Florida Senate - 2011                                     SB 966
       
       
       
       By Senator Bennett
       
       
       
       
       21-01089A-11                                           2011966__
    1                        A bill to be entitled                      
    2         An act relating to sovereign immunity; amending s.
    3         768.28, F.S.; providing that certain health care
    4         providers and vendors, and their agents and employees,
    5         who primarily serve clients with specified conditions
    6         may be considered agents and employees of the state or
    7         its subdivisions with respect to such services while
    8         acting within the scope of and pursuant to guidelines
    9         established in a contractual agreement or Medicaid
   10         provider agreement; requiring indemnification;
   11         providing construction of provisions; amending ss.
   12         29.0081, 163.01, 324.022, 456.048, 458.320, 459.0085,
   13         616.242, 624.461, 624.462, and 627.733, F.S.;
   14         conforming cross-references to changes made by the
   15         act; providing an effective date.
   16  
   17         WHEREAS, providers under state contracts to serve
   18  individuals with disabilities are serving an important state
   19  purpose, and
   20         WHEREAS, these private service providers provide an
   21  identical purpose to state providers for individuals with
   22  disabilities, and
   23         WHEREAS, these providers are wasting precious resources on
   24  the cost of high insurance premiums, litigation, and attorney’s
   25  fees when they should be following the same limits as the state
   26  programs serving the same population, NOW, THEREFORE,
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Subsections (12) through (20) of section 768.28,
   31  Florida Statutes, are renumbered as subsections (13) through
   32  (21), respectively, and a new subsection (12) is added to that
   33  section to read:
   34         768.28 Waiver of sovereign immunity in tort actions;
   35  recovery limits; limitation on attorney fees; statute of
   36  limitations; exclusions; indemnification; risk management
   37  programs.—
   38         (12)(a) Notwithstanding any other law, a health care
   39  provider or vendor, or any of its employees or agents, at least
   40  75 percent of whose client population consists of individuals
   41  with:
   42         1. Disabilities as defined in s. 393.063, including
   43  individuals served under part VIII of chapter 400;
   44         2. Disabilities as defined in ss. 413.20 and 413.033(1) and
   45  (2);
   46         3. Mental illness as defined in s. 394.455; or
   47         4. A combination of conditions listed in subparagraphs 1.
   48  through 3.,
   49  
   50  and who has contractually agreed to act on behalf of the state
   51  or any of its agencies or subdivisions to provide services to
   52  individuals with disabilities, shall be considered an agent of
   53  the state or of that agency or subdivision for the purposes of
   54  this section solely with respect to such services while acting
   55  within the scope of and pursuant to guidelines established in a
   56  contractual agreement or Medicaid provider agreement. The
   57  contract or agreement must provide for the indemnification of
   58  the state or that agency or subdivision by the agent for any
   59  liabilities incurred up to the limits set out in this chapter
   60  and in accordance with subsection (5).
   61         (b) This subsection does not make a person considered an
   62  agent of the state or its agencies and subdivisions under
   63  paragraph (a) an employee or agent of the state for purposes of
   64  chapter 440.
   65         Section 2. Paragraph (b) of subsection (2) of section
   66  29.0081, Florida Statutes, is amended to read:
   67         29.0081 County funding of additional court personnel.—
   68         (2) The agreement shall, at a minimum, provide that:
   69         (b) The personnel whose employment is funded under the
   70  agreement are hired, supervised, managed, and fired by personnel
   71  of the judicial circuit. The county shall be considered the
   72  employer for purposes of s. 440.10 and chapter 443. Employees
   73  funded by the county under this section and other county
   74  employees may be aggregated for purposes of a flexible benefits
   75  plan pursuant to s. 125 of the Internal Revenue Code of 1986.
   76  The judicial circuit shall supervise the personnel whose
   77  employment is funded under the agreement; be responsible for
   78  compliance with all requirements of federal and state employment
   79  laws, including, but not limited to, Title VII of the Civil
   80  Rights Act of 1964, Title I of the Americans with Disabilities
   81  Act, 42 U.S.C. s. 1983, the Family Medical Leave Act, the Fair
   82  Labor Standards Act, chapters 447 and 760, and ss. 112.3187,
   83  440.105, and 440.205; and fully indemnify the county from any
   84  liability under such laws, as authorized by s. 768.28(20)(19),
   85  to the extent such liability is the result of the acts or
   86  omissions of the judicial circuit or its agents or employees.
   87         Section 3. Paragraph (h) of subsection (3) of section
   88  163.01, Florida Statutes, is amended to read:
   89         163.01 Florida Interlocal Cooperation Act of 1969.—
   90         (3) As used in this section:
   91         (h) “Local government liability pool” means a reciprocal
   92  insurer as defined in s. 629.021 or any self-insurance program
   93  created pursuant to s. 768.28(17)(16), formed and controlled by
   94  counties or municipalities of this state to provide liability
   95  insurance coverage for counties, municipalities, or other public
   96  agencies of this state, which pool may contract with other
   97  parties for the purpose of providing claims administration,
   98  processing, accounting, and other administrative facilities.
