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HomeMy WebLinkAboutBack-UpFlorida Senate - 2020 SB 1302 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 By Senator Flores 39-01004A-20 20201302 A bill to be entitled An act relating to sovereign immunity; amending s. 768.28, F.S.; providing a short title; providing an exception to certain liability for the state and its agencies and subdivisions; increasing the statutory limits on liability for tort claims against the state and its agencies and subdivisions; conforming provisions to changes made state and its agencies and settle a claim or judgment the Legislature; requiring tort liability be adjusted specified date; specifying effect on the date a final by the act; revising when a subdivisions may agree to without further action from that the limitations on every year after a that the limitations in judgment is entered apply to that judgment; requiring certain final judgment amounts to be paid without further action by the Legislature; providing liability for claims arising as a result of certain acts or omissions by certain persons; prohibiting an insurance policy from conditioning the payment of benefits on the enactment of claims bills; amending ss. 29.0081, 39.8297, 163.01, 252.36, 260.0125, 288.9625, 316.6146, 321.24, 324.022, 381.0056, 403.0862, 456.048, 458.320, 459.0085, 589.19, 616.242, 624.461, 624.462, 627.733, 760.11, 766.1115, 766.118, 768.1315, 768.135, 944.713, 984.09, 985.037, 1002.55, 1002.88, 1004.41, 1004.43, 1004.447, and 1006.261, F.S.; conforming cross- references; reenacting ss. 45.061, 110.504, 111.071, 163.01(15)(k), 190.043, 213.015, 284.31, 284.38, Page 1 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 39-01004A-20 20201302 337.19, 341.302, 373.1395, 375.251, 393.075, 403.706, 409.993, 455.221, 455.32, 456.009, 472.006, 497.167, 548.046, 556.106, 768.295, 946.5026, 946.514, 961.06, 1002.33, 1002.333, 1002.34, 1002.77, and 1002.83, F.S., to incorporate the amendment made to s. 768.28, F.S.; providing an effective date. Be It Enacted by the Legislature of the State of Florida: Section 1. Present subsections (1) through (20) of section 768.28, Florida Statutes, are redesignated as subsections (2) through (21), respectively, a new subsection (1) is added to that section, and present subsection (5), paragraphs (a) and (b) of present subsection (9), and paragraph (a) of present subsection (16) of that section are amended, to read: 768.28 Florida Fair Claims Act; waiver of sovereign immunity in tort actions; recovery limits; limitation on attorney fees; statute of limitations; exclusions; indemnification; risk management programs.— (1) This section may be cited as the "Florida Fair Claims Act." (6)(a)(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Except as specified in paragraph (b), neither the state nor its agencies or subdivisions shall be liable to pay a claim r a judgmcnt by any nc pers n which cxcccds the sum f $200,000 r any claim or judgment, or Page 2 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 39-01004A-20 20201302 portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $1 million $300,000. However, a judgment or judgments may be claimed and rendered in excess of this amount thcsc am unts and may bc sctticd and paid pursuant to this act up to $1 million $200,000 r $300,000, as thc casc may bc; and that portion of the judgment that exceeds this amount thcsc am unts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature. Notwithstanding the limited waiver of sovereign immunity provided herein, the state or an agency or subdivision thereof may agree, within thc limits f insurancc c vcragc pr vidcd, to settle a claim made or a judgment rendered against it in excess of $1 million without further action by the Legislature., but The state or agency or subdivision thereof may shall not be deemed to have waived any defense of sovereign immunity or to have increased the limits of its liability as a result of its obtaining insurance coverage for tortious acts in excess of the $1 million $200,000 r $300,000 waiver provided above. The limitations of liability set forth in this subsection shall apply to the state and its agencies and subdivisions whether or not the state or its agencies or subdivisions possessed sovereign immunity before July 1, 1974. Beginning July 1, 2021, and every July 1 thereafter, the limitations of liability in this paragraph shall be adjusted to reflect changes in the Consumer Price Index for the Southeast or a successor index as calculated by the United States Department Page 3 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 39-01004A-20 20201302 of Labor. When determining liability limits for a claim, the limitations of liability in effect on the date a final judgment is entered apply to the claim. (b) The state and its agencies and subdivisions shall be liable to pay the final judgment amount for compensatory damages for claims in which an officer, employee, or agent of the state or its subdivisions, in the scope of her or his employment or function, committed the act in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The limits in effect on the date a final judgment is entered apply to the judgment. The final judgment amount for compensatory damages for such claims shall be paid without further action by the Legislature. (10)--9*(a) No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. However, such officer, employee, or agent shall be considered an adverse witness in a tort action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function. The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such Page 4 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 39-01004A-20 20201302 entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment. However, the state or its subdivision shall be liable for compensatory damages pursuant to paragraph (6)(b) and the employee, officer, or agent of the state or its subdivision shall be liable for all damages for any injury or damage suffered as a result of any act or omission that the person, in the scope of her or his employment or function, or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. (b) As used in this subsection, the term: 1. "Employee" includes any volunteer firefighter. 