Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. SB 1500
       
       
       
       
       
       
                                Barcode 244096                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  04/13/2011           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Banking and Insurance (Bogdanoff) recommended
       the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Paragraphs (f), (h), (j), and (l) of subsection
    6  (1) and paragraph (a) of subsection (2) of section 409.1671,
    7  Florida Statutes, are amended to read:
    8         409.1671 Foster care and related services; outsourcing.—
    9         (1)
   10         (f)1. The Legislature finds that the state has
   11  traditionally provided foster care services to children who are
   12  have been the responsibility of the state. As such, foster
   13  children have not had the right to recover for injuries beyond
   14  the limitations specified in s. 768.28. The Legislature has also
   15  determined that foster care and related services need to be
   16  outsourced pursuant to this section and that the provision of
   17  such services is of paramount importance to the state. The
   18  purpose for such outsourcing is to increase the level of safety,
   19  security, and stability of children who are or become the
   20  responsibility of the state.
   21         1. One of the components necessary to secure a safe and
   22  stable environment for such children is for that private
   23  providers to maintain liability insurance. As Such, insurance
   24  needs to be available and remain available to nongovernmental
   25  foster care and related services providers without the resources
   26  of such providers being significantly reduced by the cost of
   27  maintaining such insurance. To ensure that these resources are
   28  not significantly reduced, specified limits of liability are
   29  necessary for eligible lead community-based providers and
   30  subcontractors engaged in the provision of services previously
   31  performed by the Department of Children and Family Services.
   32         2. The Legislature further finds that, by requiring the
   33  following minimum levels of insurance, children in outsourced
   34  foster care and related services will gain increased protection
   35  and rights of recovery in the event of injury than provided for
   36  in s. 768.28.
   37         (h) Other than an entity to which s. 768.28 applies, any
   38  eligible lead community-based provider, as defined in paragraph
   39  (e), or its employees or officers, except as otherwise provided
   40  in paragraph (i), must, as a part of its contract, obtain
   41  general liability coverage for a minimum of $500,000 $1 million
   42  per occurrence or claim with a policy limit aggregate of/ $2 $3
   43  million per incident in general liability insurance coverage.
   44         1. The eligible lead community-based provider must also
   45  require that staff who transport client children and families in
   46  their personal automobiles in order to carry out their job
   47  responsibilities to obtain minimum bodily injury liability
   48  insurance in the amount of $100,000 per person claim, $300,000
   49  per accident incident, on their personal automobiles. In lieu of
   50  personal motor vehicle insurance, the lead community-based
   51  provider’s casualty, liability, or motor vehicle insurance
   52  carrier may provide nonowned automobile liability coverage. This
   53  insurance provides liability insurance for automobiles that the
   54  provider uses in connection with the provider’s business but
   55  does not own, lease, rent, or borrow. This coverage includes
   56  automobiles owned by the employees of the provider or a member
   57  of the employee’s household but only while the automobiles are
   58  used in connection with the provider’s business. The nonowned
   59  automobile coverage for the provider applies as excess coverage
   60  over any other collectible insurance. The personal automobile
   61  policy for the employee of the provider shall be primary
   62  insurance, and the nonowned automobile coverage of the provider
   63  acts as excess insurance to the primary insurance. The provider
   64  shall provide a minimum limit of $1 million per occurrence and
   65  $2 million in the aggregate for in nonowned automobile coverage.
   66         2. In any tort action brought against such an eligible lead
   67  community-based provider or employee, net economic damages are
   68  shall be limited to $500,000 $1 million per occurrence, $1
   69  million in the aggregate, liability claim and $100,000 per
   70  automobile claim, including, but not limited to, past and future
   71  medical expenses, wage loss, and loss of earning capacity,
   72  offset by any collateral source payment paid or payable. In any
   73  tort action for economic damages, the total amount recoverable
   74  by all claimants is limited to no more than $1 million against
   75  the Department of Children and Family Services, lead agencies,
   76  and all subcontractors involved in the same incident or
   77  occurrence, when totaled together. In any tort action brought
   78  against such an eligible lead community-based provider,
   79  noneconomic damages are shall be limited to $200,000 per
   80  occurrence and $500,000 in the aggregate. In any tort action for
   81  noneconomic damages, the total amount recoverable by all
   82  claimants is limited to no more than $1 million against the
   83  department, lead agencies, and all subcontractors involved in
   84  the same incident or occurrence, when totaled together claim.
