| 1 | A bill to be entitled |
| 2 | An act relating to vulnerable children and adults; |
| 3 | amending 382.002, F.S.; defining the term "certified |
| 4 | homeless youth" for purposes of provisions relating to |
| 5 | vital statistics; amending s. 382.0085, F.S.; conforming a |
| 6 | cross-reference; amending s. 382.025, F.S.; authorizing a |
| 7 | certified homeless youth or a minor who has had the |
| 8 | disabilities of nonage removed to obtain a birth |
| 9 | certificate; amending s. 393.067, F.S.; prohibiting |
| 10 | monitoring requirements that mandate pornographic |
| 11 | materials be available in residential facilities that |
| 12 | serve clients of the Agency for Persons with Disabilities; |
| 13 | amending s. 393.11, F.S.; requiring the court to order a |
| 14 | person involuntarily admitted to residential services to |
| 15 | be released to the agency for appropriate residential |
| 16 | services; prohibiting the court from ordering that such |
| 17 | person be released directly to a residential service |
| 18 | provider; authorizing the agency to transfer a person from |
| 19 | one residential setting to another; requiring the agency |
| 20 | to notify the committing court and the person's counsel of |
| 21 | the transfer within a specified time; amending s. 393.125, |
| 22 | F.S.; authorizing the agency to issue a final order; |
| 23 | amending s. 409.1671, F.S.; decreasing the limits of |
| 24 | liability and requisite insurance coverage for lead |
| 25 | community-based providers and subcontractors; providing |
| 26 | immunity from liability for the Department of Children and |
| 27 | Family Services for acts or omissions of a community-based |
| 28 | provider or subcontractor or the officers, agents, or |
| 29 | employees thereof; amending s. 916.1093, F.S.; requiring a |
| 30 | sufficient number of civil facilities to provide |
| 31 | community-based training for defendants charged with sex |
| 32 | offenses; amending s. 916.3025, F.S.; requiring that the |
| 33 | court order a person involuntarily admitted to residential |
| 34 | services after criminal charges have been dismissed to be |
| 35 | released to the agency for appropriate residential |
| 36 | services; creating a task force to develop input for the |
| 37 | creation of certain guidelines and procedures for |
| 38 | providers of residential services; providing for |
| 39 | membership of the task force; requiring the task force to |
| 40 | seek input from certain pertinent entities; requiring the |
| 41 | agency to provide administrative support to the task |
| 42 | force; requiring the task force to submit its findings to |
| 43 | the Legislature; providing an effective date. |
| 44 |
|
| 45 | Be It Enacted by the Legislature of the State of Florida: |
| 46 |
|
| 47 | Section 1. Subsections (3) through (16) of section |
| 48 | 382.002, Florida Statutes, are renumbered as subsections (4) |
| 49 | through (17), respectively, and a new subsection (3) is added to |
| 50 | that section to read: |
| 51 | 382.002 Definitions.-As used in this chapter, the term: |
| 52 | (3) "Certified homeless youth" means a minor who is a |
| 53 | homeless child or youth, including an unaccompanied youth, as |
| 54 | those terms are defined in 42 U.S.C. s. 11434a and who has been |
| 55 | certified as homeless or unaccompanied by: |
| 56 | (a) A school district homeless liaison; |
| 57 | (b) The director of an emergency shelter program funded by |
| 58 | the United States Department of Housing and Urban Development or |
| 59 | the director's designee; or |
| 60 | (c) The director of a runaway or homeless youth basic |
| 61 | center or transitional living program funded by the United |
| 62 | States Department of Health and Human Services or the director's |
| 63 | designee. |
| 64 | Section 2. Subsection (9) of section 382.0085, Florida |
| 65 | Statutes, is amended to read: |
| 66 | 382.0085 Stillbirth registration.- |
| 67 | (9) This section or s. 382.002(15)(14) may not be used to |
| 68 | establish, bring, or support a civil cause of action seeking |
| 69 | damages against any person or entity for bodily injury, personal |
| 70 | injury, or wrongful death for a stillbirth. |
| 71 | Section 3. Paragraph (a) of subsection (1) of section |
| 72 | 382.025, Florida Statutes, is amended to read: |
| 73 | 382.025 Certified copies of vital records; |
| 74 | confidentiality; research.- |
| 75 | (1) BIRTH RECORDS.-Except for birth records over 100 years |
| 76 | old which are not under seal pursuant to court order, all birth |
| 77 | records of this state shall be confidential and are exempt from |
