House Bill 4445e1
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HB 4445, First Engrossed
1 A bill to be entitled
2 An act relating to certified nursing
3 assistants; creating part XV of chapter 468,
4 F.S.; providing a short title; providing
5 definitions; providing duties and powers of the
6 Department of Health in regulating the practice
7 of certified nursing assistants; providing
8 requirements for a state registry of certified
9 nursing assistants; providing requirements for
10 obtaining certification as a certified nursing
11 assistant; authorizing the department to deny,
12 suspend, or revoke a person's certification
13 upon certain findings or reports of abuse,
14 neglect, or exploitation; authorizing the
15 department to exempt an applicant or
16 certificateholder from disqualification of
17 certification; specifying certain acts that
18 constitute grounds for disciplinary sanctions;
19 providing penalties; requiring that the
20 department maintain a registry of certified
21 nursing assistants; providing requirements for
22 records and meetings held for disciplinary
23 actions; providing for renewal of
24 certification; exempting an employer from
25 liability for terminating a certified nursing
26 assistant under certain circumstances;
27 authorizing the department to contract for
28 examination services; providing penalties;
29 providing rulemaking authority; amending s.
30 400.211, F.S.; deleting obsolete provisions
31 with respect to the regulation of certified
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HB 4445, First Engrossed
1 nursing assistants by the Department of
2 Business and Professional Regulation; providing
3 for certain federal requirements to apply to
4 specified nursing home facilities under certain
5 circumstances; amending ss. 20.43, 400.4255,
6 400.462, 400.506, 455.667, F.S., relating to
7 the Department of Health, the use of licensed
8 personnel in assisted living facilities, the
9 regulation of home health agencies, nurse
10 registries, and the ownership and control of
11 patient records; conforming cross-references to
12 changes made by the act; providing for the
13 continued validity of certifications issued
14 before the effective date of the act;
15 authorizing certain positions for the Florida
16 Department of Law Enforcement in excess of
17 those otherwise authorized; providing funding;
18 amending s. 455.624, F.S.; specifying health
19 care professionals for whom failure to wear
20 certain identification while offering services
21 to the public is grounds for disciplinary
22 action; authorizing the Department of Health to
23 have access to a background screening registry
24 for nursing home employees; providing an
25 effective date.
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27 Be It Enacted by the Legislature of the State of Florida:
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29 Section 1. Part XV of chapter 468, Florida Statutes,
30 consisting of sections 468.820, 468.821, 468.822, 468.823,
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HB 4445, First Engrossed
1 468.824, 468.825, 468.8245, 468.826, and 468.827, Florida
2 Statutes, is created to read:
3 468.820 Short title.--This part may be cited as the
4 "Certified Nursing Assistant Act."
5 468.821 Definitions.--As used in this part, the term:
6 (1) "Approved training program" means a course of
7 training conducted by a public or private educational center
8 licensed by the Department of Education to implement the basic
9 curriculum for certified nursing assistants which is approved
10 by the Department of Education.
11 (2) "Certified nursing assistant" means a person who
12 meets the qualifications specified in this part and who is
13 certified by the department as a certified nursing assistant.
14 (3) "Department" means the Department of Health.
15 (4) "Registry" means the listing of certified nursing
16 assistants maintained by the department.
17 468.822 Duties and powers of the department.--The
18 department shall regulate the practice of certified nursing
19 assistants in this state. The department shall maintain, or
20 contract with or approve another entity to maintain, a state
21 registry of certified nursing assistants. The registry must
22 consist of a database including the name of each certified
23 nursing assistant in this state, other identifying
24 information, certification status, the effective date of
25 certification and any other information required by state or
26 federal law, information regarding any abuse, neglect, or
27 exploitation as provided under chapter 435, and an indication
28 whether the certified nursing assistant was reimbursed for the
29 cost of training and testing. The registry shall be accessible
30 to individuals, employers, and other state agencies. The
31 department shall establish testing procedures for use in
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HB 4445, First Engrossed
1 certifying nursing assistants and shall adopt rules regulating
2 the practice of certified nursing assistants to enforce this
3 part. The department may contract with or approve another
4 entity or organization to provide the examination services
5 required under 468.823, including development and
6 administration of examinations. The provider shall pay all
7 reasonable costs and expenses incurred by the department in
8 evaluating the provider's application and the provider's
9 performance during the delivery of services, including
10 examination services and procedures for maintaining the
11 certified nursing assistant registry registry.
