to
51the support of a given system of treatment or service, the
52department shall formally request information from those funding
53entities in the procurement process and may take the information
54received into account in the selection process. If a local
55government contributes matching funds to support the system of
56treatment or contracted service and if the match constitutes at
57least 25 percent of the value of the contract, the department
58shall afford the governmental match contributor an opportunity
59to name an employee as one of the persons required by section
60287.057(17), Florida Statutes, to evaluate or negotiate certain
61contracts, unless the department sets forth in writing the
62reason why the inclusion would be contrary to the best interest
63of the state. Any employee so named by the governmental match
64contributor shall qualify as one of the persons required by
65section 287.057(17), Florida Statutes. A governmental entity or
66unit of special purpose government may not name an employee as
67one of the persons required by section 287.057(17), Florida
68Statutes, if it, or any of its political subdivisions, executive
69agencies, or special districts, intends to compete for the
70contract to be awarded. The governmental funding entity or
71contributor of matching funds must comply with all procurement
72procedures set forth in section 287.057, Florida Statutes, when
73appropriate and required.
74     (c)  The department may procure and contract for or provide
75assessment and case-management services independently from
76treatment services.
77     (3)  CONTRACT-MANAGEMENT REQUIREMENTS AND PROCESS.-- The
78Department of Children and Family Services shall review the time
79period for which the department executes contracts and shall
80execute multiyear contracts to make the most efficient use of
81the resources devoted to contract processing and execution.
82Whenever the department chooses not to use a multiyear contract,
83a justification for that decision must be contained in the
84contract. Notwithstanding section 287.057(15), Florida Statutes,
85the department is responsible for establishing a contract-
86management process that requires a member of the department's
87Senior Management or Select Exempt Service to assign in writing
88the responsibility of a contract to a contract manager. The
89department shall maintain a set of procedures describing its
90contract-management process which must minimally include the
91following requirements:
92     (a)  The contract manager shall maintain the official
93contract file throughout the duration of the contract and for a
94period not less than 6 years after the termination of the
95contract.
96     (b)  The contract manager shall review all invoices for
97compliance with the criteria and payment schedule provided for
98in the contract and shall approve payment of all invoices before
99their transmission to the Department of Financial Services for
100payment.
101     (c)  The contract manager shall maintain a schedule of
102payments and total amounts disbursed and shall periodically
103reconcile the records with the state's official accounting
104records.
105     (d)  For contracts involving the provision of direct client
106services, the contract manager shall periodically visit the
107physical location where the services are delivered and speak
108directly to clients receiving the services and the staff
109responsible for delivering the services.
110     (e)  The contract manager shall meet at least once a month
111directly with the contractor's representative and maintain
112records of such meetings.
113     (f)  The contract manager shall periodically document any
114differences between the required performance measures and the
115actual performance measures. If a contractor fails to meet and
116comply with the performance measures established in the
117contract, the department may allow a reasonable period for the
118contractor to correct performance deficiencies. If performance
119deficiencies are not resolved to the satisfaction of the
120department within the prescribed time, and if no extenuating
121circumstances can be documented by the contractor to the
122department's satisfaction, the department must terminate the
123contract. The department may not enter into a new contract with
124that same contractor for the services for which the contract was
125previously terminated for a period of at least 24 months after
126the date of termination. The contract manager shall obtain and
127enforce corrective-action plans, if appropriate, and maintain
128records regarding the completion or failure to complete
129corrective-action items.
130     (g)  The contract manager shall document any contract
131modifications, which shall include recording any contract
132amendments as provided for in this section.
133     (h)  The contract manager shall be properly trained before
134being assigned responsibility for any contract.
135     (4)  CONTRACT MONITORING REQUIREMENTS AND PROCESS.--The
136department shall establish contract monitoring units staffed by
137career service employees who report to a member of the Select
138Exempt Service or Senior Management Service and who have been
139properly trained to perform contract monitoring, with at least
140one member of the contract monitoring unit possessing specific
141knowledge and experience in the contract's program area. The
142department shall establish a contract-monitoring process that
143must include, but need not be limited to, the following
144requirements:
145     (a)  Performing a risk assessment at the start of each
146fiscal year and preparing an annual contract monitoring schedule
147that includes consideration for the level of risk assigned. The
148department may monitor any contract at any time regardless of
149whether such monitoring was originally included in the annual
150contract-monitoring schedule.
151     (b)  Preparing a contract monitoring plan, including
152sampling procedures, before performing on site monitoring at
153external locations of a service provider. The plan must include
154a description of the programmatic, fiscal, and administrative
155components that will be monitored on site. If appropriate,
156clinical and therapeutic components may be included.
157     (c)  Conducting analyses of the performance and compliance
158of an external service provider by means of desk reviews if the
159external service provider will not be monitored on site during a
160fiscal year.
161     (d)  Unless the department sets forth in writing the need
162for an extension, providing a written report presenting the
163results of the monitoring within 30 days after the completion of
164the on-site monitoring or desk review.
165     (e)  Developing and maintaining a set of procedures
166describing the contract-monitoring process.
167     Section 2.  Section 402.73, Florida Statutes, is amended to
168read:
169     402.73  Contracting and performance standards.--
170     (1)  The Department of Children and Family Services shall
171establish performance standards for all contracted client
172services. Notwithstanding s. 287.057(5)(f), the department must
173competitively procure any contract for client services when any
174of the following occurs:
175     (a)  The provider fails to meet appropriate performance
176standards established by the department after the provider has
177been given a reasonable opportunity to achieve the established
178standards.
179     (b)  A new program or service has been authorized and
180funded by the Legislature and the annual value of the contract
181for such program or service is $300,000 or more.
