The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Governmental Oversight and Accountability
BILL: SPB 7026
INTRODUCER: For consideration by the Governmental Oversight and Accountability Committee
SUBJECT: OGSR/Dependent Eligibility Verification Services
DATE: January 12, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Ponder McVaney Pre-meeting
I. Summary:
SPB 7026 amends s. 110.12301, F.S., to save from repeal the current exemption from public
records disclosure for certain information submitted to the Department of Management Services
(DMS) for purposes of dependent eligibility verification for the State Group Insurance Program
(SGI Program).
The bill also revises s. 110.12301, F.S., to provide with specificity the documents that may be
collected by the DMS to verify dependent eligibility and removes a current provision that
permits the collection of “any other information” for such purposes. The bill narrows the
application of the exemption by removing the catch all provision and specifically enumerating
the information that the DMS currently holds as exempt under the catch all provision.
The original public necessity statement for the bill states that it is in the best interest of the public
that records collected for purposes of dependent eligibility verification services conducted for the
SGI Program be confidential and exempt. Employees enrolled in the SGI Program are required
to produce sensitive and personal information to verify their eligibility and that of their
dependent(s). Therefore, protecting such information helps protect state employees and their
families from criminal or inappropriate use of their personal information.
Section 110.12301, F.S., is subject to the Open Government Sunset Review Act and stands
repealed on October 2, 2022, unless reviewed and saved from the repeal through reenactment by
the Legislature. This bill removes the scheduled repeal of the exemption.
This bill does not appear to have a fiscal impact on state or local governments.
This bill takes effect on October 1, 2022.
REVISED: BILL: SPB 7026 Page 2
II. Present Situation:
Public Records Law
The State Constitution provides that the public has the right to inspect or copy records made or
received in connection with official governmental business.
1
This applies to the official business
of any public body, officer, or employee of the state, including all three branches of state
government, local governmental entities, and any person acting on behalf of the government.
2
Chapter 119, F.S., known as the Public Records Act, constitutes the main body of public records
laws.
3
The Public Records Act states that
[i]t is the policy of this state that all state, county, and municipal records are open
for personal inspection and copying by any person. Providing access to public
records is a duty of each agency.
4
The Public Records Act typically contains general exemptions that apply across agencies.
Agency- or program-specific exemptions often are placed in the substantive statutes
relating to that particular agency or program.
The Public Records Act does not apply to legislative or judicial records.
5
Legislative records are
public pursuant to s. 11.0431, F.S. Public records exemptions for the Legislature are codified
primarily in s. 11.0431(2)-(3), F.S., and adopted in the rules of each house of the legislature.
Section 119.011(12), F.S., defines “public records” to include:
All documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of
the physical form, characteristics, or means of transmission, made or
received pursuant to law or ordinance or in connections with the transaction
of official business by any agency.
The Florida Supreme Court has interpreted this definition to encompass all materials made or
received by an agency in connection with official business which are used to “perpetuate,
communicate, or formalize knowledge of some type.”
6
The Florida Statutes specify conditions under which public access to governmental records must
be provided. The Public Records Act guarantees every person’s right to inspect and copy any
state or local government public record at any reasonable time, under reasonable conditions, and
1
FLA. CONST., art. I, s. 24(a).
2
Id.
3
Public records laws are found throughout the Florida Statutes.
4
Section 119.01(1), F.S.
5
Locke v. Hawkes, 595 So. 2d 32, 34 (Fla. 1992); see also Times Pub. Co. v. Ake, 660 So. 2d 255 (Fla. 1995).
6
Shevin v. Byron, Harless, Schaffer, Reid and Assoc. Inc., 379 So. 2d 633, 640 (Fla. 1980). BILL: SPB 7026 Page 3
under supervision by the custodian of the public record.
7
A violation of the Public Records Act
may result in civil or criminal liability.
8
Only the Legislature may create an exemption to public records requirements.
9
An exemption
must be created by general law and must specifically state the public necessity justifying the
exemption.
10
Further, the exemption must be no broader than necessary to accomplish the stated
purpose of the law. A bill enacting an exemption may not contain other substantive provisions
11
and must pass by a two-thirds vote of the members present and voting in each house of the
Legislature.
12
When creating a public records exemption, the Legislature may provide that a record is “exempt”
or “confidential and exempt.” There is a difference between records the Legislature has
determined to be exempt from the Public Records Act and those which the Legislature has
determined to be exempt from the Public Records Act and confidential.
13
Records designated as
“confidential and exempt” are not subject to inspection by the public and may only be released
under the circumstances defined by statute.
14
Records designated as “exempt” may be released at
the discretion of the records custodian under certain circumstances.