   85         3. A claims bill may be brought on behalf of a claimant
   86  pursuant to s. 768.28 for any amount exceeding the limits
   87  specified in this paragraph. Any offset of collateral source
   88  payments made as of the date of the settlement or judgment shall
   89  be in accordance with s. 768.76. The lead community-based
   90  provider is shall not be liable in tort for the acts or
   91  omissions of its subcontractors or the officers, agents, or
   92  employees of its subcontractors.
   93         (j) Any subcontractor of an eligible lead community-based
   94  provider, as defined in paragraph (e), which is a direct
   95  provider of foster care and related services to children and
   96  families, and its employees or officers, except as otherwise
   97  provided in paragraph (i), must, as a part of its contract,
   98  obtain general liability insurance coverage for a minimum of
   99  $500,000 $1 million per occurrence or claim with a policy limit
  100  aggregate of/ $2 $3 million per incident in general liability
  101  insurance coverage.
  102         1. The subcontractor of an eligible lead community-based
  103  provider must also require that staff who transport client
  104  children and families in their personal automobiles in order to
  105  carry out their job responsibilities obtain minimum bodily
  106  injury liability insurance in the amount of $100,000 per person
  107  claim, $300,000 per accident incident, on their personal
  108  automobiles. In lieu of personal motor vehicle insurance, the
  109  subcontractor’s casualty, liability, or motor vehicle insurance
  110  carrier may provide nonowned automobile liability coverage. This
  111  insurance provides liability insurance for automobiles that the
  112  subcontractor uses in connection with the subcontractor’s
  113  business but does not own, lease, rent, or borrow. This coverage
  114  includes automobiles owned by the employees of the subcontractor
  115  or a member of the employee’s household but only while the
  116  automobiles are used in connection with the subcontractor’s
  117  business. The nonowned automobile coverage for the subcontractor
  118  applies as excess coverage over any other collectible insurance.
  119  The personal automobile policy for the employee of the
  120  subcontractor is shall be primary insurance, and the nonowned
  121  automobile coverage of the subcontractor acts as excess
  122  insurance to the primary insurance. The subcontractor shall
  123  provide a minimum limit of $1 million per occurrence and $2
  124  million in the aggregate in nonowned automobile coverage.
  125         2. In any tort action brought against such subcontractor or
  126  employee, net economic damages are shall be limited to $500,000
  127  $1 million per occurrence, $1 million in the aggregate,
  128  liability claim and $100,000 per automobile claim, including,
  129  but not limited to, past and future medical expenses, wage loss,
  130  and loss of earning capacity, offset by any collateral source
  131  payment paid or payable. In any tort action for economic
  132  damages, the total amount recoverable by all claimants is
  133  limited to no more than $2 million against the Department of
  134  Children and Family Services, lead agencies, and all
  135  subcontractors involved in the same incident or occurrence, when
  136  totaled together. In any tort action brought against such
  137  subcontractor, noneconomic damages shall be limited to $200,000
  138  per claim and $500,000 per incident. In any tort action for
  139  noneconomic damages, the total amount recoverable by all
  140  claimants is limited to no more than $1 million against the
  141  department, lead agencies, and all subcontractors involved in
  142  the same incident or occurrence, when totaled together.
  143         3. A claims bill may be brought on behalf of a claimant
  144  pursuant to s. 768.28 for any amount exceeding the limits
  145  specified in this paragraph. Any offset of collateral source
  146  payments made as of the date of the settlement or judgment shall
  147  be in accordance with s. 768.76.