182     (c)  The department has concluded, after reviewing market
183prices and available treatment options, that there is evidence
184that the department can improve the performance outcomes
185produced by its contract resources. At a minimum, the department
186shall review market prices and available treatment options
187biennially. The department shall compile the results of the
188biennial review and include the results in its annual
189performance report to the Legislature pursuant to chapter 94-
190249, Laws of Florida. The department shall provide notice and an
191opportunity for public comment on its review of market prices
192and available treatment options.
193     (2)  The competitive requirements of subsection (1) must be
194initiated for each contract that meets the criteria of this
195subsection, unless the secretary makes a written determination
196that particular facts and circumstances require deferral of the
197competitive process. Facts and circumstances must be
198specifically described for each individual contract proposed for
199deferral and must include one or more of the following:
200     (a)  An immediate threat to the health, safety, or welfare
201of the department's clients.
202     (b)  A threat to appropriate use or disposition of
203facilities that have been financed in whole, or in substantial
204part, through contracts or agreements with a state agency.
205     (c)  A threat to the service infrastructure of a community
206which could endanger the well-being of the department's clients.
207
208Competitive procurement of client services contracts that meet
209the criteria in subsection (1) may not be deferred for longer
210than 1 year.
211     (3)  The Legislature intends that the department obtain
212services in the manner that is most cost-effective for the
213state, that provides the greatest long-term benefits to the
214clients receiving services, and that minimizes the disruption of
215client services. In order to meet these legislative goals, the
216department may adopt rules providing procedures for the
217competitive procurement of contracted client services which
218represent an alternative to the request-for-proposal or
219invitation-to-bid process. The alternative competitive
220procedures shall permit the department to solicit professional
221qualifications from prospective providers and to evaluate such
222statements of qualification before requesting service proposals.
223The department may limit the firms invited to submit service
224proposals to only those firms that have demonstrated the highest
225level of professional capability to provide the services under
226consideration, but may not invite fewer than three firms to
227submit service proposals, unless fewer than three firms
228submitted satisfactory statements of qualification. The
229alternative procedures must, at a minimum, allow the department
230to evaluate competing proposals and select the proposal that
231provides the greatest benefit to the state while considering the
232quality of the services, dependability, and integrity of the
233provider, the dependability of the provider's services, the
234experience of the provider in serving target populations or
235client groups substantially identical to members of the target
236population for the contract in question, and the ability of the
237provider to secure local funds to support the delivery of
238services, including, but not limited to, funds derived from
239local governments. These alternative procedures need not conform
240to the requirements of s. 287.042 or s. 287.057(1) or (2).
241     (4)  The department shall review the period for which it
242executes contracts and, to the greatest extent practicable,
243shall execute multiyear contracts to make the most efficient use
244of the resources devoted to contract processing and execution.
245     (5)  When it is in the best interest of a defined segment
246of its consumer population, the department may competitively
247procure and contract for systems of treatment or service that
248involve multiple providers, rather than procuring and
249contracting for treatment or services separately from each
250participating provider. The department must ensure that all
251providers that participate in the treatment or service system
252meet all applicable statutory, regulatory, service-quality, and
253cost-control requirements. If other governmental entities or
254units of special purpose government contribute matching funds to
255the support of a given system of treatment or service, the
256department shall formally request information from those funding
257entities in the procurement process and may take the information
258received into account in the selection process. If a local
259government contributes match to support the system of treatment
260or contracted service and if the match constitutes at least 25
261percent of the value of the contract, the department shall
262afford the governmental match contributor an opportunity to name
263an employee as one of the persons required by s. 287.057(17) to
264evaluate or negotiate certain contracts, unless the department
265sets forth in writing the reason why such inclusion would be
266contrary to the best interest of the state. Any employee so
267named by the governmental match contributor shall qualify as one
268of the persons required by s. 287.057(17). No governmental
269entity or unit of special purpose government may name an
270employee as one of the persons required by s. 287.057(17) if it,
271or any of its political subdivisions, executive agencies, or
272special districts, intends to compete for the contract to be
273awarded. The governmental funding entity or match contributor
274shall comply with any deadlines and procurement procedures
275established by the department. The department may also involve
276nongovernmental funding entities in the procurement process when
277appropriate.
278     (6)  The department may contract for or provide assessment
279and case management services independently from treatment
280services.
281     (1)(7)  The Department of Children and Family Services
282shall adopt, by rule, provisions for including in its contracts
283incremental penalties to be imposed by its contract managers on
284a service provider due to the provider's failure to comply with
285a requirement for corrective action. Any financial penalty that
286is imposed upon a provider may not be paid from funds being used
287to provide services to clients, and the provider may not reduce
288the amount of services being delivered to clients as a method
289for offsetting the impact of the penalty. If a financial penalty
290is imposed upon a provider that is a corporation, the department
291shall notify, at a minimum, the board of directors of the
292corporation. The department may notify, at its discretion, any
293additional parties that the department believes may be helpful
294in obtaining the corrective action that is being sought.
295Further, the rules adopted by the department must include
296provisions that permit the department to deduct the financial
297penalties from funds that would otherwise be due to the
298provider, not to exceed 10 percent of the amount that otherwise
299would be due to the provider for the period of noncompliance. If
300the department imposes a financial penalty, it shall advise the
301provider in writing of the cause for the penalty. A failure to
302include such deductions in a request for payment constitutes a
303ground for the department to reject that request for payment.
304The remedies identified in this subsection do not limit or
305restrict the department's application of any other remedy
306available to it in the contract or under law. The remedies
307described in this subsection may be cumulative and may be
308assessed upon each separate failure to comply with instructions
309from the department to complete corrective action.