12 468.823 Certified nursing assistants; certification
13 requirement.--
14 (1) Except as provided in subsection (2), a person may
15 not practice as a certified nursing assistant unless the
16 person is certified by the department under this part. A
17 person who is certified under this part may use the title
18 "Certified Nursing Assistant" and the abbreviation "C.N.A."
19 (2) A registered nurse or a practical nurse licensed
20 under chapter 464, or an applicant for licensure as a
21 registered nurse or a practical nurse who is permitted to
22 practice nursing in accordance with rules adopted by the Board
23 of Nursing, may practice as a certified nursing assistant and
24 use the title "Certified Nursing Assistant" and the
25 abbreviation "C.N.A."
26 (3) The department shall issue a certificate to
27 practice as a certified nursing assistant to any person who
28 demonstrates the ability to read and write and meets the
29 requirements of level 1 screening as provided in s. 435.03,
30 including a search for any report of abuse, neglect, or
31 exploitation of an adult. A person who has not maintained
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HB 4445, First Engrossed
1 continuous residency within the state for the 5 years
2 immediately preceding the date of application must comply with
3 the requirements for level 2 screening as provided in s.
4 435.04 and may be granted provisional certification for up to
5 180 days pending the receipt of written findings evidencing
6 completion of level 2 screening. Level 2 screening is not
7 required if an applicant attests in writing, under penalty of
8 perjury, that he or she meets the residency requirement. In
9 order to complete the requirements for Level 2 screening, if
10 applicable, the applicant must furnish to the department a
11 full set of fingerprints to enable a criminal background
12 investigation to be conducted. The department shall submit the
13 completed fingerprint card to the Florida Department of Law
14 Enforcement, which may submit the fingerprints to the Federal
15 Bureau of Investigation for a national criminal history
16 records check. The results of the criminal history records
17 check shall be returned to the department as a part of level 2
18 screening pursuant to s. 435.04. An applicant must supply any
19 missing criminal history information or other necessary
20 information to the department within 30 days after the
21 department requests the information or be subject to automatic
22 disqualification of eligibility for certification. Evidence of
23 compliance with the requirements of chapter 435, F.S., within
24 the last two years, may satisfy the background screening
25 requirements of this subsection if there has not been a break
26 in employment for a period greater than 180 days since the
27 completion of the screening. In addition, an applicant must
28 meet one of the following requirements:
29 (a) Has successfully completed an approved training
30 program and achieved a minimum score, established by rule of
31 the department, on the Florida Nursing Assistant Competency
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HB 4445, First Engrossed
1 Evaluation, which consists of a written portion and skills
2 demonstration portion approved by the department and
3 administered at a site and by personnel approved by the
4 department.
5 (b) Has achieved a minimum score, established by rule
6 of the department, on the Florida Nursing Assistant Competency
7 Evaluation, which consists of a written portion and skills
8 demonstration portion, approved by the department and
9 administered at a site and by personnel approved by the
10 department and:
11 1. Has a high school diploma, or its equivalent; or
12 2. Is at least 16 years of age.
13 (c) Is currently certified in another state; is listed
14 on that state's certified nursing assistant registry; has not
15 been found to have committed abuse, neglect, or exploitation
16 in that state; and has successfully completed a national
17 nursing assistant evaluation in order to receive certification
18 in that state.
19 (4) If an applicant fails to pass the Florida Nursing
20 Assistant Competency Evaluation in three attempts, the
21 applicant is not eligible for reexamination unless the
22 applicant completes an approved training program.
23 (5) An oral examination shall be administered as a
24 substitute for the written portion of the examination upon
25 request.
26 468.824 Denial, suspension, or revocation of
27 certification; certified nursing assistant registry.--
28 (1) The department may deny, suspend, or revoke the
29 certification of any certified nursing assistant, based upon
30 written notification from a court of competent jurisdiction,
31 law enforcement agency, or administrative agency of any
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1 finding of guilt of, regardless of adjudication, or a plea of
2 nolo contendere or guilty to, any offense set forth in the
3 level 1 or level 2, if appropriate screening standards of
4 chapter 435 or any confirmed report of abuse, neglect, or
5 exploitation. However, the department may, upon the request of
6 an applicant or a certificateholder, exempt the applicant or
7 certificateholder from disqualification of certification under
8 this subsection and issue a letter of exemption.
