| 1 | The Commerce Council recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to community behavioral health agencies; |
| 7 | creating s. 624.4624, F.S.; authorizing certain nonprofit |
| 8 | community mental health or substance abuse providers to |
| 9 | form a self-insurance fund for certain purposes; providing |
| 10 | operating requirements of the self-insurance fund; |
| 11 | providing certain application exceptions for such fund; |
| 12 | requiring certain funds to initially be organized and |
| 13 | operate as a commercial self-insurance fund for a time |
| 14 | certain; requiring certain self-insurance funds to comply |
| 15 | with certain annual financial statement requirements for a |
| 16 | time certain; proscribing certain self-insurance funds |
| 17 | from being considered insurers for certain purposes; |
| 18 | creating s. 394.9085, F.S.; limiting net economic damages |
| 19 | per claim in certain tort actions brought against certain |
| 20 | programs or facilities; providing criteria for such |
| 21 | claims; requiring that damages be offset by certain |
| 22 | collateral source payments; requiring that costs to defend |
| 23 | actions be assumed by the provider or its insurer; |
| 24 | providing for exclusivity of such liability; providing for |
| 25 | extension of certain immunities to employees of such |
| 26 | programs or facilities; providing an exception; requiring |
| 27 | eligible providers to obtain and maintain certain general |
| 28 | liability coverage; specifying that persons providing |
| 29 | contractual services to the state are not considered |
| 30 | agents or employees for certain purposes; providing for an |
| 31 | annual increase in the conditional limitations on damages; |
| 32 | providing an effective date. |
| 33 |
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| 34 | Be It Enacted by the Legislature of the State of Florida: |
| 35 |
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| 36 | Section 1. Section 624.4624, Florida Statutes, is created |
| 37 | to read: |
| 38 | 624.4624 Nonprofit community mental health and substance |
| 39 | abuse provider self-insurance fund.-- |
| 40 | (1) Notwithstanding any other provisions of law, any two |
| 41 | or more nonprofit community mental health or substance abuse |
| 42 | providers, which are members in good standing of a nonprofit |
| 43 | statewide association which has been in existence for at least |
| 44 | 10 years and is comprised of at least 50 community-based mental |
| 45 | health and substance abuse agencies which are primarily publicly |
| 46 | funded and located in this state, may form a self-insurance fund |
| 47 | for the purpose of pooling and spreading liabilities of its |
| 48 | group members in any property or casualty risk or surety |
| 49 | insurance or securing the payment of benefits under chapter 440, |
| 50 | provided the nonprofit community mental health and substance |
| 51 | abuse provider self-insurance fund created must: |
| 52 | (a) Have annual normal premiums in excess of $5 million. |
| 53 | (b) Maintain a continuing program of excess insurance |
| 54 | coverage and reserve evaluation to protect the financial |
| 55 | stability of the fund in an amount and manner determined by a |
| 56 | qualified and independent actuary. |
| 57 | (c) Submit to the office annually an audited fiscal year- |
| 58 | end financial statement by an independent certified public |
| 59 | accountant within 6 months after the end of the fiscal year. |
| 60 | (d) Have a governing body which is comprised entirely of |
| 61 | community mental health and substance abuse provider officials. |
| 62 | (2) A nonprofit community mental health and substance |
| 63 | abuse provider self-insurance fund that meets the requirements |
| 64 | of this section is not subject to s. 624.4621 and is not |
| 65 | required to file any report with the department under s. |
| 66 | 440.38(2)(b) required of group self-insurer funds qualified |
| 67 | under s. 624.4621. If any of the requirements of this section |
| 68 | are not met, the nonprofit mental health and substance abuse |
| 69 | provider self-insurance fund is subject to the requirements of |
| 70 | s. 624.4621. |
| 71 | (3)(a) Notwithstanding subsection (2), a nonprofit |
| 72 | community mental health and substance abuse provider self- |
| 73 | insurance fund created under this section after October 1, 2005, |
| 74 | shall initially be subject to the requirements of a commercial |
| 75 | fund under s. 624.4621 and, for the first 5 years of its |
| 76 | existence, shall be subject to all the requirements applied to |
| 77 | commercial self-insurance funds or to group self-insurance |
| 78 | funds, respectively. |
| 79 | (b)1. A nonprofit community mental health and substance |
| 80 | abuse provider self-insurance fund formed after January 1, 2006, |
| 81 | shall, for its first 5 fiscal years, file with the office full |