| 78 | the provisions of s. 119.07(1). |
| 79 | (a) Certified copies of the original birth certificate or |
| 80 | a new or amended certificate, or affidavits thereof, are |
| 81 | confidential and exempt from the provisions of s. 119.07(1) and, |
| 82 | upon receipt of a request and payment of the fee prescribed in |
| 83 | s. 382.0255, shall be issued only as authorized by the |
| 84 | department and in the form prescribed by the department, and |
| 85 | only: |
| 86 | 1. To the registrant, if of legal age, or if the |
| 87 | registrant is a certified homeless youth or a minor who has had |
| 88 | the disabilities of nonage removed under s. 743.01 or s. |
| 89 | 743.015; |
| 90 | 2. To the registrant's parent or guardian or other legal |
| 91 | representative; |
| 92 | 3. Upon receipt of the registrant's death certificate, to |
| 93 | the registrant's spouse or to the registrant's child, |
| 94 | grandchild, or sibling, if of legal age, or to the legal |
| 95 | representative of any of such persons; |
| 96 | 4. To any person if the birth record is over 100 years old |
| 97 | and not under seal pursuant to court order; |
| 98 | 5. To a law enforcement agency for official purposes; |
| 99 | 6. To any agency of the state or the United States for |
| 100 | official purposes upon approval of the department; or |
| 101 | 7. Upon order of any court of competent jurisdiction. |
| 102 | Section 4. Subsection (1) of section 393.067, Florida |
| 103 | Statutes, is amended to read: |
| 104 | 393.067 Facility licensure.- |
| 105 | (1) The agency shall provide through its licensing |
| 106 | authority and by rule license application procedures, provider |
| 107 | qualifications, facility and client care standards, requirements |
| 108 | for client records, requirements for staff qualifications and |
| 109 | training, and requirements for monitoring foster care |
| 110 | facilities, group home facilities, residential habilitation |
| 111 | centers, and comprehensive transitional education programs that |
| 112 | serve agency clients. However, monitoring requirements for |
| 113 | foster care facilities, group home facilities, residential |
| 114 | habilitation centers, and comprehensive transitional education |
| 115 | programs may not mandate that pornographic materials be |
| 116 | available in residential facilities that serve the clients of |
| 117 | the agency. |
| 118 | Section 5. Present paragraph (e) of subsection (8) of |
| 119 | section 393.11, Florida Statutes, is redesignated as paragraph |
| 120 | (f) and amended, and a new paragraph (e) is added to that |
| 121 | subsection, to read: |
| 122 | 393.11 Involuntary admission to residential services.- |
| 123 | (8) ORDER.- |
| 124 | (e) If an order of involuntary admission to residential |
| 125 | services provided by the agency is entered by the court, the |
| 126 | court shall order that the person be released to the agency for |
| 127 | receipt of appropriate residential services and may not order |
| 128 | the person to be released directly to a residential service |
| 129 | provider. |
| 130 | (f)(e) Upon receiving the order, the agency shall, within |
| 131 | 45 days, provide the court with a copy of the person's family or |
| 132 | individual support plan and copies of all examinations and |
| 133 | evaluations, outlining the treatment and rehabilitative |
| 134 | programs. The agency shall document that the person has been |
| 135 | placed in the most appropriate, least restrictive and cost- |
| 136 | beneficial residential setting. A copy of the family or |
| 137 | individual support plan and other examinations and evaluations |
| 138 | shall be served upon the person and the person's counsel at the |
| 139 | same time the documents are filed with the court. The agency may |
| 140 | transfer a person from one residential setting to another |
| 141 | residential setting and must notify the court and the person's |
| 142 | counsel of the transfer within 30 days after the transfer is |
| 143 | completed. |
| 144 | Section 6. Paragraph (a) of subsection (1) of section |
| 145 | 393.125, Florida Statutes, is amended to read: |
| 146 | 393.125 Hearing rights.- |
| 147 | (1) REVIEW OF AGENCY DECISIONS.- |
| 148 | (a) For Medicaid programs administered by the agency, any |
| 149 | developmental services applicant or client, or his or her |
| 150 | parent, guardian advocate, or authorized representative, may |
| 151 | request a hearing in accordance with federal law and rules |
| 152 | applicable to Medicaid cases and has the right to request an |