9 (2) The following acts constitute grounds for which
10 the department may impose disciplinary sanctions as specified
11 in subsection (3):
12 (a) Making misleading, deceptive, or fraudulent
13 representations on an application for certification.
14 (b) Obtaining or renewing, or attempting to obtain or
15 renew, a certificate by bribery, by fraudulent
16 misrepresentation, or through an error of the department.
17 (c) Intentionally violating any rule of the
18 department.
19 (d) Failing to report to the department any person
20 whom the certificateholder knows to be in violation of this
21 part or failing to report a violation involving abuse to the
22 Department of Children and Family Services.
23 (e) Making or filing a report that the
24 certificateholder knows to be false.
25 (f) Exercising influence on the patient or client in
26 such a manner as to exploit the patient or client for the
27 financial gain of the certificateholder or a third party.
28 (g) Improperly interfering with an investigation or
29 inspection authorized by law or with any disciplinary
30 proceeding.
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1 (3) When the department finds any person guilty of any
2 of the grounds set forth in subsection (2), it may enter an
3 order imposing one or more of the following penalties:
4 (a) Denial, suspension, or revocation of
5 certification.
6 (b) Imposition of an administrative fine not to exceed
7 $150 for each count or separate offense.
8 (4) The department shall, by rule, designate approved
9 treatment programs for impaired practitioners as provided in
10 s. 455.707(1).
11 (5) A certified nursing assistant shall notify the
12 department in writing of any change in name or address within
13 30 days after the change.
14 468.8245 Availability of disciplinary records and
15 proceedings.--Notwithstanding s. 455.621, any complaint or
16 record maintained by the Department of Health pursuant to the
17 discipline of a certified nursing assistant and any proceeding
18 held by the department to discipline a certified nursing
19 assistant shall remain open and available to the public.
20 468.825 Renewal of certification.--
21 (1) A certified nursing assistant is eligible for
22 renewal of certification if the applicant has:
23 (a) Worked a minimum of 40 hours for monetary
24 compensation as a certified nursing assistant in a
25 nursing-related occupation during the 24 months immediately
26 preceding application for recertification, as provided in an
27 attestation submitted by the applicant; or
28 (b) Successfully completed the written portion and
29 skills demonstration portion of the Florida Nursing Assistant
30 Competency Evaluation.
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1 (2) Based upon written notification of a court of
2 competent jurisdiction, law enforcement agency, or
3 administrative agency, any person who has been found guilty
4 of, regardless of adjudication, or pled nolo contendere or
5 guilty to, any offense set forth in the level 1, or level 2,
6 if appropriate screening standards of chapter 435, or who is a
7 confirmed perpetrator of any incident of abuse, neglect, or
8 exploitation, may not be recertified under this section unless
9 the person receives an exemption from the department under s.
10 468.824(1).
11 (3) The department may charge a fee determined by
12 rule, but which may not exceed $35, for issuing a duplicate
13 certificate at the request of a certified nursing assistant.
14 468.826 Exemption from liability.--If an employer
15 terminates a certified nursing assistant whose name appears on
16 the central abuse registry and tracking system of the
17 Department of Children and Family Services or on a criminal
18 screening report of the Department of Law Enforcement, the
19 employer is not civilly liable for such termination and a
20 cause of action may not be brought against the employer for
21 damages, regardless of whether the employee has filed for an
22 exemption from the department under s. 468.824(1). There may
23 not be any monetary liability on the part of, and a cause of
24 action for damages may not arise against, any licensed
25 facility, its governing board or members thereof, medical
26 staff, disciplinary board, agents, investigators, witnesses,
27 employees, or any other person for any action taken in good
28 faith without intentional fraud in carrying out this section.
29 468.827 Penalties; rulemaking authority.--
30 (1) It is a misdemeanor of the first degree,
31 punishable as provided under s. 775.082 or s. 775.083, for any
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HB 4445, First Engrossed
1 person, knowingly or intentionally, to fail to disclose, by
2 false statement, misrepresentation, impersonation, or other
3 fraudulent means, in any application for voluntary or paid
4 employment or licensure regulated under this part, a material
5 fact used in making a determination as to such person's
6 qualifications to be an employee or licensee.