| 82 | and true statements of its financial condition, transactions, |
| 83 | and affairs. An annual statement covering the preceding fiscal |
| 84 | year shall be filed within 60 days after the end of the fund's |
| 85 | fiscal year and quarterly statements shall be filed within 45 |
| 86 | days after each such date. The office may, for good cause, grant |
| 87 | an extension of time for filing an annual or quarterly |
| 88 | statement. The statements shall contain information generally |
| 89 | included in insurers' financial statements prepared in |
| 90 | accordance with generally accepted insurance accounting |
| 91 | principles and practices and in a form generally used by |
| 92 | insurers for financial statements, sworn to by at least two |
| 93 | executive officers of the self-insurance fund. The form for |
| 94 | financial statements shall be the form currently approved by the |
| 95 | National Association of Insurance Commissioners for use by |
| 96 | property and casualty insurers. |
| 97 | 2. Each annual statement shall contain a statement of |
| 98 | opinion on loss and loss adjustment expense reserves made by a |
| 99 | member of the American Academy of Actuaries. Workpapers in |
| 100 | support of the statement of opinion must be provided to the |
| 101 | office upon request. |
| 102 | Section 2. No self-insurance fund created under this act |
| 103 | shall be deemed to be or considered to be an insurer for any |
| 104 | purpose under chapter 631, Florida Statutes. |
| 105 | Section 3. Section 394.9085, Florida Statutes, is created |
| 106 | to read: |
| 107 | 394.9085 Behavioral provider liability.-- |
| 108 | (1) In any tort action based on services provided for |
| 109 | crisis stabilization brought against a detoxification program as |
| 110 | defined in s. 397.311(18)(b), an addictions receiving facility |
| 111 | as defined in s. 397.311(18)(a), or a designated public |
| 112 | receiving facility as defined in s. 394.455(26), net economic |
| 113 | damages shall be limited to $1 million per liability claim, |
| 114 | including, but not limited to, past and future medical expenses, |
| 115 | wage loss, and loss of earning capacity, offset by any |
| 116 | collateral source payment paid in accordance with s. 768.76. In |
| 117 | any tort action based on services provided for crisis |
| 118 | stabilization brought against any detoxification program as |
| 119 | defined in s. 397.311(18)(b), an addictions receiving facility |
| 120 | as defined in s. 397.311(18)(a), or a designated public |
| 121 | receiving facility as defined in s. 394.455(26), noneconomic |
| 122 | damages shall be limited to $200,000 per claim. Any claim may be |
| 123 | settled up to policy limits without further act of the |
| 124 | Legislature. A claims bill may be brought on behalf of a |
| 125 | claimant pursuant to s. 768.28 for any amount exceeding the |
| 126 | limits specified in this subsection. Any costs in defending |
| 127 | actions brought under this section shall be assumed by the |
| 128 | provider or its insurer. |
| 129 | (2) The liability of a detoxification program as defined |
| 130 | in s. 397.311(18)(b), an addictions receiving facility as |
| 131 | defined in s. 397.311(18)(a), or any designated public receiving |
| 132 | facility as defined in s. 394.455(26) shall be exclusive and in |
| 133 | place of all other liability of such provider. The same |
| 134 | immunities from liability enjoyed by such providers shall extend |
| 135 | to each employee of the provider when such employee is acting in |
| 136 | furtherance of the provider's responsibilities under its |
| 137 | contract with the department. Such immunities shall not be |
| 138 | applicable to a provider or employee who acts in a culpably |
| 139 | negligent manner or with willful and wanton disregard or |
| 140 | unprovoked physical aggression when such acts result in injury |
| 141 | or death. |
| 142 | (3) The eligible provider under this section must, as part |
| 143 | of its contract, obtain and maintain a minimum of $1 million per |
| 144 | claim and $3 million per incident in general liability coverage. |
| 145 | (4) This section does not designate a person who provides |
| 146 | contracted services to the Department of Children and Family |
| 147 | Services as an employee or agent of the state for purposes of |
| 148 | chapter 440. |
| 149 | (5) The Legislature is cognizant of the increasing costs |
| 150 | of goods and services each year and recognizes that fixing a set |
| 151 | amount of compensation actually has the effect of a reduction in |
| 152 | compensation each year. Accordingly, the conditional limitations |
| 153 | on damages in this section shall be increased at the rate of 5 |
| 154 | percent each year, prorated from the July 1, 2005, to the date |
| 155 | at which damages subject to such limitations are awarded by |
| 156 | final judgment or settlement. |
| 157 | Section 4. This act shall take effect July 1, 2005. |