2. "Officer, employee, or agent" includes, but is not limited to, any health care provider when providing services pursuant to s. 766.1115; any nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, and its employees or agents, when providing patient services pursuant to paragraph (11)(f) (10)(f); and any public defender or her or his employee or agent, including, among others, an assistant public defender and an investigator. (17)(16)(a) The state and its agencies and subdivisions are Page 5 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 39-01004A-20 20201302 authorized to be self -insured, to enter into risk management programs, or to purchase liability insurance for whatever coverage they may choose, or to have any combination thereof, in anticipation of any claim, judgment, and claims bill which they may be liable to pay pursuant to this section. Agencies or subdivisions, and sheriffs, that are subject to homogeneous risks may purchase insurance jointly or may join together as self -insurers to provide other means of protection against tort claims, any charter provisions or laws to the contrary notwithstanding. An insurance policy may not condition the payment of benefits, in whole or in part, on the enactment of claims bills. Section 2. Paragraph (b) of subsection (2) of section 29.0081, Florida Statutes, is amended to read: 29.0081 County funding of additional court personnel.— (2) The agreement shall, at a minimum, provide that: (b) The personnel whose employment is funded under the agreement are hired, supervised, managed, and fired by personnel of the judicial circuit. The county shall be considered the employer for purposes of s. 440.10 and chapter 443. Employees funded by the county under this section and other county employees may be aggregated for purposes of a flexible benefits plan pursuant to s. 125 of the Internal Revenue Code of 1986. The judicial circuit shall supervise the personnel whose employment is funded under the agreement; be responsible for compliance with all requirements of federal and state employment laws, including, but not limited to, Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, 42 U.S.C. s. 1983, the Family Medical Leave Act, the Fair Page 6 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 39-01004A-20 20201302 Labor Standards Act, chapters 447 and 760, and ss. 112.3187, 440.105, and 440.205; and fully indemnify the county from any liability under such laws, as authorized by s. 768.28(20) 768.28(19), to the extent such liability is the result of the acts or omissions of the judicial circuit or its agents or employees. Section 3. Paragraph (b) of subsection (2) of section 39.8297, Florida Statutes, is amended to read: 39.8297 County funding for guardian ad litem employees.— (2) The agreement, at a minimum, must provide that: (b) The persons who are employed will be hired, supervised, managed, and terminated by the executive director of the Statewide Guardian Ad Litem Office. The statewide office is responsible for compliance with all requirements of federal and state employment laws, and shall fully indemnify the county from any liability under such laws, as authorized by s. 768.28(20) 768.28(19), to the extent such liability is the result of the acts or omissions of the Statewide Guardian Ad Litem Office or its agents or employees. Section 4. Paragraph (h) of subsection (3) of section 163.01, Florida Statutes, is amended to read: 163.01 Florida Interlocal Cooperation Act of 1969.— (3) As used in this section: (h) "Local government liability pool" means a reciprocal insurer as defined in s. 629.021 or any self-insurance program created pursuant to s. 768.28(17) s. 768.28(16), formed and controlled by counties or municipalities of this state to provide liability insurance coverage for counties, municipalities, or other public agencies of this state, which Page 7 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 39-01004A-20 20201302 pool may contract with other parties for the purpose of providing claims administration, processing, accounting, and other administrative facilities. Section 5. Paragraph (1) of subsection (5) of section 252.36, Florida Statutes, is amended to read: 252.36 Emergency management powers of the Governor.— (5) In addition to any other powers conferred upon the Governor by law, she or he may: (1) Authorize the use of forces already mobilized as the result of an executive order, rule, or proclamation to assist the private citizens of the state in cleanup and recovery operations during emergencies when proper permission to enter onto or into private property has been obtained from the property owner. The provisions of s. 768.28(10) s. 768.28(9) apply to this paragraph. Section 6. Subsection (2) of section 260.0125, Florida Statutes, is amended to read: 260.0125 Limitation on liability of private landowners whose property is designated as part of the statewide system of greenways and trails.