310     (8)  The department shall develop standards of conduct and
311a range of disciplinary actions for its employees which are
312specifically related to carrying out contracting
313responsibilities.
314     (2)(9)  The Agency for Persons with Disabilities department
315must implement systems and controls to ensure financial
316integrity and service provision quality in the developmental
317services Medicaid waiver service system.
318     (10)  If a provider fails to meet the performance standards
319established in the contract, the department may allow a
320reasonable period for the provider to correct performance
321deficiencies. If performance deficiencies are not resolved to
322the satisfaction of the department within the prescribed time,
323and if no extenuating circumstances can be documented by the
324provider to the department's satisfaction, the department must
325cancel the contract with the provider. The department may not
326enter into a new contract with that same provider for the
327services for which the contract was previously canceled for a
328period of at least 24 months after the date of cancellation. If
329an adult substance abuse services provider fails to meet the
330performance standards established in the contract, the
331department may allow a reasonable period, not to exceed 6
332months, for the provider to correct performance deficiencies. If
333the performance deficiencies are not resolved to the
334satisfaction of the department within 6 months, the department
335must cancel the contract with the adult substance abuse
336provider, unless there is no other qualified provider in the
337service district.
338     (3)(11)  The department shall include in its standard
339contract document a requirement that any state funds provided
340for the purchase of or improvements to real property are
341contingent upon the contractor or political subdivision granting
342to the state a security interest in the property at least to the
343amount of the state funds provided for at least 5 years from the
344date of purchase or the completion of the improvements or as
345further required by law. The contract must include a provision
346that, as a condition of receipt of state funding for this
347purpose, the provider agrees that, if it disposes of the
348property before the department's interest is vacated, the
349provider will refund the proportionate share of the state's
350initial investment, as adjusted by depreciation.
351     (12)  The department shall develop and refine contracting
352and accountability methods that are administratively efficient
353and that provide for optimal provider performance.
354     (13)  The department may competitively procure any contract
355when it deems it is in the best interest of the state to do so.
356The requirements described in subsection (1) do not, and may not
357be construed to, limit in any way the department's ability to
358competitively procure any contract it executes, and the absence
359of any or all of the criteria described in subsection (1) may
360not be used as the basis for an administrative or judicial
361protest of the department's determination to conduct
362competition, make an award, or execute any contract.
363     (14)  A contract may include cost-neutral, performance-
364based incentives that may vary according to the extent a
365provider achieves or surpasses the performance standards set
366forth in the contract. Such incentives may be weighted
367proportionally to reflect the extent to which the provider has
368demonstrated that it has consistently met or exceeded the
369contractual requirements and the department's performance
370standards.
371     (4)(15)  Nothing contained in chapter 287 shall require
372competitive bids for health services involving examination,
373diagnosis, or treatment.
374     Section 3.  Section 409.1671, Florida Statutes, is amended
375to read:
376     409.1671  Foster care and related services; outsourcing
377privatization.--
378     (1)(a)  It is the intent of the Legislature that the
379Department of Children and Family Services shall outsource
380privatize the provision of foster care and related services
381statewide. It is further the Legislature's intent to encourage
382communities and other stakeholders in the well-being of children
383to participate in assuring that children are safe and well-
384nurtured. However, while recognizing that some local governments
385are presently funding portions of certain foster care and
386related services programs and may choose to expand such funding
387in the future, the Legislature does not intend by its
388outsourcing privatization of foster care and related services
389that any county, municipality, or special district be required
390to assist in funding programs that previously have been funded
391by the state. Counties that provide children and family services
392with at least 40 licensed residential group care beds by July 1,
3932003, and provide at least $2 million annually in county general
394revenue funds to supplement foster and family care services
395shall continue to contract directly with the state and shall be
396exempt from the provisions of this section. Nothing in this
397paragraph prohibits any county, municipality, or special
398district from future voluntary funding participation in foster
399care and related services. As used in this section, the term
400"outsource" "privatize" means to contract with competent,
401community-based agencies. The department shall submit a plan to
402accomplish outsourcing privatization statewide, through a
403competitive process, phased in over a 3-year period beginning
404January 1, 2000. This plan must be developed with local
405community participation, including, but not limited to, input
406from community-based providers that are currently under contract
407with the department to furnish community-based foster care and
408related services, and must include a methodology for determining
409and transferring all available funds, including federal funds
410that the provider is eligible for and agrees to earn and that
411portion of general revenue funds which is currently associated
412with the services that are being furnished under contract. The
413methodology must provide for the transfer of funds appropriated
414and budgeted for all services and programs that have been
415incorporated into the project, including all management, capital
416(including current furniture and equipment), and administrative
417funds to accomplish the transfer of these programs. This
418methodology must address expected workload and at least the 3
419previous years' experience in expenses and workload. With
420respect to any district or portion of a district in which
421outsourcing privatization cannot be accomplished within the 3-
422year timeframe, the department must clearly state in its plan
423the reasons the timeframe cannot be met and the efforts that
424should be made to remediate the obstacles, which may include
425alternatives to total outsourcing privatization, such as public-
426private partnerships. As used in this section, the term "related
427services" includes, but is not limited to, family preservation,
428independent living, emergency shelter, residential group care,
429foster care, therapeutic foster care, intensive residential
430treatment, foster care supervision, case management,
431postplacement supervision, permanent foster care, and family
432reunification. Unless otherwise provided for, the state attorney
433shall provide child welfare legal services, pursuant to chapter
43439 and other relevant provisions, in Pinellas and Pasco
435Counties. When a private nonprofit agency has received case
436management responsibilities, transferred from the state under
437this section, for a child who is sheltered or found to be
438dependent and who is assigned to the care of the outsourcing
439privatization project, the agency may act as the child's
440guardian for the purpose of registering the child in school if a
441parent or guardian of the child is unavailable and his or her
442whereabouts cannot reasonably be ascertained. The private
443nonprofit agency may also seek emergency medical attention for
444such a child, but only if a parent or guardian of the child is
445unavailable, his or her whereabouts cannot reasonably be
446ascertained, and a court order for such emergency medical
447services cannot be obtained because of the severity of the
448emergency or because it is after normal working hours. However,
449the provider may not consent to sterilization, abortion, or
450termination of life support. If a child's parents' rights have
451been terminated, the nonprofit agency shall act as guardian of
452the child in all circumstances.
