HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 871 Sovereign Immunity for Child Protection Teams
SPONSOR(S): Snyder
TIED BILLS: IDEN./SIM. BILLS: SB 826
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 18 Y, 0 N Mathews Jones
2) Children, Families & Seniors Subcommittee 17 Y, 0 N Rahming Brazzell
3) Judiciary Committee 17 Y, 0 N Mathews Kramer
SUMMARY ANALYSIS
Under s. 39.201(2)(a), F.S., suspected child abuse, neglect, or abandonment by a parent, caregiver, custodian,
or guardian of a child is reported to the Department of Children and Families (DCF). DCF has a central abuse
hotline that is available twenty-four hours a day for reporting such abuse, neglect, or abandonment. A Child
Protection Team (CPT) is responsible for receiving referrals from DCF to provide specialized support and
services in processing child abuse, neglect, and abandonment cases. CPT services are funded by state
general revenue and social services block grant funds through DCF.
The Florida Department of Health’s (DOH) Division of Children’s Medical Services (CMS), Bureau of Child
Protection and Special Technologies staff provides oversight of the statewide CPT system. A CPT generally
consists of a group of physician-directed professionals who evaluate allegations of abuse, neglect, or
abandonment; assess risks; and provide recommendations for child safety and support services.
Currently, individual government employees, officers, and agents are immune from civil liability for damages
caused by an action arising within the scope of employment. Such immunity from civil liability does not extend
to actions made in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard for
human rights, safety, or property. The government entity is not liable for tortious actions arising outside the
scope of the employee’s employment. Case law indicates that contracted CPT physician consultants have
immunity from civil liability under certain circumstances because in those situations the physician consultants
are acting as agents of the state.
There are approximately 238 CPT members who are independent contractors. DOH acknowledges that any
CPT members acting within the scope and direction of their contractual duties may assert a claim of sovereign
immunity as a defense to an action against that CPT member. However, if the trier of fact rejects the
sovereign immunity claim, DOH’s indemnification and hold harmless contract provisions would presumably
apply, requiring the contractor to indemnify and defend DOH.
HB 871 expands the immunity from civil liability to include any member of a CPT, which includes independent
contractors. Therefore, any member of a CPT is immune from civil liability for actions arising out of the scope
of his or her employment under the control, direction, and supervision of the state or any of its agencies or
subdivisions.
The bill has an indeterminate fiscal impact on state government. The bill has no fiscal impact on local
governments.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0871e.JDC
DATE: 4/15/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Waiver of Sovereign Immunity
Sovereign immunity is a principle under which a government cannot be sued without its consent.1
Article X, section 13 of the Florida Constitution allows the Legislature to waive this immunity. A limited
statutory waiver of sovereign immunity permits tort lawsuits against Florida and its agencies and
subdivisions for damages resulting from the negligence of a government officer, employee, or agent
acting in the scope of employment.2 This liability exists only where a private person would be liable for
the same conduct.3 The waiver of sovereign immunity applies only to “injury or loss of property,
personal injury, or death caused by the negligent or wrongful act or omission of any employee of the
agency or subdivision while acting within the scope of the employee’s office or employment ....”4
An individual government employee, officer, or agent is immune from suit or liability for damages
caused by any action taken in the scope of his or her employment unless the damages result from an
action made in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard
for human rights, safety, or property.5 A government entity is not liable for any damages resulting from
actions by an employee outside the scope of his or her employment or for damages resulting from
actions committed by the employee in bad faith, with malicious purpose, or in a manner exhibiting
wanton and willful disregard for human rights, safety, or property.6
For purposes of this immunity from liability, an “officer, employee, or agent” includes, but is not limited
to any:
Health care provider when providing services pursuant to s. 766.1115, F.S.;
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 (10)(f); and
Public defender or her or his employee or agent, including, an assistant public defender and an
investigator.7
Damages
Current law caps tort recovery from a governmental entity at $200,000 per person and $300,000 per
accident.8 The limits apply to all elements of the monetary award to a plaintiff against a sovereignly
immune entity.9 The limited waiver of immunity does not apply to punitive damages or interest for the
period before judgment.10 Additionally, an attorney may not charge more than 25 percent of any
judgment or settlement.11
Claim Bills
Although an “excess” judgment award may be entered by a court, the statutory limitations make it
impossible, absent a claim bill passed by the Legislature, for a claimant to collect more than the limits
1 Sovereign immunity, Legal Information Institute, https://www.law.cornell.edu/wex/sovereign_immunity (last visited Apr. 15, 2021).