— (2) Any private landowner who consents to designation of his or her land as part of the statewide system of greenways and trails pursuant to s. 260.016(2)(d) without compensation shall be considered a volunteer, as defined in s. 110.501, and shall be covered by state liability protection pursuant to s. 768.28, including s. 768.28(10) s. 768.28(9). Section 7. Subsection (2) and paragraph (g) of subsection (10) of section 288.9625, Florida Statutes, are amended to read: 288.9625 Institute for Commercialization of Florida Page 8 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 39-01004A-20 20201302 Technology.— (2) The purpose of the institute is to assist, without any financial support or specific appropriations from the state, in the commercialization of products developed by the research and development activities of an innovation business, including, but not limited to, those defined in s. 288.1089. The institute shall fulfill its purpose in the best interests of the state. The institute: (a) Is a corporation primarily acting as an instrumentality of the state pursuant to s. 768.28(3) s. 768.28(2), for the purposes of sovereign immunity; (b) Is not an agency within the meaning of s. 20.03(11); (c) Is subject to the open records and meetings requirements of s. 24, Art. I of the State Constitution, chapter 119, and s. 286.011; (d) Is not subject to chapter 287; (e) Is governed by the code of ethics for public officers and employees as set forth in part III of chapter 112; (f) May create corporate subsidiaries; and (g) May not receive any financial support or specific appropriations from the state. (10) The private fund manager: (g) Is not a corporation primarily acting as an instrumentality of the state pursuant to s. 768.28(3) 768.28(2), for the purposes of sovereign immunity. Section 8. Section 316.6146, Florida Statutes, is amended to read: 316.6146 Transportation of private school students on public school buses and public school students on private school Page 9 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 39-01004A-20 20201302 buses; agreement. —Private school students may be transported on public school buses and public school students may be transported on private school buses when there is mutual agreement between the local school board and the applicable private school. Any agreement for private school students to be transported on public school buses must be in accordance with ss. 768.28 (10) (a) ss. 768.28 (9) (a) and 316.6145. Any agreement for public school students to be transported on private school buses must be contingent on the private school bus driver's having adequate liability insurance through his or her employer. Section 9. Subsection (5) of section 321.24, Florida Statutes, is amended to read: 321.24 Members of an auxiliary to Florida Highway Patrol.— (5) Notwithstanding any other law to the contrary, any volunteer highway patrol troop surgeon appointed by the director of the Florida Highway Patrol and any volunteer licensed health professional appointed by the director of the Florida Highway Patrol to work under the medical direction of a highway patrol troop surgeon is considered an employee for purposes of s. 768.28 (10) s. 768.28 (9) . Section 10. Subsection (1) of section 324.022, Florida Statutes, is amended to read: 324.022 Financial responsibility for property damage.— (1) Every owner or operator of a motor vehicle required to be registered in this state shall establish and maintain the ability to respond in damages for liability on account of accidents arising out of the use of the motor vehicle in the amount of $10,000 because of damage to, or destruction of, property of others in any one crash. The requirements of this Page 10 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 39-01004A-20 20201302 section may be met by one of the methods established in s. 324.031; by self -insuring as authorized by s. 768.28(17) 768.28(16); or by maintaining an insurance policy providing coverage for property damage liability in the amount of at least $10,000 because of damage to, or destruction of, property of others in any one accident arising out of the use of the motor vehicle. The requirements of this section may also be met by having a policy which provides coverage in the amount of at least $30,000 for combined property damage liability and bodily injury liability for any one crash arising out of the use of the motor vehicle. The policy, with respect to coverage for property damage liability, must meet the applicable requirements of s. 324.151, subject to the usual policy exclusions that have been approved in policy forms by the Office of Insurance Regulation. No insurer shall have any duty to defend uncovered claims irrespective of their joinder with covered claims. Section 11. Subsection (9) of section 381.0056, Florida Statutes, is amended to read: 381.0056 School health services program.