453     (b)  It is the intent of the Legislature that the
454department will continue to work towards full outsourcing
455privatization in a manner that assures the viability of the
456community-based system of care and best provides for the safety
457of children in the child protection system. To this end, the
458department is directed to continue the process of outsourcing
459privatizing services in those counties in which signed startup
460contracts have been executed. The department may also continue
461to enter into startup contracts with additional counties.
462However, no services shall be transferred to a community-based
463care lead agency until the department, in consultation with the
464local community alliance, has determined and certified in
465writing to the Governor and the Legislature that the district is
466prepared to transition the provision of services to the lead
467agency and that the lead agency is ready to deliver and be
468accountable for such service provision. In making this
469determination, the department shall conduct a readiness
470assessment of the district and the lead agency.
471     1.  The assessment shall evaluate the operational readiness
472of the district and the lead agency based on:
473     a.  A set of uniform criteria, developed in consultation
474with currently operating community-based care lead agencies and
475reflecting national accreditation standards, that evaluate
476programmatic, financial, technical assistance, training and
477organizational competencies; and
478     b.  Local criteria reflective of the local community-based
479care design and the community alliance priorities.
480     2.  The readiness assessment shall be conducted by a joint
481team of district and lead agency staff with direct experience
482with the start up and operation of a community-based care
483service program and representatives from the appropriate
484community alliance. Within resources available for this purpose,
485the department may secure outside audit expertise when necessary
486to assist a readiness assessment team.
487     3.  Upon completion of a readiness assessment, the
488assessment team shall conduct an exit conference with the
489district and lead agency staff responsible for the transition.
490     4.  Within 30 days following the exit conference with staff
491of each district and lead agency, the secretary shall certify in
492writing to the Governor and the Legislature that both the
493district and the lead agency are prepared to begin the
494transition of service provision based on the results of the
495readiness assessment and the exit conference. The document of
496certification must include specific evidence of readiness on
497each element of the readiness instrument utilized by the
498assessment team as well as a description of each element of
499readiness needing improvement and strategies being implemented
500to address each one.
501     (c)  The Auditor General and the Office of Program Policy
502Analysis and Government Accountability (OPPAGA), in consultation
503with The Child Welfare League of America and the Louis de la
504Parte Florida Mental Health Institute, shall jointly review and
505assess the department's process for determining district and
506lead agency readiness.
507     1.  The review must, at a minimum, address the
508appropriateness of the readiness criteria and instruments
509applied, the appropriateness of the qualifications of
510participants on each readiness assessment team, the degree to
511which the department accurately determined each district and
512lead agency's compliance with the readiness criteria, the
513quality of the technical assistance provided by the department
514to a lead agency in correcting any weaknesses identified in the
515readiness assessment, and the degree to which each lead agency
516overcame any identified weaknesses.
517     2.  Reports of these reviews must be submitted to the
518appropriate substantive and appropriations committees in the
519Senate and the House of Representatives on March 1 and September
5201 of each year until full transition to community-based care has
521been accomplished statewide, except that the first report must
522be submitted by February 1, 2004, and must address all readiness
523activities undertaken through June 30, 2003. The perspectives of
524all participants in this review process must be included in each
525report.
526     (d)  In communities where economic or demographic
527constraints make it impossible or not feasible to competitively
528contract with a lead agency, the department shall develop an
529alternative plan in collaboration with the local community
530alliance, which may include establishing innovative geographical
531configurations or consortia of agencies. The plan must detail
532how the community will continue to implement community-based
533care through competitively procuring either the specific
534components of foster care and related services or comprehensive
535services for defined eligible populations of children and
536families from qualified licensed agencies as part of its efforts
537to develop the local capacity for a community-based system of
538coordinated care. The plan must ensure local control over the
539management and administration of the service provision in
540accordance with the intent of this section and may include
541recognized best business practices, including some form of
542public or private partnerships.
543     (e)  As used in this section, the term "eligible lead
544community-based provider" means a single agency with which the
545department shall contract for the provision of child protective
546services in a community that is no smaller than a county. The
547secretary of the department may authorize more than one eligible
548lead community-based provider within a single county when to do
549so will result in more effective delivery of foster care and
550related services. To compete for an outsourcing a privatization
551project, such agency must have:
552     1.  The ability to coordinate, integrate, and manage all
553child protective services in the designated community in
554cooperation with child protective investigations.
555     2.  The ability to ensure continuity of care from entry to
556exit for all children referred from the protective investigation
557and court systems.
558     3.  The ability to provide directly, or contract for
559through a local network of providers, all necessary child
560protective services. Such agencies should directly provide no
561more than 35 percent of all child protective services provided.
562     4.  The willingness to accept accountability for meeting
563the outcomes and performance standards related to child
564protective services established by the Legislature and the
565Federal Government.
