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The Florida Statutes

The 2017 Florida Statutes

Title XLV
TORTS
Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS
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F.S. 766.1115
766.1115 Health care providers; creation of agency relationship with governmental contractors.
(1) SHORT TITLE.This section may be cited as the “Access to Health Care Act.”
(2) FINDINGS AND INTENT.The Legislature finds that a significant proportion of the residents of this state who are uninsured or Medicaid recipients are unable to access needed health care because health care providers fear the increased risk of medical negligence liability. It is the intent of the Legislature that access to medical care for indigent residents be improved by providing governmental protection to health care providers who offer free quality medical services to underserved populations of the state. Therefore, it is the intent of the Legislature to ensure that health care professionals who contract to provide such services as agents of the state are provided sovereign immunity.
(3) DEFINITIONS.As used in this section, the term:
(a) “Contract” means an agreement executed in compliance with this section between a health care provider and a governmental contractor for volunteer, uncompensated services which allows the health care provider to deliver health care services to low-income recipients as an agent of the governmental contractor. For services to qualify as volunteer, uncompensated services under this section, the health care provider, or any employee or agent of the health care provider, must receive no compensation from the governmental contractor for any services provided under the contract and must not bill or accept compensation from the recipient, or a public or private third-party payor, for the specific services provided to the low-income recipients covered by the contract, except as provided in paragraph (4)(g). A free clinic as described in subparagraph (d)14. may receive a legislative appropriation, a grant through a legislative appropriation, or a grant from a governmental entity or nonprofit corporation to support the delivery of contracted services by volunteer health care providers, including the employment of health care providers to supplement, coordinate, or support the delivery of such services. The appropriation or grant for the free clinic does not constitute compensation under this paragraph from the governmental contractor for services provided under the contract, nor does receipt or use of the appropriation or grant constitute the acceptance of compensation under this paragraph for the specific services provided to the low-income recipients covered by the contract.
(b) “Department” means the Department of Health.
(c) “Governmental contractor” means the department, county health departments, a special taxing district with health care responsibilities, or a hospital owned and operated by a governmental entity.
(d) “Health care provider” or “provider” means:
1. A birth center licensed under chapter 383.
2. An ambulatory surgical center licensed under chapter 395.
3. A hospital licensed under chapter 395.
4. A physician or physician assistant licensed under chapter 458.
5. An osteopathic physician or osteopathic physician assistant licensed under chapter 459.
6. A chiropractic physician licensed under chapter 460.
7. A podiatric physician licensed under chapter 461.
8. A registered nurse, nurse midwife, licensed practical nurse, or advanced registered nurse practitioner licensed or registered under part I of chapter 464 or any facility which employs nurses licensed or registered under part I of chapter 464 to supply all or part of the care delivered under this section.
9. A midwife licensed under chapter 467.
10. A health maintenance organization certificated under part I of chapter 641.
11. A health care professional association and its employees or a corporate medical group and its employees.
12. Any other medical facility the primary purpose of which is to deliver human medical diagnostic services or which delivers nonsurgical human medical treatment, and which includes an office maintained by a provider.
13. A dentist or dental hygienist licensed under chapter 466.
14. A free clinic that delivers only medical diagnostic services or nonsurgical medical treatment free of charge to all low-income recipients.
15. Any other health care professional, practitioner, provider, or facility under contract with a governmental contractor, including a student enrolled in an accredited program that prepares the student for licensure as any one of the professionals listed in subparagraphs 4.-9.

The term includes any nonprofit corporation qualified as exempt from federal income taxation under s. 501(a) of the Internal Revenue Code, and described in s. 501(c) of the Internal Revenue Code, which delivers health care services provided by licensed professionals listed in this paragraph, any federally funded community health center, and any volunteer corporation or volunteer health care provider that delivers health care services.

(e) “Low-income” means:
1. A person who is Medicaid-eligible under Florida law;
2. A person who is without health insurance and whose family income does not exceed 200 percent of the federal poverty level as defined annually by the federal Office of Management and Budget; or
3. Any client of the department who voluntarily chooses to participate in a program offered or approved by the department and meets the program eligibility guidelines of the department.
(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(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(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 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 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(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.