— (9) Any health care entity that provides school health services under contract with the department pursuant to a school health services plan developed under this section, and as part of a school nurse services public -private partnership, is deemed to be a corporation acting primarily as an instrumentality of the state solely for the purpose of limiting liability pursuant to s. 768.28(6) s. 768.28(5). The limitations on tort actions contained in s. 768.28(6) s. 768.28(5) shall apply to any action against the entity with respect to the provision of school health services, if the entity is acting within the scope of and Page 11 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 39-01004A-20 20201302 pursuant to guidelines established in the contract or by rule of the department. The contract must require the entity, or the partnership on behalf of the entity, to obtain general liability insurance coverage, with any additional endorsement necessary to insure the entity for liability assumed by its contract with the department. The Legislature intends that insurance be purchased by entities, or by partnerships on behalf of the entity, to cover all liability claims, and under no circumstances shall the state or the department be responsible for payment of any claims or defense costs for claims brought against the entity or its subcontractor for services performed under the contract with the department. This subsection does not preclude consideration by the Legislature for payment by the state of any claims bill involving an entity contracting with the department pursuant to this section. Section 12. Subsection (4) of section 403.0862, Florida Statutes, is amended to read: 403.0862 Discharge of waste from state groundwater cleanup operations to publicly owned treatment works.— (4) The limitation on damages provided by s. 768.28(6) 768.28(5) shall not apply to any obligation or payment which may become due under this section. Section 13. Paragraph (a) of subsection (2) of section 456.048, Florida Statutes, is amended to read: 456.048 Financial responsibility requirements for certain health care practitioners.— (2) The board or department may grant exemptions upon application by practitioners meeting any of the following criteria: Page 12 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 39-01004A-20 20201302 (a) Any person licensed under chapter 457, s. 458.3475, s. 459.023, chapter 460, chapter 461, s. 464.012, chapter 466, or chapter 467 who practices exclusively as an officer, employee, or agent of the Federal Government or of the state or its agencies or its subdivisions. For the purposes of this subsection, an agent of the state, its agencies, or its subdivisions is a person who is eligible for coverage under any self-insurance or insurance program authorized by the provisions of s. 768.28(17) s. 768.28(16) or who is a volunteer under s. 110.501 (1) . Section 14. Paragraph (a) of subsection (5) of section 458.320, Florida Statutes, is amended to read: 458.320 Financial responsibility.— (5) The requirements of subsections (1), (2), and (3) do not apply to: (a) Any person licensed under this chapter who practices medicine exclusively as an officer, employee, or agent of the Federal Government or of the state or its agencies or its subdivisions. For the purposes of this subsection, an agent of the state, its agencies, or its subdivisions is a person who is eligible for coverage under any self-insurance or insurance program authorized by the provisions of s. 768.28(17) 768.28 (16) . Section 15. Paragraph (a) of subsection (5) of section 459.0085, Florida Statutes, is amended to read: 459.0085 Financial responsibility.— (5) The requirements of subsections (1), (2), and (3) do not apply to: (a) Any person licensed under this chapter who practices Page 13 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 39-01004A-20 20201302 medicine exclusively as an officer, employee, or agent of the Federal Government or of the state or its agencies or its subdivisions. For the purposes of this subsection, an agent of the state, its agencies, or its subdivisions is a person who is eligible for coverage under any self-insurance or insurance program authorized by the provisions of s. 768.28(17) 768.28 (16) . Section 16. Paragraph (e) of subsection (4) of section 589.19, Florida Statutes, is amended to read: 589.19 Creation of certain state forests; naming of certain state forests; Operation Outdoor Freedom Program.— (4) (e)1. A private landowner who provides land for designation and use as an Operation Outdoor Freedom Program hunting site shall have limited liability pursuant to s. 375.251. 2. A private landowner who consents to the designation and use of land as part of the Operation Outdoor Freedom Program without compensation shall be considered a volunteer, as defined in s. 110.501, and shall be covered by state liability protection pursuant to s. 768.28, including s. 768.28(10) 768.28 (9) . 3. This subsection does not: a. Relieve any person of liability that would otherwise exist for deliberate, willful, or malicious injury to persons or property. b. Create or increase the liability of any person. Section 17. Paragraph (c) of subsection (9) of section 616.242, Florida Statutes, is amended to read: 616.242 Safety standards for amusement rides. — Page 14 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 39-01004A-20 20201302 (9) INSURANCE REQUIREMENTS.— (c) The insurance requirements imposed under this subsection do not apply to a governmental entity that is covered by the provisions of s. 768.28(17) s. 768.28(16). Section 18. Section 624.461, Florida Statutes, is amended to read: 624.461 Definition. —For the purposes of the Florida Insurance Code, "self-insurance fund" means both commercial self-insurance funds organized under s. 624.462 and group self- insurance funds organized under s. 624.4621. The term "self- insurance fund" does not include a governmental self-insurance pool created under s. 768.28(17) s. 768.28(16). Section 19. Subsection (6) of section 624.462, Florida Statutes, is amended to read: 624.462 Commercial self-insurance funds.