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Liability Limit Children Service Providers Mulled

By: Margie Menzel, The News Service of Florida
By: Margie Menzel, The News Service of Florida

THE CAPITAL, TALLAHASSEE, Mar. 8, 2011 --

Legislative Republicans are proposing to put a cap on lawsuit damages that could be paid out by Florida’s community-based care organizations, which contract with the state to provide children’s services.

The most they’d be on the hook for would be $500,000 per claim, down from $1 million for individual defendants, under the bill. It would also limit claims in cases where multiple providers are found to be liable for damages.

The bills, SB 1500 and HB 1019, sponsored by Sen. Jack Latvala, R-St. Petersburg, and Rep. Scott Plakon, R-Longwood, would also limit the liability of the Florida Department of Children and Families for the performance of its contractors.

Plakon said he’s sponsoring the bill to protect the outsourcing system.

“Over the past number of years, some attorneys have figured out that since (the services) are no longer with DCF, that they can sue these private, non-profit organizations that are doing the best they can to take care of children, and make money from the process,” Plakon said.

He said lawsuits are threatening the whole process, discouraging community organizations from caring for the children.

“And the alternative to the (community-based organizations) is unthinkable, and that is sending all these children back to DCF, a government agency,” Plakon said.

But Senate Democratic Leader Nan Rich, D-Weston, said the caps would reduce the incentive for the contractors to do their jobs properly. She pointed to the recent tragedy of the 10-year-old Barahona twins, Nubia and Victor, considered one of the worst child abuse cases in state history. On Feb. 14, Nubia was found dead and Victor convulsing, both doused with toxic substances.

“The Barahona case is an example of why we need more accountability and responsibility in the foster care system, not less,” said Rich. “Limited liability would mean less. We are already seeing, as a result of the task force investigating the Barahona case, the lack of coordination, the lack of accountability as far as the performance indicators are concerned.”

Those indicators, she said, show that community-based contractors conducted qualitative supervisory reviews and follow-through only 50 percent of the time.

Former DCF Secretary George Sheldon said he understood the concern behind the legislation, but doesn’t support it.

“I just don’t think it’s the right thing to do,” he said. “It really is overkill.”

Sheldon acknowledged the threat that a $25 or $30 million lawsuit could shut down a community-based care organization.

“What I’ve suggested is, rather than cut the blanket sovereign immunity, that they go to a catastrophic sovereign immunity,” said Sheldon. He suggested limits of “$3 million per claim, $6 million per incident, but if it’s an award over $10 million, (the organization’s) insurance would pay up to that amount and their sovereign immunity could kick in.”

Michael Cusick, CEO of the Florida Children’s Coalition and a supporter of the proposal, said the Barahona case was a tragedy, but said the Legislature would still be able to make larger liability awards in the most egregious cases.

“We want to make sure that wherever the fault is, that’s where the liability is,” he said. “What we don’t want is because these not-for-profit charitable groups have insurance policies, for the trial lawyer to claim that the private not-for-profit was only one or two percent at fault, or marginally, but they have an insurance policy and the state has sovereign immunity limits, well, let’s go after their money even though the state was really the one that was the problem.”

Both sides agree, however, that outsourcing children’s services is an improvement over the old system.

Cusick said the number of adoptions and the amount of time caseworkers spend with children have increased.

“We’re the only state in the country where 98 percent of the children are seen every month,” he said.

Rich said she has supported the community organizations taking on part of the child welfare role and worked to get them as many resources as possible. “But I think providing them with limited liability is a disincentive for them to go that extra mile and do what has to be done for the most vulnerable children in the state welfare system.”

Sheldon, too, said the outsourcing system is an improvement. “It puts [DCF] in the position of overseeing and really focusing on best practices and quality, as opposed to the ongoing operation.

“The other benefit is that you have the community involved, and if you look around the state, those areas where you have a strong community involvement, I think you’ve seen some pretty good care,” Sheldon said.

However, he said, the contractors have to take their risks as well.

“You can’t have the benefits of privatization and none of the downside,” he said. “Privatization means you have to be held accountable for mistakes that adversely impact somebody else.”


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