566     5.  The capability and the willingness to serve all
567children referred to it from the protective investigation and
568court systems, regardless of the level of funding allocated to
569the community by the state, provided all related funding is
570transferred.
571     6.  The willingness to ensure that each individual who
572provides child protective services completes the training
573required of child protective service workers by the Department
574of Children and Family Services.
575     7.  The ability to maintain eligibility to receive all
576federal child welfare funds, including Title IV-E and IV-A
577funds, currently being used by the Department of Children and
578Family Services.
579     8.  Written agreements with Healthy Families Florida lead
580entities in their community, pursuant to s. 409.153, to promote
581cooperative planning for the provision of prevention and
582intervention services.
583     9.  A board of directors, of which at least 51 percent of
584the membership is comprised of persons residing in this state.
585Of the state residents, at least 51 percent must also reside
586within the service area of the lead community-based provider.
587     (f)1.  The Legislature finds that the state has
588traditionally provided foster care services to children who have
589been the responsibility of the state. As such, foster children
590have not had the right to recover for injuries beyond the
591limitations specified in s. 768.28. The Legislature has
592determined that foster care and related services need to be
593outsourced privatized pursuant to this section and that the
594provision of such services is of paramount importance to the
595state. The purpose for such outsourcing privatization is to
596increase the level of safety, security, and stability of
597children who are or become the responsibility of the state. One
598of the components necessary to secure a safe and stable
599environment for such children is that private providers maintain
600liability insurance. As such, insurance needs to be available
601and remain available to nongovernmental foster care and related
602services providers without the resources of such providers being
603significantly reduced by the cost of maintaining such insurance.
604     2.  The Legislature further finds that, by requiring the
605following minimum levels of insurance, children in outsourced
606privatized foster care and related services will gain increased
607protection and rights of recovery in the event of injury than
608provided for in s. 768.28.
609     (g)  In any county in which a service contract has not been
610executed by December 31, 2004, the department shall ensure
611access to a model comprehensive residential services program as
612described in s. 409.1677 which, without imposing undue
613financial, geographic, or other barriers, ensures reasonable and
614appropriate participation by the family in the child's program.
615     1.  In order to ensure that the program is operational by
616December 31, 2004, the department must, by December 31, 2003,
617begin the process of establishing access to a program in any
618county in which the department has not either entered into a
619transition contract or approved a community plan, as described
620in paragraph (d), which ensures full outsourcing privatization
621by the statutory deadline.
622     2.  The program must be procured through a competitive
623process.
624     3.  The Legislature does not intend for the provisions of
625this paragraph to substitute for the requirement that full
626conversion to community-based care be accomplished.
627     (h)  Other than an entity to which s. 768.28 applies, any
628eligible lead community-based provider, as defined in paragraph
629(e), or its employees or officers, except as otherwise provided
630in paragraph (i), must, as a part of its contract, obtain a
631minimum of $1 million per claim/$3 million per incident in
632general liability insurance coverage. The eligible lead
633community-based provider must also require that staff who
634transport client children and families in their personal
635automobiles in order to carry out their job responsibilities
636obtain minimum bodily injury liability insurance in the amount
637of $100,000 per claim, $300,000 per incident, on their personal
638automobiles. In any tort action brought against such an eligible
639lead community-based provider or employee, net economic damages
640shall be limited to $1 million per liability claim and $100,000
641per automobile claim, including, but not limited to, past and
642future medical expenses, wage loss, and loss of earning
643capacity, offset by any collateral source payment paid or
644payable. In any tort action brought against such an eligible
645lead community-based provider, noneconomic damages shall be
646limited to $200,000 per claim. A claims bill may be brought on
647behalf of a claimant pursuant to s. 768.28 for any amount
648exceeding the limits specified in this paragraph. Any offset of
649collateral source payments made as of the date of the settlement
650or judgment shall be in accordance with s. 768.76. The lead
651community-based provider shall not be liable in tort for the
652acts or omissions of its subcontractors or the officers, agents,
653or employees of its subcontractors.
654     (i)  The liability of an eligible lead community-based
655provider described in this section shall be exclusive and in
656place of all other liability of such provider. The same
657immunities from liability enjoyed by such providers shall extend
658as well to each employee of the provider when such employee is
659acting in furtherance of the provider's business, including the
660transportation of clients served, as described in this
661subsection, in privately owned vehicles. Such immunities shall
662not be applicable to a provider or an employee who acts in a
663culpably negligent manner or with willful and wanton disregard
664or unprovoked physical aggression when such acts result in
665injury or death or such acts proximately cause such injury or
666death; nor shall such immunities be applicable to employees of
667the same provider when each is operating in the furtherance of
668the provider's business, but they are assigned primarily to
669unrelated works within private or public employment. The same
670immunity provisions enjoyed by a provider shall also apply to
671any sole proprietor, partner, corporate officer or director,
672supervisor, or other person who in the course and scope of his
673or her duties acts in a managerial or policymaking capacity and
674the conduct that caused the alleged injury arose within the
675course and scope of those managerial or policymaking duties.
676Culpable negligence is defined as reckless indifference or
677grossly careless disregard of human life.