— (6) A governmental self-insurance pool created pursuant to s. 768.28(17) s. 768.28(16) shall not be considered a commercial self-insurance fund. Section 20. Paragraph (b) of subsection (3) of section 627.733, Florida Statutes, is amended to read: 627.733 Required security.— (3) Such security shall be provided: (b) By any other method authorized by s. 324.031(2) or (3) and approved by the Department of Highway Safety and Motor Vehicles as affording security equivalent to that afforded by a policy of insurance or by self -insuring as authorized by s. 768.28(17) s. 768.28(16). The person filing such security shall have all of the obligations and rights of an insurer under ss. 627.730-627.7405. Page 15 of 28 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 39-01004A-20 20201302 Section 21. Subsection (5) of section 760.11, Florida Statutes, is amended to read: 760.11 Administrative and civil remedies; construction.— (5) In any civil action brought under this section, the court may issue an order prohibiting the discriminatory practice and providing affirmative relief from the effects of the practice, including back pay. The court may also award compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages. The provisions of ss. 768.72 and 768.73 do not apply to this section. The judgment for the total amount of punitive damages awarded under this section to an aggrieved person shall not exceed $100,000. In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney att rncy's fee as part of the costs. It is the intent of the Legislature that this provision for attorney att rncy's fees be interpreted in a manner consistent with federal case law involving a Title VII action. The right to trial by jury is preserved in any such private right of action in which the aggrieved person is seeking compensatory or punitive damages, and any party may demand a trial by jury. The commission's determination of reasonable cause is not admissible into evidence in any civil proceeding, including any hearing or trial, except to establish for the court the right to maintain the private right of action. A civil action brought under this section shall be commenced no later than 1 year after the date of determination of reasonable cause by the commission. The commencement of such action shall divest the commission of jurisdiction of the complaint, except that the Page 16 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 39-01004A-20 20201302 commission may intervene in the civil action as a matter of right. Notwithstanding the above, the state and its agencies and subdivisions shall not be liable for punitive damages. The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(6) s. 768.28 (5) . Section 22. Subsection (4) and paragraphs (a) and (b) of subsection (12) of section 766.1115, Florida Statutes, are amended to read: 766.1115 Health care providers; creation of agency relationship with governmental contractors.— (4) CONTRACT REQUIREMENTS. —A health care provider that executes a contract with a governmental contractor to deliver health care services on or after April 17, 1992, as an agent of the governmental contractor is an agent for purposes of s. 768.28(10) s. 768.28(9), while acting within the scope of duties under the contract, if the contract complies with the requirements of this section and regardless of whether the individual treated is later found to be ineligible. A health care provider shall continue to be an agent for purposes of s. 768.28(10) s. 768.28(9) for 30 days after a determination of ineligibility to allow for treatment until the individual transitions to treatment by another health care provider. A health care provider under contract with the state may not be named as a defendant in any action arising out of medical care or treatment provided on or after April 17, 1992, under contracts entered into under this section. The contract must provide that: (a) The right of dismissal or termination of any health Page 17 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 39-01004A-20 20201302 care provider delivering services under the contract is retained by the governmental contractor. (b) The governmental contractor has access to the patient records of any health care provider delivering services under the contract. (c) Adverse incidents and information on treatment outcomes must be reported by any health care provider to the governmental contractor if the incidents and information pertain to a patient treated under the contract. The health care provider shall submit the reports required by s. 395.0197. If an incident involves a professional licensed by the Department of Health or a facility licensed by the Agency for Health Care Administration, the governmental contractor shall submit such incident reports to the appropriate department or agency, which shall review each incident and determine whether it involves conduct by the licensee that is subject to disciplinary action. All patient medical records and any identifying information contained in adverse incident reports and treatment outcomes which are obtained by governmental entities under this paragraph are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution. (d) Patient selection and initial referral must be made by the governmental contractor or the provider. Patients may not be transferred to the provider based on a violation of the antidumping provisions of the Omnibus Budget Reconciliation Act of 