| 153 | administrative hearing pursuant to ss. 120.569 and 120.57. These |
| 154 | hearings shall be provided by the Department of Children and |
| 155 | Family Services pursuant to s. 409.285 and shall follow |
| 156 | procedures consistent with federal law and rules applicable to |
| 157 | Medicaid cases. At the conclusion of the hearing, the department |
| 158 | shall submit its recommended order to the agency as provided in |
| 159 | s. 120.57(1)(k) and the agency shall issue the final order as |
| 160 | provided in s. 120.57(1)(l). |
| 161 | Section 7. Paragraphs (f), (h), (j), and (l) of subsection |
| 162 | (1) and paragraph (a) of subsection (2) of section 409.1671, |
| 163 | Florida Statutes, are amended to read: |
| 164 | 409.1671 Foster care and related services; outsourcing.- |
| 165 | (1) |
| 166 | (f)1. The Legislature finds that the state has |
| 167 | traditionally provided foster care services to children who have |
| 168 | been the responsibility of the state. As such, foster children |
| 169 | have not had the right to recover for injuries beyond the |
| 170 | limitations specified in s. 768.28. The Legislature has |
| 171 | determined that foster care and related services need to be |
| 172 | outsourced pursuant to this section and that the provision of |
| 173 | such services is of paramount importance to the state. The |
| 174 | purpose for such outsourcing is to increase the level of safety, |
| 175 | security, and stability of children who are or become the |
| 176 | responsibility of the state. One of the components necessary to |
| 177 | secure a safe and stable environment for such children is that |
| 178 | private providers maintain liability insurance. As such, |
| 179 | insurance needs to be available and remain available to |
| 180 | nongovernmental foster care and related services providers |
| 181 | without the resources of such providers being significantly |
| 182 | reduced by the cost of maintaining such insurance. To ensure |
| 183 | that these resources are not significantly reduced, specified |
| 184 | limits of liability are necessary for eligible lead community- |
| 185 | based providers and subcontractors engaged in the provision of |
| 186 | services previously performed by the department. |
| 187 | 2. The Legislature further finds that, by requiring the |
| 188 | following minimum levels of insurance, children in outsourced |
| 189 | foster care and related services will gain increased protection |
| 190 | and rights of recovery in the event of injury than provided for |
| 191 | in s. 768.28. |
| 192 | (h) Other than an entity to which s. 768.28 applies, any |
| 193 | eligible lead community-based provider, as defined in paragraph |
| 194 | (e), or its employees or officers, except as otherwise provided |
| 195 | in paragraph (i), must, as a part of its contract, obtain |
| 196 | general liability coverage for a minimum of $500,000 $1 million |
| 197 | per occurrence or claim with a policy limit aggregate of $2 |
| 198 | claim/$3 million per incident in general liability insurance |
| 199 | coverage. The eligible lead community-based provider must also |
| 200 | require that staff who transport client children and families in |
| 201 | their personal automobiles in order to carry out their job |
| 202 | responsibilities obtain minimum bodily injury liability |
| 203 | insurance in the amount of $100,000 per person claim, $300,000 |
| 204 | per accident incident, on their personal automobiles. In lieu of |
| 205 | personal motor vehicle insurance, the lead community-based |
| 206 | provider's casualty, liability, or motor vehicle insurance |
| 207 | carrier may provide nonowned automobile liability coverage. This |
| 208 | insurance provides liability insurance for automobiles that the |
| 209 | provider uses in connection with the provider's business but |
| 210 | does not own, lease, rent, or borrow. This coverage includes |
| 211 | automobiles owned by the employees of the provider or a member |
| 212 | of the employee's household but only while the automobiles are |
| 213 | used in connection with the provider's business. The nonowned |
| 214 | automobile coverage for the provider applies as excess coverage |
| 215 | over any other collectible insurance. The personal automobile |
| 216 | policy for the employee of the provider shall be primary |
| 217 | insurance, and the nonowned automobile coverage of the provider |
| 218 | acts as excess insurance to the primary insurance. The provider |
| 219 | shall provide a minimum limit of $1 million per occurrence and |
| 220 | $2 million in the aggregate for in nonowned automobile coverage. |