678     (j)  Any subcontractor of an eligible lead community-based
679provider, as defined in paragraph (e), which is a direct
680provider of foster care and related services to children and
681families, and its employees or officers, except as otherwise
682provided in paragraph (i), must, as a part of its contract,
683obtain a minimum of $1 million per claim/$3 million per incident
684in general liability insurance coverage. The subcontractor of an
685eligible lead community-based provider must also require that
686staff who transport client children and families in their
687personal automobiles in order to carry out their job
688responsibilities obtain minimum bodily injury liability
689insurance in the amount of $100,000 per claim, $300,000 per
690incident, on their personal automobiles. In any tort action
691brought against such subcontractor or employee, net economic
692damages shall be limited to $1 million per liability claim and
693$100,000 per automobile claim, including, but not limited to,
694past and future medical expenses, wage loss, and loss of earning
695capacity, offset by any collateral source payment paid or
696payable. In any tort action brought against such subcontractor,
697noneconomic damages shall be limited to $200,000 per claim. A
698claims bill may be brought on behalf of a claimant pursuant to
699s. 768.28 for any amount exceeding the limits specified in this
700paragraph. Any offset of collateral source payments made as of
701the date of the settlement or judgment shall be in accordance
702with s. 768.76.
703     (k)  The liability of a subcontractor of an eligible lead
704community-based provider that is a direct provider of foster
705care and related services as described in this section shall be
706exclusive and in place of all other liability of such provider.
707The same immunities from liability enjoyed by such subcontractor
708provider shall extend as well to each employee of the
709subcontractor when such employee is acting in furtherance of the
710subcontractor's business, including the transportation of
711clients served, as described in this subsection, in privately
712owned vehicles. Such immunities shall not be applicable to a
713subcontractor or an employee who acts in a culpably negligent
714manner or with willful and wanton disregard or unprovoked
715physical aggression when such acts result in injury or death or
716such acts proximately cause such injury or death; nor shall such
717immunities be applicable to employees of the same subcontractor
718when each is operating in the furtherance of the subcontractor's
719business, but they are assigned primarily to unrelated works
720within private or public employment. The same immunity
721provisions enjoyed by a subcontractor shall also apply to any
722sole proprietor, partner, corporate officer or director,
723supervisor, or other person who in the course and scope of his
724or her duties acts in a managerial or policymaking capacity and
725the conduct that caused the alleged injury arose within the
726course and scope of those managerial or policymaking duties.
727Culpable negligence is defined as reckless indifference or
728grossly careless disregard of human life.
729     (l)  The Legislature is cognizant of the increasing costs
730of goods and services each year and recognizes that fixing a set
731amount of compensation actually has the effect of a reduction in
732compensation each year. Accordingly, the conditional limitations
733on damages in this section shall be increased at the rate of 5
734percent each year, prorated from the effective date of this
735paragraph to the date at which damages subject to such
736limitations are awarded by final judgment or settlement.
737     (2)(a)  The department may contract for the delivery,
738administration, or management of protective services, the
739services specified in subsection (1) relating to foster care,
740and other related services or programs, as appropriate. The
741department shall retain responsibility for the quality of
742contracted services and programs and shall ensure that services
743are delivered in accordance with applicable federal and state
744statutes and regulations. The department must adopt written
745policies and procedures for monitoring the contract for delivery
746of services by lead community-based providers. These policies
747and procedures must, at a minimum, address the evaluation of
748fiscal accountability and program operations, including provider
749achievement of performance standards, provider monitoring of
750subcontractors, and timely followup of corrective actions for
751significant monitoring findings related to providers and
752subcontractors. These policies and procedures must also include
753provisions for reducing the duplication of the department's
754program monitoring activities both internally and with other
755agencies, to the extent possible. The department's written
756procedures must ensure that the written findings, conclusions,
757and recommendations from monitoring the contract for services of
758lead community-based providers are communicated to the director
759of the provider agency as expeditiously as possible.
760     (b)  Persons employed by the department in the provision of
761foster care and related services whose positions are being
762outsourced under privatized pursuant to this statute shall be
763given hiring preference by the provider, if provider
764qualifications are met.
765     (3)(a)  In order to help ensure a seamless child protection
766system, the department shall ensure that contracts entered into
767with community-based agencies pursuant to this section include
768provisions for a case-transfer process to determine the date
769that the community-based agency will initiate the appropriate
770services for a child and family. This case-transfer process must
771clearly identify the closure of the protective investigation and
772the initiation of service provision. At the point of case
773transfer, and at the conclusion of an investigation, the
774department must provide a complete summary of the findings of
775the investigation to the community-based agency.
776     (b)  The contracts must also ensure that each community-
777based agency shall furnish information on its activities in all
778cases in client case records.
779     (c)  The contract between the department and community-
780based agencies must include provisions that specify the
781procedures to be used by the parties to resolve differences in
782interpreting the contract or to resolve disputes as to the
783adequacy of the parties' compliance with their respective
784obligations under the contract.
785     (d)  Each contract with an eligible lead community-based
786provider shall provide for the payment by the department to the
787provider of a reasonable administrative cost in addition to
788funding for the provision of services.
789     (e)  Each contract with an eligible lead community-based
790provider must include all performance outcome measures
791established by the Legislature and that are under the control of
792the lead agency. The standards must be adjusted annually by
793contract amendment to enable the department to meet the
794legislatively established statewide standards.
795     (4)(a)  The department, in consultation with the community-
796based agencies that are undertaking the outsourced privatized
797projects, shall establish a quality assurance program for
798privatized services. The quality assurance program shall be
799based on standards established by the Adoption and Safe Families
800Act as well as by a national accrediting organization such as
801the Council on Accreditation of Services for Families and
802Children, Inc. (COA) or CARF--the Rehabilitation Accreditation
803Commission. Each program operated under contract with a
804community-based agency must be evaluated annually by the
805department. The department shall, to the extent possible, use
806independent financial audits provided by the community-based
807care agency to eliminate or reduce the ongoing contract and
808administrative reviews conducted by the department. The
809department may suggest additional items to be included in such
810independent financial audits to meet the department's needs.