1989, the Omnibus Budget Reconciliation Act of 1990, or chapter 395. (e) If emergency care is required, the patient need not be referred before receiving treatment, but must be referred within Page 18 of 28 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 39-01004A-20 20201302 48 hours after treatment is commenced or within 48 hours after the patient has the mental capacity to consent to treatment, whichever occurs later. (f) The provider is subject to supervision and regular inspection by the governmental contractor. (g) As an agent of the governmental contractor for purposes of s. 768.28(10) s. 768.28(9), while acting within the scope of duties under the contract, a health care provider licensed under chapter 466 may allow a patient, or a parent or guardian of the patient, to voluntarily contribute a monetary amount to cover costs of dental laboratory work related to the services provided to the patient. This contribution may not exceed the actual cost of the dental laboratory charges. A governmental contractor that is also a health care provider is not required to enter into a contract under this section with respect to the health care services delivered by its employees. (12) APPLICABILITY. —This section applies to incidents occurring on or after April 17, 1992. This section does not: (a) Apply to any health care contract entered into by the Department of Corrections which is subject to s. 768.28(11)(a) s. 768.28 (10) (a) . (b) Apply to any affiliation agreement or other contract that is subject to s. 768.28 (11) (f) s. 768.28 (10) (f) . Section 23. Paragraph (c) of subsection (6) of section 766.118, Florida Statutes, is amended to read: 766.118 Determination of noneconomic damages.— (6) LIMITATION ON NONECONOMIC DAMAGES FOR NEGLIGENCE OF A PRACTITIONER PROVIDING SERVICES AND CARE TO A MEDICAID Page 19 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 39-01004A-20 20201302 RECIPIENT. —Notwithstanding subsections (2), (3), and (5), with respect to a cause of action for personal injury or wrongful death arising from medical negligence of a practitioner committed in the course of providing medical services and medical care to a Medicaid recipient, regardless of the number of such practitioner defendants providing the services and care, noneconomic damages may not exceed $300,000 per claimant, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. A practitioner providing medical services and medical care to a Medicaid recipient is not liable for more than $200,000 in noneconomic damages, regardless of the number of claimants, unless the claimant pleads and proves, by clear and convincing evidence, that the practitioner acted in a wrongful manner. The fact that a claimant proves that a practitioner acted in a wrongful manner does not preclude the application of the limitation on noneconomic damages prescribed elsewhere in this section. For purposes of this subsection: (c) The term "wrongful manner" means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, and shall be construed in conformity with the standard set forth in s. 768.28 (10) (a) s. 768.28 (9) (a) . Section 24. Paragraph (c) of subsection (2) of section 768.1315, Florida Statutes, is amended to read: 768.1315 Good Samaritan Volunteer Firefighters' Assistance Act; immunity from civil liability.— (2) DEFINITIONS. —As used in this section, the term: (c) "State agency or subdivision" shall have the meaning Page 20 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 39-01004A-20 20201302 provided in s. 768.28(3) s. 768.28(2). Nothing in this section shall be construed as a waiver of sovereign immunity. Section 25. Subsection (4) of section 768.135, Florida Statutes, is amended to read: 768.135 Volunteer team physicians; immunity.— (4) As used in this section, the term "wrongful manner" means in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property, and shall be construed in conformity with the standard set forth in s. 768.28 (10) (a) s. 768.28 (9) (a) . Section 26. Subsection (2) of section 944.713, Florida Statutes, is amended to read: 944.713 Insurance against liability.— (2) The contract shall provide for indemnification of the state by the private vendor for any liabilities incurred up to the limits provided under s. 768.28(6) s. 768.28(5). The contract shall provide that the private vendor, or the insurer of the private vendor, is liable to pay any claim or judgment for any one person which does not exceed the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments arising out of the same incident or occurrence, does not exceed the sum of $200,000. In addition, the contractor must agree to defend, hold harmless, and indemnify the department against any and all actions, claims, damages and losses, including costs and attorney att rncy's fees. Section 27. Subsection (3) of section 984.09, Florida Page 21 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 39-01004A-20 20201302 Statutes, is amended to read: 984.09 Punishment for contempt of court; alternative sanctions.