| 221 | In any tort action brought against such an eligible lead |
| 222 | community-based provider or employee, net economic damages shall |
| 223 | be limited to $500,000 $1 million per occurrence and $1 million |
| 224 | in the aggregate, liability claim and $100,000 per automobile |
| 225 | claim, including, but not limited to, past and future medical |
| 226 | expenses, wage loss, and loss of earning capacity, offset by any |
| 227 | collateral source payment paid or payable. In any tort action |
| 228 | for economic damages, the total amount recoverable by all |
| 229 | claimants shall be limited to no more than $2 million against |
| 230 | the department, lead community-based providers, and all |
| 231 | subcontractors involved in the same incident or occurrence, when |
| 232 | totaled together. In any tort action brought against such an |
| 233 | eligible lead community-based provider, noneconomic damages |
| 234 | shall be limited to $200,000 per occurrence and $500,000 in the |
| 235 | aggregate. In any tort action for noneconomic damages, the total |
| 236 | amount recoverable by all claimants shall be limited to no more |
| 237 | than $1 million against the department, lead community-based |
| 238 | providers, and all subcontractors involved in the same incident |
| 239 | or occurrence, when totaled together claim. A claims bill may be |
| 240 | brought on behalf of a claimant pursuant to s. 768.28 for any |
| 241 | amount exceeding the limits specified in this paragraph. Any |
| 242 | offset of collateral source payments made as of the date of the |
| 243 | settlement or judgment shall be in accordance with s. 768.76. |
| 244 | The lead community-based provider is shall not be liable in tort |
| 245 | for the acts or omissions of its subcontractors or the officers, |
| 246 | agents, or employees of its subcontractors. |
| 247 | (j) Any subcontractor of an eligible lead community-based |
| 248 | provider, as defined in paragraph (e), which is a direct |
| 249 | provider of foster care and related services to children and |
| 250 | families, and its employees or officers, except as otherwise |
| 251 | provided in paragraph (i), must, as a part of its contract, |
| 252 | obtain general liability insurance coverage for a minimum of |
| 253 | $500,000 $1 million per occurrence or claim with a policy limit |
| 254 | aggregate of $2 claim/$3 million per incident in general |
| 255 | liability insurance coverage. The subcontractor of an eligible |
| 256 | lead community-based provider must also require that staff who |
| 257 | transport client children and families in their personal |
| 258 | automobiles in order to carry out their job responsibilities |
| 259 | obtain minimum bodily injury liability insurance in the amount |
| 260 | of $100,000 per person claim, $300,000 per accident incident, on |
| 261 | their personal automobiles. In lieu of personal motor vehicle |
| 262 | insurance, the subcontractor's casualty, liability, or motor |
| 263 | vehicle insurance carrier may provide nonowned automobile |
| 264 | liability coverage. This insurance provides liability insurance |
| 265 | for automobiles that the subcontractor uses in connection with |
| 266 | the subcontractor's business but does not own, lease, rent, or |
| 267 | borrow. This coverage includes automobiles owned by the |
| 268 | employees of the subcontractor or a member of the employee's |
| 269 | household but only while the automobiles are used in connection |
| 270 | with the subcontractor's business. The nonowned automobile |
| 271 | coverage for the subcontractor applies as excess coverage over |
| 272 | any other collectible insurance. The personal automobile policy |
| 273 | for the employee of the subcontractor shall be primary |
| 274 | insurance, and the nonowned automobile coverage of the |
| 275 | subcontractor acts as excess insurance to the primary insurance. |
| 276 | The subcontractor shall provide a minimum limit of $1 million |
| 277 | per occurrence and $2 million in the aggregate for in nonowned |
| 278 | automobile coverage. In any tort action brought against such |
| 279 | subcontractor or employee, net economic damages shall be limited |
| 280 | to $500,000 $1 million per occurrence, $1 million in the |
| 281 | aggregate, liability claim and $100,000 per automobile claim, |
| 282 | including, but not limited to, past and future medical expenses, |
| 283 | wage loss, and loss of earning capacity, offset by any |
| 284 | collateral source payment paid or payable. In any tort action |