7 (2) It is a felony of the third degree, punishable as
8 provided under s. 775.082, s. 775.083, or s. 775.084, for a
9 person to falsely make, alter, forge, or counterfeit a
10 certified nursing assistant certificate or letter of exemption
11 authorized under s. 468.824(1). The department may deny,
12 suspend, or revoke the certification of any nursing assistant
13 found to possess a false, altered, forged, or counterfeit
14 certificate or who attempts to use such a certificate in an
15 attempt to gain employment.
16 (3) The department shall adopt rules to provide for
17 the initial certification and biennial renewal of
18 certification of certified nursing assistants. An application
19 for certification or renewal must be accompanied by a fee set
20 by the department, which may not exceed $35 plus the cost of
21 applicable background screening. The department may
22 periodically audit the records of a certified nursing
23 assistant in accordance with department rules.
24 Section 2. Paragraph (g) of subsection (3) of section
25 20.43, Florida Statutes, is amended to read:
26 20.43 Department of Health.--There is created a
27 Department of Health.
28 (3) The following divisions of the Department of
29 Health are established:
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HB 4445, First Engrossed
1 (g) Division of Medical Quality Assurance, which is
2 responsible for the following boards and professions
3 established within the division:
4 1. Nursing assistants, as provided under part XV of
5 chapter 468 s. 400.211.
6 2. Health care services pools, as provided under s.
7 402.48.
8 3. The Board of Acupuncture, created under chapter
9 457.
10 4. The Board of Medicine, created under chapter 458.
11 5. The Board of Osteopathic Medicine, created under
12 chapter 459.
13 6. The Board of Chiropractic, created under chapter
14 460.
15 7. The Board of Podiatric Medicine, created under
16 chapter 461.
17 8. Naturopathy, as provided under chapter 462.
18 9. The Board of Optometry, created under chapter 463.
19 10. The Board of Nursing, created under chapter 464.
20 11. The Board of Pharmacy, created under chapter 465.
21 12. The Board of Dentistry, created under chapter 466.
22 13. Midwifery, as provided under chapter 467.
23 14. The Board of Speech-Language Pathology and
24 Audiology, created under part I of chapter 468.
25 15. The Board of Nursing Home Administrators, created
26 under part II of chapter 468.
27 16. Occupational therapy, as provided under part III
28 of chapter 468.
29 17. Respiratory therapy, as provided under part V of
30 chapter 468.
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HB 4445, First Engrossed
1 18. Dietetics and nutrition practice, as provided
2 under part X of chapter 468.
3 19. Athletic trainers, as provided under part XIV of
4 chapter 468.
5 20. Electrolysis, as provided under chapter 478.
6 21. The Board of Massage Therapy, created under
7 chapter 480.
8 22. The Board of Clinical Laboratory Personnel,
9 created under part III of chapter 483.
10 23. Medical physicists, as provided under part IV of
11 chapter 483.
12 24. The Board of Opticianry, created under part I of
13 chapter 484.
14 25. The Board of Hearing Aid Specialists, created
15 under part II of chapter 484.
16 26. The Board of Physical Therapy Practice, created
17 under chapter 486.
18 27. The Board of Psychology, created under chapter
19 490.
20 28. The Board of Clinical Social Work, Marriage and
21 Family Therapy, and Mental Health Counseling, created under
22 chapter 491.
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24 The department may contract with the Agency for Health Care
25 Administration who shall provide consumer complaint,
26 investigative, and prosecutorial services required by the
27 Division of Medical Quality Assurance, councils, or boards, as
28 appropriate.