— (3) ALTERNATIVE SANCTIONS. —Each judicial circuit shall have an alternative sanctions coordinator who shall serve under the chief administrative judge of the juvenile division of the circuit court, and who shall coordinate and maintain a spectrum of contempt sanction alternatives in conjunction with the circuit plan implemented in accordance with s. 790.22(4)(c). Upon determining that a child has committed direct contempt of court or indirect contempt of a valid court order, the court may immediately request the alternative sanctions coordinator to recommend the most appropriate available alternative sanction and shall order the child to perform up to 50 hours of community -service manual labor or a similar alternative sanction, unless an alternative sanction is unavailable or inappropriate, or unless the child has failed to comply with a prior alternative sanction. Alternative contempt sanctions may be provided by local industry or by any nonprofit organization or any public or private business or service entity that has entered into a contract with the Department of Juvenile Justice to act as an agent of the state to provide voluntary supervision of children on behalf of the state in exchange for the manual labor of children and limited immunity in accordance with s. 768.28(12) s. 768.28(11). Section 28. Subsection (3) of section 985.037, Florida Statutes, is amended to read: 985.037 Punishment for contempt of court; alternative sanctions. — Page 22 of 28 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 39-01004A-20 20201302 (3) ALTERNATIVE SANCTIONS. —Each judicial circuit shall have an alternative sanctions coordinator who shall serve under the chief administrative judge of the juvenile division of the circuit court, and who shall coordinate and maintain a spectrum of contempt sanction alternatives in conjunction with the circuit plan implemented in accordance with s. 790.22(4)(c). Upon determining that a child has committed direct contempt of court or indirect contempt of a valid court order, the court may immediately request the alternative sanctions coordinator to recommend the most appropriate available alternative sanction and shall order the child to perform up to 50 hours of community -service manual labor or a similar alternative sanction, unless an alternative sanction is unavailable or inappropriate, or unless the child has failed to comply with a prior alternative sanction. Alternative contempt sanctions may be provided by local industry or by any nonprofit organization or any public or private business or service entity that has entered into a contract with the Department of Juvenile Justice to act as an agent of the state to provide voluntary supervision of children on behalf of the state in exchange for the manual labor of children and limited immunity in accordance with s. 768.28(12) s. 768.28(11). Section 29. Paragraph (1) of subsection (3) of section 1002.55, Florida Statutes, is amended to read: 1002.55 School -year prekindergarten program delivered by private prekindergarten providers.— (3) To be eligible to deliver the prekindergarten program, a private prekindergarten provider must meet each of the following requirements: Page 23 of 28 CODING: Words stricken are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 39-01004A-20 20201302 (1) Notwithstanding paragraph (j), for a private prekindergarten provider that is a state agency or a subdivision thereof, as defined in s. 768.28(3) s. 768.28(2), the provider must agree to notify the coalition of any additional liability coverage maintained by the provider in addition to that otherwise established under s. 768.28. The provider shall indemnify the coalition to the extent permitted by s. 768.28. Section 30. Paragraph (p) of subsection (1) of section 1002.88, Florida Statutes, is amended to read: 1002.88 School readiness program provider standards; eligibility to deliver the school readiness program.— (1) To be eligible to deliver the school readiness program, a school readiness program provider must: (p) Notwithstanding paragraph (m), for a provider that is a state agency or a subdivision thereof, as defined in s. 768.28(3) s. 768.28(2), agree to notify the coalition of any additional liability coverage maintained by the provider in addition to that otherwise established under s. 768.28. The provider shall indemnify the coalition to the extent permitted by s. 768.28. Section 31. Paragraph (e) of subsection (4) and paragraph (d) of subsection (5) of section 1004.41, Florida Statutes, are amended to read: 1004.41 University of Florida; J. Hillis Miller Health Center.— (4) (e) Shands Teaching Hospital and Clinics, Inc., in support of the health affairs mission of the University of Florida Board of Trustees and with the board's prior approval, may create or Page 24 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 39-01004A-20 20201302 have created either for -profit or not -for -profit subsidiaries and affiliates, or both. The University of Florida Board of Trustees, which may act through the president of the university or his or her designee, may control Shands Teaching Hospital and Clinics, Inc. For purposes of sovereign immunity pursuant to s. 768.28(3) s. 768.28(2), Shands Teaching Hospital and Clinics, Inc., and any not -for -profit subsidiary which directly delivers health care services and whose governing board is chaired by the president of the university or his or her designee and is controlled by the University of Florida Board of Trustees, which may act through the president of the university or his or her designee and whose primary purpose is the support of the University of Florida Board of Trustees' health affairs mission, shall be conclusively deemed a corporation primarily acting as an instrumentality of the state. (5) (d) For purposes of sovereign immunity pursuant to s. 768.28(3) s. 768.28(2), Shands Jacksonville Medical Center, Inc., Shands Jacksonville HealthCare, Inc., and any not -for - profit subsidiary which directly delivers health care services and whose