| 285 | for economic damages, the total amount recoverable by all |
| 286 | claimants shall be limited to no more than $2 million against |
| 287 | the department, lead community-based providers, and all |
| 288 | subcontractors involved in the same incident or occurrence, when |
| 289 | totaled together. In any tort action brought against such |
| 290 | subcontractor, noneconomic damages shall be limited to $200,000 |
| 291 | per claim and $500,000 per incident. In any tort action for |
| 292 | noneconomic damages, the total amount recoverable by all |
| 293 | claimants shall be limited to no more than $1 million against |
| 294 | the department, lead community-based providers, and all |
| 295 | subcontractors involved in the same incident or occurrence, when |
| 296 | totaled together. A claims bill may be brought on behalf of a |
| 297 | claimant pursuant to s. 768.28 for any amount exceeding the |
| 298 | limits specified in this paragraph. Any offset of collateral |
| 299 | source payments made as of the date of the settlement or |
| 300 | judgment shall be in accordance with s. 768.76. |
| 301 | (l) The Legislature is cognizant of the increasing costs |
| 302 | of goods and services each year and recognizes that fixing a set |
| 303 | amount of compensation actually has the effect of a reduction in |
| 304 | compensation each year. Accordingly, the conditional limitations |
| 305 | on damages in this section shall be increased at the rate of 5 |
| 306 | percent each year, prorated from the effective date of this |
| 307 | paragraph to the date at which damages subject to such |
| 308 | limitations are awarded by final judgment or settlement. |
| 309 | (2)(a) The department may contract for the delivery, |
| 310 | administration, or management of protective services, the |
| 311 | services specified in subsection (1) relating to foster care, |
| 312 | and other related services or programs, as appropriate. The |
| 313 | department shall use diligent efforts to ensure that retain |
| 314 | responsibility for the quality of contracted services and |
| 315 | programs and shall ensure that services are of high quality and |
| 316 | delivered in accordance with applicable federal and state |
| 317 | statutes and regulations. However, the department is not liable |
| 318 | in tort for the acts or omissions of an eligible lead community- |
| 319 | based provider or the officers, agents, or employees of the |
| 320 | provider, nor is the department liable in tort for the acts or |
| 321 | omissions of the subcontractors of eligible lead community-based |
| 322 | providers or the officers, agents, or employees of its |
| 323 | subcontractors. The department may not require an eligible lead |
| 324 | community-based provider or its subcontractors to indemnify the |
| 325 | department for the department's own acts or omissions, nor may |
| 326 | the department require an eligible lead community-based provider |
| 327 | or its subcontractors to include the department as an additional |
| 328 | insured on any insurance policy. A lead community-based provider |
| 329 | may not require its subcontractors to add the lead community- |
| 330 | based provider as an additional insured on any liability policy. |
| 331 | The department must adopt written policies and procedures for |
| 332 | monitoring the contract for delivery of services by lead |
| 333 | community-based providers. These policies and procedures must, |
| 334 | at a minimum, address the evaluation of fiscal accountability |
| 335 | and program operations, including provider achievement of |
| 336 | performance standards, provider monitoring of subcontractors, |
| 337 | and timely followup of corrective actions for significant |
| 338 | monitoring findings related to providers and subcontractors. |
| 339 | These policies and procedures must also include provisions for |
| 340 | reducing the duplication of the department's program monitoring |
| 341 | activities both internally and with other agencies, to the |
| 342 | extent possible. The department's written procedures must ensure |
| 343 | that the written findings, conclusions, and recommendations from |
| 344 | monitoring the contract for services of lead community-based |
| 345 | providers are communicated to the director of the provider |
| 346 | agency as expeditiously as possible. |
| 347 | Section 8. Present subsection (2) of section 916.1093, |
| 348 | Florida Statutes, is renumbered as subsection (3), and a new |
| 349 | subsection (2) is added to that section to read: |
| 350 | 916.1093 Operation and administration; rules.- |