811Should the department determine that such independent financial
812audits are inadequate, then other audits, as necessary, may be
813conducted by the department. Nothing herein shall abrogate the
814requirements of s. 215.97. The department shall submit an annual
815report regarding quality performance, outcome measure
816attainment, and cost efficiency to the President of the Senate,
817the Speaker of the House of Representatives, the minority leader
818of each house of the Legislature, and the Governor no later than
819January 31 of each year for each project in operation during the
820preceding fiscal year.
821     (b)  The department shall use these findings in making
822recommendations to the Governor and the Legislature for future
823program and funding priorities in the child welfare system.
824     (5)(a)  The community-based agency must comply with
825statutory requirements and agency rules in the provision of
826contractual services. Each foster home, therapeutic foster home,
827emergency shelter, or other placement facility operated by the
828community-based agency or agencies must be licensed by the
829Department of Children and Family Services under chapter 402 or
830this chapter. Each community-based agency must be licensed as a
831child-caring or child-placing agency by the department under
832this chapter. The department, in order to eliminate or reduce
833the number of duplicate inspections by various program offices,
834shall coordinate inspections required pursuant to licensure of
835agencies under this section.
836     (b)  Substitute care providers who are licensed under s.
837409.175 and have contracted with a lead agency authorized under
838this section shall also be authorized to provide registered or
839licensed family day care under s. 402.313, if consistent with
840federal law and if the home has met the requirements of s.
841402.313.
842     (c)  A dually licensed home under this section shall be
843eligible to receive both an out-of-home care payment and a
844subsidized child care payment for the same child pursuant to
845federal law. The department may adopt administrative rules
846necessary to administer this paragraph.
847     (6)  Beginning January 1, 1999, and continuing at least
848through June 30, 2000, the Department of Children and Family
849Services shall outsource privatize all foster care and related
850services in district 5 while continuing to contract with the
851current model programs in districts 1, 4, and 13, and in
852subdistrict 8A, and shall expand the subdistrict 8A pilot
853program to incorporate Manatee County. Planning for the district
8545 outsourcing privatization shall be done by providers that are
855currently under contract with the department for foster care and
856related services and shall be done in consultation with the
857department.  A lead provider of the district 5 program shall be
858competitively selected, must demonstrate the ability to provide
859necessary comprehensive services through a local network of
860providers, and must meet criteria established in this section.
861Contracts with organizations responsible for the model programs
862must include the management and administration of all outsourced
863privatized services specified in subsection (1). However, the
864department may use funds for contract management only after
865obtaining written approval from the Executive Office of the
866Governor. The request for such approval must include, but is not
867limited to, a statement of the proposed amount of such funds and
868a description of the manner in which such funds will be used. If
869the community-based organization selected for a model program
870under this subsection is not a Medicaid provider, the
871organization shall be issued a Medicaid provider number pursuant
872to s. 409.907 for the provision of services currently authorized
873under the state Medicaid plan to those children encompassed in
874this model and in a manner not to exceed the current level of
875state expenditure.
876     (7)  The Florida Coalition for Children, Inc., in
877consultation with the department, shall develop a plan based on
878an independent actuarial study regarding the long-term use and
879structure of a statewide community-based care risk pool for the
880protection of eligible lead community-based providers, their
881subcontractors, and providers of other social services who
882contract directly with the department. The plan must also
883outline strategies to maximize federal earnings as they relate
884to the community-based care risk pool. At a minimum, the plan
885must allow for the use of federal earnings received from child
886welfare programs to be allocated to the community-based care
887risk pool by the department, which earnings are determined by
888the department to be in excess of the amount appropriated in the
889General Appropriations Act. The plan must specify the necessary
890steps to ensure the financial integrity and industry-standard
891risk management practices of the community-based care risk pool
892and the continued availability of funding from federal, state,
893and local sources. The plan must also include recommendations
894that permit the program to be available to entities of the
895department providing child welfare services until full
896conversion to community-based care takes place. The final plan
897shall be submitted to the department and then to the Executive
898Office of the Governor and the Legislative Budget Commission for
899formal adoption before January 1, 2005. Upon approval of the
900plan by all parties, the department shall issue an interest-free
901loan that is secured by the cumulative contractual revenue of
902the community-based care risk pool membership, and the amount of
903the loan shall equal the amount appropriated by the Legislature
904for this purpose. The plan shall provide for a governance
905structure that assures the department the ability to oversee the
906operation of the community-based care risk pool at least until
907this loan is repaid in full.
908     (a)  The purposes for which the community-based care risk
909pool shall be used include, but are not limited to:
910     1.  Significant changes in the number or composition of
911clients eligible to receive services.
912     2.  Significant changes in the services that are eligible
913for reimbursement.
914     3.  Scheduled or unanticipated, but necessary, advances to
915providers or other cash-flow issues.
916     4.  Proposals to participate in optional Medicaid services
917or other federal grant opportunities.
918     5.  Appropriate incentive structures.
919     6.  Continuity of care in the event of failure,
920discontinuance of service, or financial misconduct by a lead
921agency.
922     7.  Payment for time-limited technical assistance and
923consultation to lead agencies in the event of serious
924performance or management problems.
925     8.  Payment for meeting all traditional and nontraditional
926insurance needs of eligible members.
927     9.  Significant changes in the mix of available funds.