29 Section 3. Section 400.211, Florida Statutes, is
30 amended to read:
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HB 4445, First Engrossed
1 400.211 Persons employed as nursing assistants in a
2 nursing home facility; certification requirement.--
3 (1) A person must be certified pursuant to this
4 section, except a registered nurse or practical nurse licensed
5 in accordance with the provisions of chapter 464 or an
6 applicant for such licensure who is permitted to practice
7 nursing in accordance with rules promulgated by the Board of
8 Nursing pursuant to chapter 464, to serve as a nursing
9 assistant in any nursing home. The Department of Business and
10 Professional Regulation shall issue a certificate to any
11 person who:
12 (a) Has successfully completed a nursing assistant
13 program in a state-approved school and has achieved a minimum
14 score of 75 percent on the written portion of the Florida
15 Nursing Assistant Certification Test approved by the
16 Department of Business and Professional Regulation and
17 administered by state-approved test site personnel;
18 (b) Has achieved a minimum score of 75 percent on the
19 written and performance portions of the Florida Nursing
20 Assistant Certification Test approved by the Department of
21 Business and Professional Regulation and administered by
22 state-approved test site personnel; or
23 (c) Is currently certified in another state, is on
24 that state's registry, has no findings of abuse, and has
25 achieved a minimum score of 75 percent on the written portion
26 of the Florida Nursing Assistant Certification Test approved
27 by the Department of Business and Professional Regulation and
28 administered by state-approved test site personnel.
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30 An oral examination shall be administered upon request.
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1 (2) The agency may deny, suspend, or revoke the
2 certification of any person to serve as a nursing assistant,
3 based upon written notification from a court of competent
4 jurisdiction, law enforcement agency, or administrative agency
5 of any finding of guilt of, regardless of adjudication, or a
6 plea of nolo contendere or guilty to, any offense set forth in
7 the level 1 screening standards of chapter 435 or any
8 confirmed report of abuse of a vulnerable adult.
9 (1)(3) The following categories of persons who are not
10 certified as nursing assistants under part XV of chapter 468
11 this part may be employed by a nursing facility for a period
12 of 4 months:
13 (a) Persons who are enrolled in a state-approved
14 nursing assistant program; or
15 (b) Persons who have been positively verified by a
16 department state-approved test site as certified and on the
17 registry in another state with no findings of abuse, but who
18 have not completed the written examination required under s.
19 468.823 this section.
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21 The certification requirement must be met within 4 months
22 after of initial employment as a nursing assistant in a
23 licensed nursing facility.
24 (4) A person certified under this section on or after
25 September 30, 1990, who has not worked for pay as a nursing
26 assistant in a nursing-related occupation for a period of time
27 during a consecutive 24-month period must be recertified under
28 this section to be eligible to work in a nursing facility.
29 (5) Every certified nursing assistant hired by a
30 nursing home facility on or after October 1, 1993, must,
31 within 5 working days after starting employment at a nursing
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1 home facility, submit to the facility a complete set of
2 information necessary to conduct a records check through the
3 central abuse registry under chapter 415 and a statewide
4 criminal records correspondence check through the Department
5 of Law Enforcement. The facility shall submit the information
6 provided by the employee, within 48 hours, to the Department
7 of Health and Rehabilitative Services' central abuse registry
8 and to the Department of Law Enforcement, which shall conduct
9 a screening according to the provisions of s. 400.497(2).
10 (2)(6) Nursing homes shall require persons seeking
11 employment as a certified nursing assistant to submit an
12 employment history to the facility. The facility shall verify
13 the employment history unless, through diligent efforts, such
14 verification is not possible. There shall be no monetary
15 liability on the part of, and no cause of action for damages
16 shall arise against, a former employer who reasonably and in
17 good faith communicates his or her honest opinion about a
18 former employee's job performance.
19 (3)(7) If the requirements pursuant to the Omnibus
20 Budget Reconciliation Act of 1987, as amended, for the
21 certification of nursing assistants are in conflict with part
22 XV of chapter 468 this section, the federal requirements shall
23 prevail for those nursing home facilities certified to provide
24 care under Title XVIII (Medicare) or Title XIX (Medicaid) of
25 the Social Security Act.
26 (8) The Department of Business and Professional
27 Regulation may adopt such rules as are necessary to carry out
28 this section.
29 Section 4. Paragraph (a) of subsection (1) and
30 subsection (2) of section 400.4255, Florida Statutes, are
31 amended to read:
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1 400.4255 Use of licensed personnel.--
2 (1)(a) Persons under contract to the facility,
3 facility staff, or volunteers, who are licensed according to
4 chapter 464, or those persons exempt under s. 464.022(1), and
5 others as defined by rule, may administer medications to
6 residents, take residents' vital signs, manage individual
7 weekly pill organizers for residents who self-administer
8 medication, give prepackaged enemas ordered by a physician,
9 observe residents, document observations on the appropriate
10 resident's record, report observations to the resident's
11 physician, and contract or allow residents or a resident's
12 representative, designee, surrogate, guardian, or attorney in
13 fact to contract with a third party, provided residents meet
14 the criteria for appropriate placement as defined in s.
