Bill Text: FL H7235 | 2011 | Regular Session | Comm Sub

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Bill Title: Vulnerable Children and Adults

Spectrum: Slight Partisan Bill (? 2-1)

Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [H7235 Detail]

Download: Florida-2011-H7235-Comm_Sub.html

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CS/HB 7235

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.

CODING: Words stricken are deletions; words underlined are additions.