15
Open Government Sunset Review Act
The provisions of s. 119.15, F.S., known as the Open Government Sunset Review Act (the Act),
prescribe a legislative review process for newly created or substantially amended public records
or open meetings exemptions,
16
with specified exceptions.
17
The Act requires the repeal of such
exemption on October 2nd of the fifth year after creation or substantial amendment; in order to
save an exemption from repeal, the Legislature must reenact the exemption or repeal the sunset
date.
18
In practice, many exemptions are continued by repealing the sunset date, rather than
reenacting the exemption.
The Act provides that a public records or open meetings exemption may be created or
maintained only if it serves an identifiable public purpose and is no broader than is necessary.
19
An exemption serves an identifiable purpose if it meets one of the following purposes and the
Legislature finds that the purpose of the exemption outweighs open government policy and
cannot be accomplished without the exemption:
7
Section 119.07(1)(a), F.S.
8
Section 119.10, F.S. Public records laws are found throughout the Florida Statutes, as are the penalties for violating those
laws.
9
FLA. CONST., art. I, s. 24(c).
10
Id.
11
The bill may, however, contain multiple exemptions that relate to one subject.
12
FLA. CONST., art. I, s. 24(c)
13
WFTV, Inc. v. The Sch. Bd. of Seminole County, 874 So. 2d 48, 53 (Fla. 5
th
DCA 2004).
14
Id.
15
Williams v. City of Minneola, 575 So. 2d 683 (Fla. 5
th
DCA 1991).
16
Section 119.15, F.S. Section 119.15(4)(b), F.S., provides that an exemption is considered to be substantially amended if it
is expanded to include more records or information or to include meetings.
17
Section 119.15(2)(a) and (b), F.S., provides that exemptions required by federal law or applicable solely to the Legislature
or the State Court System are not subject to the Open Government Sunset Review Act.
18
Section 119.15(3), F.S.
19
Section 119.15(6)(b), F.S. BILL: SPB 7026 Page 4
It allows the state or its political subdivision to effectively and efficiently administer a
program, and administration would be significantly impaired without the exemption;
20
Releasing sensitive personal information would be defamatory or would jeopardize an
individual’s safety. If this public purpose is cited as the basis of an exemption, however, only
personal identifying information is exempt;
21
or
It protects trade or business secrets.
22
The Act also requires specified questions to be considered during the review process.
23
In
examining an exemption, the Act directs the Legislature to question the purpose and necessity of
reenacting the exemption.
If, in reenacting an exemption or repealing the sunset date, the exemption is expanded, then a
public necessity statement and a two-thirds vote for passage are required.
24
If the exemption is
reenacted or saved from repeal without substantive changes or if the exemption is narrowed, then
a public necessity statement and a two-thirds vote for passage are not required. If the Legislature
allows an exemption to expire, the previously exempt records will remain exempt unless
otherwise provided by law.
25
State Group Insurance Program
Overview
The State Group Insurance Program (SGI Program) is created by s. 110.123, F.S., and is
administered by the Division of State Group Insurance (DSGI) within the Department of
Management Services (DMS). The SGI Program is an optional benefit for state employees
employed by state agencies, state universities, the court system, and the Legislature. The SGI
Program administers health, life, dental, vision, disability, and other supplemental insurance
benefits.
State Health Insurance Plans
The SGI Program provides four options for employees and retirees to choose as their health plan:
The standard Preferred Provider Organization (PPO) plan, administered by Florida Blue.
The high deductible PPO plan, administered by Florida Blue.
20
Section 119.15(6)(b)1., F.S.
21
Section 119.15(6)(b)2., F.S.
22
Section 119.15(6)(b)3., F.S.
23
Section 119.15(6)(a), F.S. The specified questions are:
What specific records or meetings are affected by the exemption?
Whom does the exemption uniquely affect, as opposed to the general public?
What is the identifiable public purpose or goal of the exemption?
Can the information contained in the records or discussed in the meeting be readily obtained by alternative means?
If so, how?
Is the record or meeting protected by another exemption?
Are there multiple exemptions for the same type of record or meeting that it would be appropriate to merge?
24
FLA. CONST. art. I, s. 24(c).
25
Section 119.15(7), F.S. BILL: SPB 7026 Page 5
The standard health maintenance organization (HMO) services.
26
The high deductible HMO.
Pharmacy Benefit
The SGI Program also has a pharmacy benefit for members of the plan. The SGI Program covers
all federal legend drugs (open formulary) for covered medical conditions and employs very
limited utilization review and clinical review for traditional or specialty prescription drugs. The
DMS contracts with CVS/Caremark, a pharmacy benefits manager, to administer the
Prescription Drug Plan.