15 400.426. Nursing assistants certified pursuant to part XV of
16 chapter 468 s. 400.211 may take residents' vital signs as
17 directed by a licensed nurse or physician.
18 (2) In facilities licensed to provide extended
19 congregate care, persons under contract to the facility,
20 facility staff, or volunteers, who are licensed according to
21 chapter 464, or those persons exempt under s. 464.022(1), or
22 those persons certified as nursing assistants pursuant to part
23 XV of chapter 468 s. 400.211, may also perform all duties
24 within the scope of their license or certification, as
25 approved by the facility administrator and pursuant to this
26 part.
27 Section 5. Subsection (1) of section 400.462, Florida
28 Statutes, is amended to read:
29 400.462 Definitions.--As used in this part, the term:
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1 (1) "Certified nursing assistant" means any person who
2 has been issued a certificate after fulfilling the
3 requirements of part XV of chapter 468 s. 400.211.
4 Section 6. Paragraph (a) of subsection (9) of section
5 400.506, Florida Statutes, is amended to read:
6 400.506 Licensure of nurse registries; requirements;
7 penalties.--
8 (9)(a) A nurse registry may refer for contract in
9 private residences registered nurses and licensed practical
10 nurses registered and licensed under chapter 464, certified
11 nursing assistants certified under part XV of chapter 468 s.
12 400.211, and sitters, companions, or homemakers for the
13 purposes of providing those services authorized under s.
14 400.509(1).
15 Section 7. Paragraph (a) of subsection (2) of section
16 455.667, Florida Statutes, is amended to read:
17 455.667 Ownership and control of patient records;
18 report or copies of records to be furnished.--
19 (2) As used in this section, the terms "records
20 owner," "health care practitioner," and "health care
21 practitioner's employer" do not include any of the following
22 persons or entities; furthermore, the following persons or
23 entities are not authorized to acquire or own medical records,
24 but are authorized to maintain those documents required by the
25 part or chapter under which they are licensed or regulated:
26 (a) Certified nursing assistants regulated under part
27 XV of chapter 468 s. 400.211.
28 Section 8. A certified nursing assistant who holds a
29 valid certification issued under section 400.211, Florida
30 Statutes, before October 1, 1998, is in compliance with this
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1 act and is not subject to renewal of such certification until
2 October 1, 2000.
3 Section 9. Pursuant to section 216.262, Florida
4 Statutes, the Florida Department of Law Enforcement is granted
5 authority to establish positions in excess of the total
6 authorized positions upon submission of a proper request to
7 the Administration Commission. These positions shall be
8 established with funding from the department's Law Enforcement
9 Operating Trust Fund and shall be used to process the
10 increased workload of conducting the criminal history records
11 checks authorized under this section. These positions will be
12 earmarked by the department, and, at such time as they are no
13 longer needed, may be placed in a reserve status for future
14 use.
15 Section 10. Paragraph (t) is added to subsection (1)
16 of section 455.624, Florida Statutes, to read:
17 455.624 Grounds for discipline; penalties;
18 enforcement.--
19 (1) The following acts shall constitute grounds for
20 which the disciplinary actions specified in subsection (2) may
21 be taken:
22 (t) Failing to wear identification, which shall be
23 conspicuously displayed and legible, indicating the
24 practitioner's name and professional title authorized pursuant
25 to part XV, chapter 468, regulating certified nursing
26 assistants, while practicing as an employee of a hospital,
27 clinic, nursing home, or group practice, or at a commercial
28 establishment, offering health care services to the public.
29 Disciplinary actions for violation of this paragraph shall be
30 restricted to a notice of noncompliance pursuant to subsection
31 (3).
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1 Section 11. The Department of Health is authorized to
2 have access to the background screening registry for nursing
3 home employees maintained by the Agency for Health Care
4 Administration, if created by SB 208, 1998 Regular Session, or
5 similar legislation.
6 Section 12. This act shall take effect October 1,
7 1998.
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