| 351 | (2) The agency shall ensure that there is a sufficient |
| 352 | number of civil facilities to provide community-based training |
| 353 | for defendants charged with sex offenses so that alternative |
| 354 | placement options are available. If the agency determines that |
| 355 | there are two or fewer facilities available to provide |
| 356 | community-based training for defendants charged with sex |
| 357 | offenses, the agency shall immediately procure additional |
| 358 | facilities. |
| 359 | Section 9. Subsection (3) of section 916.3025, Florida |
| 360 | Statutes, is amended to read: |
| 361 | 916.3025 Jurisdiction of committing court.- |
| 362 | (3) The committing court shall consider a petition to |
| 363 | involuntarily admit a defendant whose charges have been |
| 364 | dismissed to residential services provided by the agency and, |
| 365 | when applicable, to continue secure placement of such person as |
| 366 | provided in s. 916.303. If a defendant whose criminal charges |
| 367 | have been dismissed is involuntarily committed to residential |
| 368 | services provided by the agency, the committing court shall |
| 369 | order that the defendant be released to the agency for receipt |
| 370 | of appropriate residential services and may not order that the |
| 371 | defendant be released directly to a residential service |
| 372 | provider. The committing court shall retain jurisdiction over |
| 373 | such person so long as he or she remains in secure placement or |
| 374 | is on conditional release as provided in s. 916.304. However, |
| 375 | upon request, the court may transfer continuing jurisdiction to |
| 376 | the court in the circuit where the defendant resides. The |
| 377 | defendant may not be released from an order for secure placement |
| 378 | except by order of the court. |
| 379 | Section 10. Task force for the protection of persons with |
| 380 | developmental disabilities.-The Legislature recognizes the |
| 381 | rights of individuals who are developmentally disabled to lead |
| 382 | full and rewarding lives. The Legislature also recognizes the |
| 383 | state's obligation to protect vulnerable adults from sexual |
| 384 | abuse. |
| 385 | (1) In recognition of the social, legal, and environmental |
| 386 | complexities associated with this issue, the Agency for Persons |
| 387 | with Disabilities shall establish a task force to gather input |
| 388 | for the creation of guidelines and procedures for providers of |
| 389 | residential services relating to sexual activity among the |
| 390 | residents of its facilities. |
| 391 | (2) The task force shall be composed of the following |
| 392 | members: |
| 393 | (a) The director of the Agency for Persons with |
| 394 | Disabilities or his or her designee. |
| 395 | (b) The director of the adult protective services program |
| 396 | within the Department of Children and Family Services. |
| 397 | (c) The executive director of The Arc of Florida. |
| 398 | (d) A family board member of The Arc of Florida appointed |
| 399 | by the executive director of The Arc of Florida. |
| 400 | (e) The chair of the Family Care Council Florida. |
| 401 | (f) A parent representative from the Family Care Council |
| 402 | Florida appointed by the chair of the Family Care Council |
| 403 | Florida. |
| 404 | (g) A representative from the Developmental Disabilities |
| 405 | Council. |
| 406 | (h) A representative from Disability Rights Florida. |
| 407 | (i) A representative from the Florida courts. |
| 408 | (j) A representative from the Florida Prosecuting |
| 409 | Attorneys Association. |
| 410 | (k) A representative from the Florida Public Defender |
| 411 | Association. |
| 412 | (l) A staff member of the University Centers for |
| 413 | Excellence in Developmental Disabilities at the University of |
| 414 | South Florida, the Florida Center for Inclusive Communities. |
| 415 | (m) A self-advocate. |
| 416 | (n) A representative from an intensive behavior |
| 417 | residential habilitation provider. |
| 418 | (3) The task force shall seek input from self-advocates, |
| 419 | family members, universities and colleges, and other pertinent |
| 420 | entities. |
| 421 | (4) The agency shall provide administrative support to the |
| 422 | task force. |
| 423 | (5) Members of the task force shall serve without |
| 424 | compensation. |
| 425 | (6) The task force shall submit a report of its findings |
| 426 | to the President of the Senate and the Speaker of the House of |
| 427 | Representatives by November 1, 2011. |
| 428 | Section 11. This act shall take effect July 1, 2011. |