2012 Florida Statutes
Lead community-based providers; receivership.
Lead community-based providers; receivership.
409.1675 Lead community-based providers; receivership.—
(1) The Department of Children and Family Services may petition a court of competent jurisdiction for the appointment of a receiver for a lead community-based provider established pursuant to s. 409.1671 when any of the following conditions exist:
(a) The lead community-based provider is operating without a license as a child-placing agency.
(b) The lead community-based provider has given less than 120 days’ notice of its intent to cease operations, and arrangements have not been made for another lead community-based provider or for the department to continue the uninterrupted provision of services.
(c) The department determines that conditions exist in the lead community-based provider which present an imminent danger to the health, safety, or welfare of the dependent children under that provider’s care or supervision. Whenever possible, the department shall make a reasonable effort to facilitate the continued operation of the program.
(d) The lead community-based provider cannot meet its current financial obligations to its employees, contractors, or foster parents. Issuance of bad checks or the existence of delinquent obligations for payment of salaries, utilities, or invoices for essential services or commodities shall constitute prima facie evidence that the lead community-based provider lacks the financial ability to meet its financial obligations.
(2)(a) The petition for receivership shall take precedence over other court business unless the court determines that some other pending proceeding, having statutory precedence, has priority.
(b) A hearing shall be conducted within 5 days after the filing of the petition, at which time interested parties shall have the opportunity to present evidence as to whether a receiver should be appointed. The department shall give reasonable notice of the hearing on the petition to the lead community-based provider.
(c) The court shall grant the petition upon finding that one or more of the conditions in subsection (1) exists and the continued existence of the condition or conditions jeopardizes the health, safety, or welfare of dependent children. A receiver may be appointed ex parte when the court determines that one or more of the conditions in subsection (1) exists. After such finding, the court may appoint any person, including an employee of the department who is qualified by education, training, or experience to carry out the duties of the receiver pursuant to this section, except that the court shall not appoint any member of the governing board or any officer of the lead community-based provider. The receiver may be selected from a list of persons qualified to act as receivers which is developed by the department and presented to the court with each petition of receivership.
(d) A receiver may be appointed for up to 90 days, and the department may petition the court for additional 30-day extensions. Sixty days after appointment of a receiver and every 30 days thereafter until the receivership is terminated, the department shall submit to the court an assessment of the lead community-based provider’s ability to ensure the health, safety, and welfare of the dependent children under its supervision.
(3) The receiver shall take such steps as are reasonably necessary to ensure the continued health, safety, and welfare of the dependent children under the supervision of the lead community-based provider and shall exercise those powers and perform those duties set out by the court, including, but not limited to:
(a) Taking such action as is reasonably necessary to protect or conserve the assets or property of the lead community-based provider. The receiver may use the assets and property and any proceeds from any transfer thereof only in the performance of the powers and duties set forth in this section and by order of the court.
(b) Using the assets of the lead community-based provider in the provision of care and services to dependent children.
(c) Entering into contracts and hiring agents and employees to carry out the powers and duties of the receiver under this section.
(d) Having full power to direct, manage, hire, and discharge employees of the lead community-based provider. The receiver shall hire and pay new employees at the rate of compensation, including benefits, approved by the court.
(e) Honoring all leases, mortgages, and contractual obligations of the lead community-based provider, but only to the extent of payments that become due during the period of the receivership.
(4)(a) The receiver shall deposit funds received in a separate account and shall use this account for all disbursements.
(b) A payment to the receiver of any sum owing to the lead community-based provider shall discharge any obligation to the provider to the extent of the payment.
(5) A receiver may petition the court for temporary relief from obligations entered into by the lead community-based provider if the rent, price, or rate of interest required to be paid under the agreement was substantially in excess of a reasonable rent, price, or rate of interest at the time the contract was entered into, or if any material provision of the agreement was unreasonable when compared to contracts negotiated under similar conditions. Any relief in this form provided by the court shall be limited to the life of the receivership, unless otherwise determined by the court.
(6) The court shall set the compensation of the receiver, which shall be considered a necessary expense of a receivership and may grant to the receiver such other authority necessary to ensure the health, safety, and welfare of the children served.
(7) A receiver may be held liable in a personal capacity only for the receiver’s own gross negligence, intentional acts, or breaches of fiduciary duty. This section shall not be interpreted to be a waiver of sovereign immunity should the department be appointed receiver.
(8) If the receiver is not the department, the court may require a receiver to post a bond to ensure the faithful performance of these duties.
(9) The court may terminate a receivership when:
(a) The court determines that the receivership is no longer necessary because the conditions that gave rise to the receivership no longer exist; or
(b) The department has entered into a contract with a new lead community-based provider pursuant to s. 409.1671, and that contractor is ready and able to assume the duties of the previous provider.
(10) Within 30 days after the termination, unless this time period is extended by the court, the receiver shall give the court a complete accounting of all property of which the receiver has taken possession, of all funds collected and disbursed, and of the expenses of the receivership.
(11) Nothing in this section shall be construed to relieve any employee of the lead community-based provider placed in receivership of any civil or criminal liability incurred, or any duty imposed by law, by reason of acts or omissions of the employee prior to the appointment of a receiver; nor shall anything contained in this section be construed to suspend during the receivership any obligation of the employee for payment of taxes or other operating or maintenance expenses of the lead community-based provider or for the payment of mortgages or liens. The lead community-based provider shall retain the right to sell or mortgage any facility under receivership, subject to the prior approval of the court that ordered the receivership.
History.—s. 10, ch. 2000-139.