2 S. 768.28(1), F.S.
3 Id.
4 City of Pembroke Pines v. Corrections Corp. of America, Inc., 274 So. 3d 1105, 1112 (Fla. 4th DCA 2019).
5 S. 768.28(9)(a), F.S.
6 Id.
7 S. 768.28(9)(b)2., F.S.
8 S. 768.28(5), F.S.
9 Gallagher v. Manatee County. 927 So. 2d 914, 918 (Fla. 2d DCA 2006).
10 S. 768.28(5), F.S.
11 S. 768.28(8), F.S.
STORAGE NAME: h0871e.JDC PAGE: 2
DATE: 4/15/2021
identified above.12 A claim bill, also known as a relief act, is a bill that compensates a particular
individual or entity for injuries or losses occasioned by the negligence or error of a public officer or
agency.13 It is not an action at law, but rather is a legislative measure that directs a relevant
government entity or officer to pay a specific sum of money to a claimant to satisfy an obligation.14
A government entity may, without a claim bill, settle a claim against it for an amount above the limits in
s. 768.28, F.S., if that amount is within the limits of insurance coverage.15
Child Protection Teams
The Florida Department of Health (DOH) currently contracts with 22 independent, community-based
organizations that serve as child protection teams.16 A “Child Protection Team” (CPT) is a team of
professionals established by the DOH to receive referrals from the protective investigators and
protective supervision staff of the Department of Children and Families (DCF) and to provide
specialized and supportive services to the program in processing child abuse,17 abandonment,18 or
neglect cases.19, 20 The teams perform medical evaluations, assess risks, and provide
recommendations for child safety and support services.21
Composition and Responsibilities
The CPT is one of six programs that make up the Division of Children’s Medical Services (CMS) of
DOH. The CPTs, within the CMS, have 22 district offices.22 Each office must be available 24 hours a
day, every day, to provide immediate medical diagnosis and evaluation, for consultations by phone, or
for other assessment services.23
Services
When a CPT accepts a referral from DCF or law enforcement, the team must be able to provide, in
part, the following services:
Medical diagnosis and evaluation services;
Nursing assessments;
Child and family social assessments;
Multidisciplinary case staffings;
Psychological and psychiatric diagnosis and evaluations;
Specialized and forensic interviews; and
12 S. 768.28(5), F.S.; Breaux v. City of Miami Beach, 899 So. 2d 1059 (Fla. 2005).
13 The Florida Senate, The Florida House of Representatives Civil Justice Subcommittee, Legislative Claim Bill Manual, Policies,
Procedures, and Information Concerning Introduction and Passage, p. , August 2019,
https://www.flsenate.gov/PublishedContent/ADMINISTRATIVEPUBLICATIONS/leg-claim-manual.pdf (last visited Apr. 15, 2021).
14 Wagner v. Orange Cty., 960 So. 2d 785, 788 (Fla. 5th DCA 2007).
15 S. 768.28(5), F.S.
16 Florida Department of Health (DOH), Agency Analysis for HB 871, Mar. 2, 2021.
17 S. 39.01(2), F.S., defines “abuse” as any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or
harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.
18 S. 39.01(1), F.S., defines “abandoned” or “abandonment” as a situation in which the parent or legal custodian of a child or, in the
absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution to the child’s care and
maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both. “Establish or maintain a
substantial and positive relationship” means, in part, frequent and regular contact with the child, and the exercise of parental rights and
responsibilities.
19 S. 39.01(50), F.S., states “neglect” occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing,
shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s
physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired, except when such
circumstances are caused primarily by financial inability unless services have been offered and rejected by such person.
20 S. 39.01(13), F.S.
21 Florida Department of Children and Families, CFOP 170-5, Chapter 9, p. 1 (Feb. 1, 2021),
https://www.myflfamilies.com/admin/publications/cfops/CFOP%20170-xx%20Child%20Welfare/CFOP%20170-
05%20%20Child%20Protective%20Investigations/CFOP%20170-
05,%20%20Chapter%2009,%20Coordination%20with%20Child%20Protection%20Team.pdf (last visited Apr. 15, 2021).
22 The Florida Department of Health, Children’s Medical Services Child Protection Teams, 2020, http://www.cms-
kids.com/home/contact/cpt.pdf (last visited Apr. 15, 2021).