(5) NOTICE OF AGENCY RELATIONSHIP.The governmental contractor must provide written notice to each patient, or the patient’s legal representative, receipt of which must be acknowledged in writing, that the provider is an agent of the governmental contractor and that the exclusive remedy for injury or damage suffered as the result of any act or omission of the provider or of any employee or agent thereof acting within the scope of duties pursuant to the contract is by commencement of an action pursuant to the provisions of s. 768.28. With respect to any federally funded community health center, the notice requirements may be met by posting in a place conspicuous to all persons a notice that the federally funded community health center is an agent of the governmental contractor and that the exclusive remedy for injury or damage suffered as the result of any act or omission of the provider or of any employee or agent thereof acting within the scope of duties pursuant to the contract is by commencement of an action pursuant to the provisions of s. 768.28.
(6) QUALITY ASSURANCE PROGRAM REQUIRED.The governmental contractor shall establish a quality assurance program to monitor services delivered under any contract between an agency and a health care provider pursuant to this section.
(7) RISK MANAGEMENT REPORT.The Division of Risk Management of the Department of Financial Services shall annually compile a report of all claims statistics for all entities participating in the risk management program administered by the division, which shall include the number and total of all claims pending and paid, and defense and handling costs associated with all claims brought against contract providers under this section. This report shall be forwarded to the department and included in the annual report submitted to the Legislature pursuant to this section.
(8) REPORTING.
(a) Annually, the department shall report to the President of the Senate, the Speaker of the House of Representatives, and the minority leaders and relevant substantive committee chairpersons of both houses, summarizing the efficacy of access and treatment outcomes with respect to providing health care services for low-income persons pursuant to this section.
(b) The department shall provide an online listing of all providers participating in this program and the number of volunteer service hours and patient visits each provided. A provider may request in writing to the department to be excluded from the online listing.
(9) MALPRACTICE LITIGATION COSTS.Governmental contractors other than the department are responsible for their own costs and attorney’s fees for malpractice litigation arising out of health care services delivered pursuant to this section.
(10) CONTINUING EDUCATION CREDIT.Notwithstanding the maximum allowable credit of 25 percent of continuing education hours pursuant to s. 456.013(9), a provider may fulfill 1 hour of continuing education credit by performing 1 hour of volunteer services to the indigent as provided in this section, up to a maximum of 8 continuing education hours per licensure renewal period.
(11) RULES.The department shall adopt rules to administer this section in a manner consistent with its purpose to provide and facilitate access to appropriate, safe, and cost-effective health care services and to maintain health care quality. Notwithstanding the requirements of paragraph (4)(d), the department shall adopt rules that specify required methods for determination and approval of patient eligibility and referral by government contractors and providers. The rules adopted by the department under this subsection shall give providers the greatest flexibility possible in order to serve eligible patients. The department shall retain review and oversight authority of the patient eligibility and referral determination.
(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(10)(a).
(b) Apply to any affiliation agreement or other contract that is subject to s. 768.28(10)(f).
(c) Reduce or limit the rights of the state or any of its agencies or subdivisions to any benefit currently provided under s. 768.28.
History.s. 1, ch. 92-278; s. 22, ch. 93-129; s. 1, ch. 94-75; s. 246, ch. 94-218; s. 425, ch. 96-406; s. 126, ch. 97-237; s. 9, ch. 97-263; s. 11, ch. 98-49; s. 41, ch. 98-89; s. 233, ch. 98-166; s. 88, ch. 99-3; s. 286, ch. 99-8; s. 49, ch. 2000-242; s. 145, ch. 2000-318; s. 88, ch. 2001-277; s. 114, ch. 2002-1; s. 1900, ch. 2003-261; s. 51, ch. 2003-416; s. 1, ch. 2004-54; s. 1, ch. 2005-118; s. 2, ch. 2011-219; s. 3, ch. 2013-151; s. 1, ch. 2014-108; s. 17, ch. 2016-224.