governing board is chaired by the President of the University of Florida or his or her designee and is controlled by the University of Florida Board of Trustees, which may act through the president of the university or his or her designee and whose primary purpose is the support of the University of Florida Board of Trustees' health affairs mission, shall be conclusively deemed corporations primarily acting as instrumentalities of the state. Section 32. Subsection (1) of section 1004.43, Florida Page 25 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 39-01004A-20 20201302 Statutes, is amended to read: 1004.43 H. Lee Moffitt Cancer Center and Research Institute. —There is established the H. Lee Moffitt Cancer Center and Research Institute, a statewide resource for basic and clinical research and multidisciplinary approaches to patient care. (1) The Board of Trustees of the University of South Florida shall enter into a lease agreement for the utilization of the lands and facilities on the campus of the University of South Florida to be known as the H. Lee Moffitt Cancer Center and Research Institute, including all furnishings, equipment, and other chattels used in the operation of such facilities, with a Florida not -for -profit corporation organized solely for the purpose of governing and operating the H. Lee Moffitt Cancer Center and Research Institute. The lease agreement with the not - for -profit corporation shall be rent free as long as the not - for -profit corporation and its subsidiaries utilize the lands and facilities primarily for research, education, treatment, prevention, and early detection of cancer or for teaching and research programs conducted by state universities or other accredited medical schools or research institutes. The lease agreement shall provide for review of construction plans and specifications by the University of South Florida for consistency with the university's campus master plan, impact on the university's utilities infrastructure, compliance with applicable building codes and general design characteristics, and compatibility with university architecture, as appropriate. The not -for -profit corporation may, with the prior approval of the Board of Governors, create either for -profit or not -for - Page 26 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 39-01004A-20 20201302 profit corporate subsidiaries, or both, to fulfill its mission. The not -for -profit corporation and any approved not -for -profit subsidiary shall be conclusively deemed corporations primarily acting as instrumentalities of the state, pursuant to s. 768.28(3) s. 768.28(2), for purposes of sovereign immunity. For - profit subsidiaries of the not -for -profit corporation may not compete with for -profit health care providers in the delivery of radiation therapy services to patients. The not -for -profit corporation and its subsidiaries are authorized to receive, hold, invest, and administer property and any moneys received from private, local, state, and federal sources, as well as technical and professional income generated or derived from practice activities of the institute, for the benefit of the institute and the fulfillment of its mission. The affairs of the corporation shall be managed by a board of directors who shall serve without compensation. The President of the University of South Florida and the chair of the Board of Governors, or his or her designee, shall be directors of the not -for -profit corporation. Each director shall have only one vote, shall serve a term of 3 years, and may be reelected to the board. Other than the President of the University of South Florida and the chair of the Board of Governors, directors shall be elected by a majority vote of the board. The chair of the board of directors shall be selected by majority vote of the directors. Section 33. Paragraph (a) of subsection (2) of section 1004.447, Florida Statutes, is amended to read: 1004.447 Florida Institute for Human and Machine Cognition, Inc.— (2) The corporation and any authorized and approved Page 27 of 28 CODING: Words strickcn are deletions; words underlined are additions. Florida Senate - 2020 SB 1302 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 39-01004A-20 20201302 subsidiary: (a) Shall be a corporation primarily acting as an instrumentality of the state, pursuant to s. 768.28(3) 768.28(2), for purposes of sovereign immunity. Section 34. Paragraph (b) of subsection (2) of section 1006.261, Florida Statutes, is amended to read: 1006.261 Use of school buses for public purposes.— (2) (b) For purposes of liability for negligence, state agencies or subdivisions as defined in s. 768.28(3) s. 768.28(2) shall be covered by s. 768.28. Every other corporation or organization shall provide liability insurance coverage in the minimum amounts of $100,000 on any claim or judgment and $200,000 on all claims and judgments arising from the same incident or occurrence. Section 35. Sections 45.061, 110.504, 111.071, 163.01(15)(k), 190.043, 213.015, 284.31, 284.38, 337.19, 341.302, 373.1395, 375.251, 393.075, 403.706, 409.993, 455.221, 455.32, 456.009, 472.006, 497.167, 548.046, 556.106, 768.295, 946.5026, 946.514, 961.06, 1002.33, 1002.333, 1002.34, 1002.77, and 1002.83, Florida Statutes, are reenacted for the purpose of incorporating the amendment made by this act to s. 768.28, Florida Statutes, in references thereto. Section 36. This act shall take effect October 1, 2020. Page 28 of 28 CODING: Words strickcn are deletions; words underlined are additions.