27
Eligible Employees
The SGI Program is open to the following individuals:
All state officers;
All state employees paid from “salaries and benefits” appropriation categories, regardless of
the number of hours worked;
Retired state officers and state employees;
Surviving spouses of deceased state officers and state employees;
Certain terminated state officers and state employees; and
Certain state employees paid from “other-personal-services” (OPS) appropriation categories.
For OPS employees to be eligible to participate in the health insurance program, the employee
must
28
:
Be reasonably expected to work an average of at least 30 hours per week; and
Have worked an average of at least 30 hours per week during the person’s measurement
period (which is 12 consecutive months
29
of employment).
Dependent Eligibility
The SGI Program covers employees and retirees of state agencies and their eligible dependents.
An eligible dependent is defined as:
A current spouse to whom the member is legally married.
A biological child, child with a qualified medical support order, legally adopted child, or
child placed in the home for the purpose of adoption in accordance with applicable state and
federal laws, through the end of the calendar year in which he/she turns age 26.
A stepchild, for as long as the member remains legally married to the child’s parent, through
the end of the calendar year in which he/she turns age 26.
A foster child placed in the member’s home by the Department of Children and Families
Foster Care Program or the foster care program of a licensed private agency, through the end
of the calendar year in which he/she turns age 26.
26
These are provided by Aetna, AvMed, Capital Health Plan, and UnitedHealthcare. One of these HMO plans is offered in
each county in the State of Florida.
27
myBenefits, Prescription Drug Plan,
https://www.mybenefits.myflorida.com/health/health_insurance_plans/prescription_drug_plan (last viewed January 6, 2022)
28
Section 110.123(2)(c)2., F.S.
29
Section 110.123(13)(d), F.S. BILL: SPB 7026 Page 6
A child for whom the member has legal guardianship through the end of the calendar year in
which he/she turns age 26.
An over-age dependent, after the end of the calendar year in which he/she turns 26, through
the end of the calendar year in which he/she turns 30 – if he/she is unmarried, has no
dependents of his/her own, is a resident of Florida or a full- or part-time student, and has no
other health insurance.
An over-age dependent with a disability.
A newborn dependent of a member’s covered child for up to 18 months of age as long as the
newborn’s parent remains covered.
A child of law enforcement, probation, or correctional officers who were killed in the line of
duty, who are attending a college or university beyond their 18th birthday.
A surviving spouse and dependents.
Dependents may be added as covered dependents during the open enrollment period each year or
in the event of a qualifying status change. Minimal information is collected by the DMS to
determine eligibility.
Dependent Eligibility Verification
During the 2017 Legislative Session, the DSGI was directed to contract with a vendor to verify
the eligibility of all dependents participating in the SGI Plan. The DSGI provided notice to all
subscribers and on July 1, 2020, via the People First Service Center, began requesting
subscribers to provide documents as part of the dependent eligibility verification process. The
documents include tax transcripts from the Internal Revenue Service, marriage licenses, birth
certificates, adoption documents, and other documents.
30
Enrollment
For FY 2020-21, the final enrollment reflected 175,046 subscribers and 187,244 dependents,
totaling 362,290 covered lives.
31
Approximately 47.1% of subscribers are enrolled in PPO plans,
52.3% are enrolled in HMO plans, and 0.6% are enrolled in a Medicare Advantage Prescription
Drug plan.
32
Subscriber enrollment in individual coverage was 47.8%, and 52.2% were enrolled
in family coverage, which had an average size of 3.05 members.
33
Open Government Sunset Review of the Public Records Exemption for Dependent Eligibility
Verification
In September 2021, the Senate Governmental Oversight and Accountability Committee and the
House Government Operations Subcommittee spoke with representatives of the DMS regarding
the need to maintain the exemption for records collected for the purposes of dependent eligibility
verification services conducted for the SGI Program. Additionally, an Open Government Sunset
Review Questionnaire was provided to the DMS.
30
See s. 110.12301(2)(b), F.S.
31
State Employee’s Group Health Self-Insurance Trust Fund, Report on Financial Outlook, For the Fiscal Years Ending June
30, 2021 through June 30, 2026, http://edr.state.fl.us/content/conferences/healthinsurance/HealthInsuranceOutlook.pdf (last
visited January 7, 2022).
32
Id. at p. 1.
33
Id. BILL: SPB 7026 Page 7
The DMS recommended that the exemption remain in effect with changes to remove obsolete
language and to include specified documentation that is routinely collected under the “catch-all”
provision
34
- “any other information.”
III. Effect of Proposed Changes:
Section 1 amends s. 110.12301, F.S., to designate the Department of Management Services
(DMS) rather than the Division of State Group Insurance, as the entity that contracts for
dependent eligibility verification services for the State Group Insurance Program. This section is
amended to permit the department, in addition to the contractor as provided for in current law, to
require certain information from subscribers for dependent eligibility verification.