928     (b)  After approval of the plan in the 2004-2005 fiscal
929year and annually thereafter, the department may also request in
930its annual legislative budget request, and the Governor may
931recommend, that the funding necessary to carry out paragraph (a)
932be appropriated to the department. Subsequent funding of the
933community-based care risk pool shall be supported by premiums
934assessed to members of the community-based care risk pool on a
935recurring basis. The community-based care risk pool may invest
936and retain interest earned on these funds. In addition, the
937department may transfer funds to the community-based care risk
938pool as available in order to ensure an adequate funding level
939if the fund is declared to be insolvent and approval is granted
940by the Legislative Budget Commission. Such payments for
941insolvency shall be made only after a determination is made by
942the department or its actuary that all participants in the
943community-based care risk pool are current in their payments of
944premiums and that assessments have been made at an actuarially
945sound level. Such payments by participants in the community-
946based care risk pool may not exceed reasonable industry
947standards, as determined by the actuary. Money from this fund
948may be used to match available federal dollars. Dividends or
949other payments, with the exception of legitimate claims, may not
950be paid to members of the community-based care risk pool until
951the loan issued by the department is repaid in full. Dividends
952or other payments, with the exception of legitimate claims and
953other purposes contained in the approved plan, may not be paid
954to members of the community-based care risk pool unless, at the
955time of distribution, the community-based care risk pool is
956deemed actuarially sound and solvent. Solvency shall be
957determined by an independent actuary contracted by the
958department. The plan shall be developed in consultation with the
959Office of Insurance Regulation.
960     1.  Such funds shall constitute partial security for
961contract performance by lead agencies and shall be used to
962offset the need for a performance bond. Subject to the approval
963of the plan, the community-based care risk pool shall be managed
964by the Florida Coalition for Children, Inc., or the designated
965contractors of the Florida Coalition for Children, Inc.
966Nonmembers of the community-based care risk pool may continue to
967contract with the department but must provide a letter of credit
968equal to one-twelfth of the annual contract amount in lieu of
969membership in the community-based care risk pool.
970     2.  The department may separately require a bond to
971mitigate the financial consequences of potential acts of
972malfeasance, misfeasance, or criminal violations by the
973provider.
974     (8)  Notwithstanding the provisions of s. 215.425, all
975documented federal funds earned for the current fiscal year by
976the department and community-based agencies which exceed the
977amount appropriated by the Legislature shall be distributed to
978all entities that contributed to the excess earnings based on a
979schedule and methodology developed by the department and
980approved by the Executive Office of the Governor. Distribution
981shall be pro rata based on total earnings and shall be made only
982to those entities that contributed to excess earnings. Excess
983earnings of community-based agencies shall be used only in the
984service district in which they were earned. Additional state
985funds appropriated by the Legislature for community-based
986agencies or made available pursuant to the budgetary amendment
987process described in s. 216.177 shall be transferred to the
988community-based agencies. The department shall amend a
989community-based agency's contract to permit expenditure of the
990funds.
991     (9)  Each district and subdistrict that participates in the
992model program effort or any future outsourcing privatization
993effort as described in this section must thoroughly analyze and
994report the complete direct and indirect costs of delivering
995these services through the department and the full cost of
996outsourcing privatization, including the cost of monitoring and
997evaluating the contracted services.
998     (10)  The lead community-based providers and their
999subcontractors shall be exempt from state travel policies as set
1000forth in s. 112.061(3)(a) for their travel expenses incurred in
1001order to comply with the requirements of this section.
1002     Section 4.  The Office of Program Policy Analysis and
1003Government Accountability shall conduct two reviews of the
1004contract-management and accountability structures of the
1005Department of Children and Family Services, including, but not
1006limited to, whether the department is adequately monitoring and
1007managing its outsourced or privatized functions and services.
1008The office shall report its findings and recommendations to the
1009President of the Senate, the Speaker of the House of
1010Representatives, and the Auditor General by February 1 of 2006
1011and 2007, respectively.
1012     Section 5.  Section 402.72, Florida Statutes, is repealed.
1013     Section 6.  This act shall take effect July 1, 2005.
1014
1015
1016================= T I T L E  A M E N D M E N T =================
1017     On page 1, line(s) 1,
1018remove:  the entire title, and insert:
1019
1020
A bill to be entitled
1021An act relating to the Department of Children and Family;
1022providing definitions; requiring the department to allow
1023all public postsecondary institutions to bid on contracts
1024intended for any public postsecondary institution;
1025authorizing the department to competitively procure and
1026contract for systems of treatment or service that involve
1027multiple providers; providing requirements if other
1028governmental entities contribute matching funds; requiring
1029that an entity providing matching funds must comply with
1030certain procurement procedures; authorizing the department
1031to independently procure and contract for treatment
1032services; requiring multiyear contracts unless
1033justification is provided; requiring that the department
1034establish a contract management process; specifying the
1035requirements for and components of the contract management
1036process; providing requirements for resolving performance
1037deficiencies and terminating a contract; requiring a
1038corrective action plan under certain circumstances;
1039requiring that the department establish contract monitoring
1040units and a contract monitoring process; requiring written
1041reports; requiring on site visits for contracts involving
1042the provision of direct client services; amending s.
1043402.73, F.S.; authorizing the department to adopt
1044incremental penalties by rule; requiring the Agency for
1045Persons with Disabilities to implement systems to ensure
1046quality and fiscal integrity of programs in the
1047developmental services Medicaid waiver system; providing an
1048exemption for health services from competitive bidding
1049requirements; amending s. 409.1671, F.S.; conforming
1050provisions to changes made by the act; requiring that the
1051Office of Program Policy Analysis and Government
1052Accountability conduct two reviews of the contract-
1053management and accountability structures of the department
1054and report to the Legislature and the Auditor General;
1055repealing s. 402.72, F.S., relating to contract management
1056requirements for the Department of Children and Family
1057Services; providing an effective date.


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