  148         (l) The Legislature is cognizant of the increasing costs of
  149  goods and services each year and recognizes that fixing a set
  150  amount of compensation actually has the effect of a reduction in
  151  compensation each year. Accordingly, the conditional limitations
  152  on damages in this section shall be increased at the rate of 5
  153  percent each year, prorated from the effective date of this
  154  paragraph to the date at which damages subject to such
  155  limitations are awarded by final judgment or settlement.
  156         (2)(a) The Department of Children and Family Services may
  157  contract for the delivery, administration, or management of
  158  protective services, the services specified in subsection (1)
  159  relating to foster care, and other related services or programs,
  160  as appropriate. The department shall use diligent efforts to
  161  ensure that retain responsibility for the quality of contracted
  162  services and programs and shall ensure that services are of high
  163  quality and delivered in accordance with applicable federal and
  164  state statutes and regulations. However, the department is not
  165  liable in tort for the acts or omissions of an eligible lead
  166  community-based provider or the officers, agents, or employees
  167  of the provider, nor is the department liable in tort for the
  168  acts or omissions of the subcontractors of eligible lead
  169  community-based providers or the officers, agents, or employees
  170  of its subcontractors. The department may not require an
  171  eligible lead community-based provider or its subcontractors to
  172  indemnify the department for the department’s own acts or
  173  omissions, nor may the department require an eligible lead
  174  community-based provider or its subcontractors to include the
  175  department as an additional insured on any insurance policy. A
  176  lead community-based provider may not require its subcontractors
  177  to add the lead community-based provider as an additional
  178  insured on a liability policy. The department shall must adopt
  179  written policies and procedures for monitoring the contract for
  180  the delivery of services by lead community-based providers. The
  181  These policies and procedures must, at a minimum, address the
  182  evaluation of fiscal accountability and program operations,
  183  including provider achievement of performance standards,
  184  provider monitoring of subcontractors, and timely followup of
  185  corrective actions for significant monitoring findings related
  186  to providers and subcontractors. These policies and procedures
  187  must also include provisions for reducing the duplication of the
  188  department’s program monitoring activities both internally and
  189  with other agencies, to the extent possible. The department’s
  190  written procedures must ensure that the written findings,
  191  conclusions, and recommendations from monitoring the contract
  192  for services of lead community-based providers are communicated
  193  to the director of the provider agency as expeditiously as
  194  possible.
  195         Section 2. This act shall take effect July 1, 2011.
  196  
  197  ================= T I T L E  A M E N D M E N T ================
  198         And the title is amended as follows:
  199         Delete everything before the enacting clause
  200  and insert:
  201                        A bill to be entitled                      
  202         An act relating to community-based care providers;
  203         amending s. 409.1671, F.S.; decreasing the requisite
  204         amount of insurance coverage for lead community-based
  205         providers and their subcontractors; decreasing the
  206         total amount of economic and noneconomic damages
  207         recoverable from the Department of Children and Family
  208         Services, the lead agencies, and all subcontractors;
  209         providing immunity from liability for the department
  210         for acts or omissions of a community-based provider or
  211         subcontractor, or the officers, agents, or employees
  212         thereof; prohibiting the department from requiring the
  213         lead agency to indemnify the department or for a
  214         subcontractor from requiring its subcontractors to add
  215         the lead agency as an additional insured; providing an
  216         effective date.
  217  
  218         WHEREAS, lead community-based providers were established to
  219  provide foster care and related services, and
  220         WHEREAS, the goal of establishing these providers was to
  221  strengthen the support and commitment of communities to the
  222  reunification of families and the care of children and families
  223  and to increase the efficiency and accountability of providers,
  224  and
  225         WHEREAS, lead community-based providers provide services
  226  identical to those previously provided by the Department of
  227  Children and Family Services, which was protected when
  228  delivering those services by the state’s sovereign immunity
  229  limits, and
  230         WHEREAS, the costs of litigation and attorney’s fees
  231  diminishes the resources available to the children and families
  232  served by lead community-based providers, and
  233         WHEREAS, the Legislature finds that the limits of liability
  234  for lead community-based providers should be reviewed, NOW,
  235  THEREFORE,