The bill permits subscribers to submit the following attestations by sworn affidavit consistent
with s. 92.50, F.S., (attestation), if specified information cannot be produced:
An attestation of marriage to prove a spouse’s eligibility, if a joint federal income tax return
or government-issued marriage certificate cannot be produced.
35
An attestation of the subscriber-dependent relationship to prove a biological child or a
newborn grandchild’s eligibility, if a birth certificate cannot be produced.
An attestation of the subscriber-dependent relationship to prove an adopted child’s eligibility,
if an adoption certificate or an adoption placement agreement and petition for adoption
cannot be produced.
The bill further amends s. 110.12301(2), F.S., as follows:
To Prove Eligibility of: Documentation Required:
A child under a guardianship A copy of the court order naming the
subscriber or the subscriber’s spouse as the
child’s legal guardian or custodian.
A foster child Records showing the subscriber or the
subscriber’s spouse as the dependent’s foster
parent
An unmarried child age 26 to 30 A copy of the child’s government-issued
birth certificate or adoption certificate
naming the subscriber or the subscriber’s
spouse as the child’s parent, or a copy of
the court order naming the subscriber or
the subscriber’s spouse as the child’s legal
guardian or custodian;
A copy of the Certification of Over-Age
Dependent Eligibility Form; and
34
Section 110.12301(2)(b)5., F.S.
35
Section 110.12301(2)(a)1.a., F.S., requires for a marriage of less than 12 months, submission of government-issued
marriage certificate, if a joint federal income tax return has not been filed. Section 110.12301(2)(a) and b., F.S., require
submission of a BILL: SPB 7026 Page 8
A document confirming the child’s current
enrollment as a student, including the
name of the child, the name of the school,
and the school term; or a bill or statement
in the child’s name which is dated within
the past 60 days and is mailed to the child
at a Florida address.
A disabled child age 26 or older A copy of the child’s government-issued
birth certificate or adoption certificate
naming the subscriber or the subscriber’s
spouse as the child’s parent, or a copy of
the court order naming the subscriber or
the subscriber’s spouse as the child’s legal
guardian or custodian; and
A copy of the subscriber’s most recent
federal income tax return listing the
child’s name and the last four digits of the
child’s social security number and
identifying the child as the subscriber’s
dependent for tax purposes.
The section amends the document retention provision in s. 110.12301(2)(f), F.S., to replace
“contractor” with the DMS and requires the DMS to retain all documentation obtained to
conduct the dependent eligibility verification services in accordance with the applicable records
retention schedule.
The section deletes the scheduled repeal of the exemption relating to documentation held by the
DMS (or its agent) for the purposes of dependent eligibility verification services.
Section 2 provides that the bill takes effect on October 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities
have to raise revenue in the aggregate, nor reduce the percentage of state tax shared with
counties or municipalities.
B. Public Records/Open Meetings Issues:
Vote Requirement
Article I, s. 24(c) of the State Constitution requires a two-thirds vote of the members
present and voting for final passage of a bill creating or expanding an exemption to the
public records requirements. The bill revises the type of records that the DMS or a BILL: SPB 7026 Page 9
contractor providing dependent eligibility verification services may require from a
subscriber. These “new” records covered by the exemption, however, are, as a matter of
current and historical practice, routinely collected by the DMS for dependent eligibility
verification under the authority of s. 110.12301(2)(b)(5), F.S., which allows the DMS to
request “any other information.” The bill removes this catch all provision and specifically
enumerates the records that subscribers are required to submit for dependent eligibility
verification. Thus, the revisions narrow the application of the public records exemption to
the documentation specified by law. Because this bill continues a current public records
exemption with revisions that narrow its application, the bill does not require an
extraordinary vote for enactment.
Public Necessity Statement
Article I, s. 24(c) of the State Constitution requires a bill creating or expanding an
exemption to the public records requirements to state with specificity the public necessity
justifying the exemption. This bill continues a current public records exemption without
expansion. Thus, a statement of public necessity is not required.
Breadth of Exemption
Article I, s. 24(c) of the State Constitution requires an exemption to the public records
requirements to be no broader than necessary to accomplish the stated purpose of the law.
The purpose of the law is to protect subscriber’s sensitive and personal information
submitted to the DMS for purposes of dependent eligibility verification. This bill exempts
only specified information related to documenting or proving a relationship with a
dependent from the public records requirements. The exemption does not appear to be
broader than necessary to accomplish the purpose of the law.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None. BILL: SPB 7026 Page 10
B. Private Sector Impact:
The private sector will continue to be subject to the cost associated with agency making
redactions in response to a public records request.
C. Government Sector Impact:
Governmental agencies will continue to incur costs related to the redaction of records in
responding to public records requests.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 110.12301 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.