23 The Florida Department of Health, Children’s Medical Services, Child Protection Team Program Handbook, p. 4 (June 28, 2019),
http://www.cms-kids.com/providers/prevention/documents/handbook_cpt.pdf (last visited Apr. 15, 2021).
STORAGE NAME: h0871e.JDC PAGE: 3
DATE: 4/15/2021
Expert medical, psychological, and related professional testimony in court cases.24
Cases Referred to a Child Protection Team
The following cases involving child abuse, abandonment, or neglect that are reported to the Central
Abuse Hotline must be referred to a CPT:
Head injuries, bruises to the head or neck, burns, or fractures in a child, regardless of age.
Bruises that appear anywhere on a child who is five years old or younger.
Alleged child sexual abuse.
A sexually transmitted disease that occurs in a prepubescent child.
Reported malnutrition or failure to thrive.
Medical neglect.
Instances of a child or sibling remaining in a home where a child has been pronounced dead on
arrival at a hospital or a child has been injured and then died due to suspected abuse,
abandonment, or neglect.
Symptoms of serious emotional issues occurring in a child.25
Employees and Sovereign Immunity
The CPTs operate under the oversight of a medical director who is a board-certified pediatrician with
special training in child abuse and neglect.26 According to DOH, Florida’s CPTs have approximately
364 team members, excluding medical directors, who are employed by private, non-profit entities.27
Each team includes a medical director, other physicians, advanced practice registered nurses,
physician assistants, registered nurses, team coordinators, case coordinators, and support staff.28 State
universities and county governmental entities employ approximately 126 of the team members.29 The
remaining 238 or so members are independent contractors.
Sovereign Immunity and Child Protection Team Physicians
It is not definitively settled whether all CPT physicians are covered under sovereign immunity. Whether
sovereign immunity applies depends on the degree of control that the state maintains over the agent on
a case-by-case basis. In Stoll v. Noel,30 the Florida Supreme Court explained that, under the
appropriate circumstances, independent contractor physicians may be agents of the state for purposes
of sovereign immunity, and therefore protected.
The Stoll Court examined an employment contract between CMS physicians and the state to determine
whether the state’s right to control was sufficient to create an agency relationship, and held that it did.
The manuals and guides given to physician consultants demonstrated that CMS had final authority over
all care and treatment provided to CMS patients, and that CMS could refuse to allow a physician
consultant’s recommended course of treatment of any CMS patient for either medical or budgetary
reasons. The Court’s conclusion was supported by the state’s acknowledgement that the manual
creates an agency relationship between CMS and its physician consultants, and the state
acknowledged full financial responsibility for the physicians’ actions. The Court noted that the state’s
interpretation of its manual was entitled to judicial deference and great weight.31
Currently, DOH acknowledges that a CPT member acting within the scope and direction of the
contractual duties he or she provides on behalf of DOH may assert a claim of sovereign immunity as a
defense to an action against that CPT member.32 However, it is the trier of fact that ultimately decides
24 S. 39.303(3), F.S. Further, a CPT that is evaluating a report of medical neglect and assessing the health care needs of a medically
complex child is required to consult with a physician who has experience in treating children with the same condition.
25 S. 39.303(4), F.S.
26 S. 39.303(2)(a), F.S.
27 Supra note 16, at 2.
28 Id.
29 Id.
30 Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997).
31 Id.
32 Supra note 16, at 6.
STORAGE NAME: h0871e.JDC PAGE: 4
DATE: 4/15/2021
whether sovereign immunity is a defense to an action. If the trier of fact rejects a sovereign immunity
claim, DOH’s indemnification and hold harmless contract provisions33 presumably apply requiring the
contractor to indemnify and defend DOH.34 In such case, the contractor may be required to join the
lawsuit prior to the final determination by the trier of fact.35
Litigation Cases
Since FY 2006-2007, there have been a total of 33 claims involving some level of
involvement with CPTs:36
Division of Risk Management Claims Involving Child Protection Team Members
Notice of Claim
Fiscal Year Lawsuits Total Claims Current Status
Only37
2006-2007 9 2 11 All Closed
2007-2008 4 1 5 All Closed
2008-2009 4 1 5 All Closed
2009-2010 0 1 1 All Closed
2010-2011 0 1 1 All Closed
2011-2012 0 1 1