   99         Section 4. Subsection (1) of section 324.022, Florida
  100  Statutes, is amended to read:
  101         324.022 Financial responsibility for property damage.—
  102         (1) Every owner or operator of a motor vehicle required to
  103  be registered in this state shall establish and maintain the
  104  ability to respond in damages for liability on account of
  105  accidents arising out of the use of the motor vehicle in the
  106  amount of $10,000 because of damage to, or destruction of,
  107  property of others in any one crash. The requirements of this
  108  section may be met by one of the methods established in s.
  109  324.031; by self-insuring as authorized by s. 768.28(17)(16); or
  110  by maintaining an insurance policy providing coverage for
  111  property damage liability in the amount of at least $10,000
  112  because of damage to, or destruction of, property of others in
  113  any one accident arising out of the use of the motor vehicle.
  114  The requirements of this section may also be met by having a
  115  policy which provides coverage in the amount of at least $30,000
  116  for combined property damage liability and bodily injury
  117  liability for any one crash arising out of the use of the motor
  118  vehicle. The policy, with respect to coverage for property
  119  damage liability, must meet the applicable requirements of s.
  120  324.151, subject to the usual policy exclusions that have been
  121  approved in policy forms by the Office of Insurance Regulation.
  122  No insurer shall have any duty to defend uncovered claims
  123  irrespective of their joinder with covered claims.
  124         Section 5. Paragraph (a) of subsection (2) of section
  125  456.048, Florida Statutes, is amended to read:
  126         456.048 Financial responsibility requirements for certain
  127  health care practitioners.—
  128         (2) The board or department may grant exemptions upon
  129  application by practitioners meeting any of the following
  130  criteria:
  131         (a) Any person licensed under chapter 457, s. 458.3475, s.
  132  459.023, chapter 460, chapter 461, s. 464.012, chapter 466, or
  133  chapter 467 who practices exclusively as an officer, employee,
  134  or agent of the Federal Government or of the state or its
  135  agencies or its subdivisions. For the purposes of this
  136  subsection, an agent of the state, its agencies, or its
  137  subdivisions is a person who is eligible for coverage under any
  138  self-insurance or insurance program authorized by the provisions
  139  of s. 768.28(17)(16) or who is a volunteer under s. 110.501(1).
  140         Section 6. Paragraph (a) of subsection (5) of section
  141  458.320, Florida Statutes, is amended to read:
  142         458.320 Financial responsibility.—
  143         (5) The requirements of subsections (1), (2), and (3) do
  144  not apply to:
  145         (a) Any person licensed under this chapter who practices
  146  medicine exclusively as an officer, employee, or agent of the
  147  Federal Government or of the state or its agencies or its
  148  subdivisions. For the purposes of this subsection, an agent of
  149  the state, its agencies, or its subdivisions is a person who is
  150  eligible for coverage under any self-insurance or insurance
  151  program authorized by the provisions of s. 768.28(17)(16).
  152         Section 7. Paragraph (a) of subsection (5) of section
  153  459.0085, Florida Statutes, is amended to read:
  154         459.0085 Financial responsibility.—
  155         (5) The requirements of subsections (1), (2), and (3) do
  156  not apply to:
  157         (a) Any person licensed under this chapter who practices
  158  medicine exclusively as an officer, employee, or agent of the
  159  Federal Government or of the state or its agencies or its
  160  subdivisions. For the purposes of this subsection, an agent of
  161  the state, its agencies, or its subdivisions is a person who is
  162  eligible for coverage under any self-insurance or insurance
  163  program authorized by the provisions of s. 768.28(17)(16).
  164         Section 8. Paragraph (c) of subsection (9) of section
  165  616.242, Florida Statutes, is amended to read:
  166         616.242 Safety standards for amusement rides.—
  167         (9) INSURANCE REQUIREMENTS.—
  168         (c) The insurance requirements imposed under this
  169  subsection do not apply to a governmental entity that is covered
  170  by the provisions of s. 768.28(17)(16).
  171         Section 9. Section 624.461, Florida Statutes, is amended to
  172  read:
  173         624.461 Definition.—For the purposes of the Florida
  174  Insurance Code, “self-insurance fund” means both commercial
  175  self-insurance funds organized under s. 624.462 and group self
  176  insurance funds organized under s. 624.4621. The term “self
  177  insurance fund” does not include a governmental self-insurance
  178  pool created under s. 768.28(17)(16).
  179         Section 10. Subsection (6) of section 624.462, Florida
  180  Statutes, is amended to read:
  181         624.462 Commercial self-insurance funds.—
  182         (6) A governmental self-insurance pool created pursuant to
  183  s. 768.28(17)(16) shall not be considered a commercial self
  184  insurance fund.
  185         Section 11. Paragraph (b) of subsection (3) of section
  186  627.733, Florida Statutes, is amended to read:
  187         627.733 Required security.—
  188         (3) Such security shall be provided:
  189         (b) By any other method authorized by s. 324.031(2), (3),
  190  or (4) and approved by the Department of Highway Safety and
  191  Motor Vehicles as affording security equivalent to that afforded
  192  by a policy of insurance or by self-insuring as authorized by s.
  193  768.28(17)(16). The person filing such security shall have all
  194  of the obligations and rights of an insurer under ss. 627.730
  195  627.7405.
  196         Section 12. This act shall take effect July 1, 2011.