| 1 | Representative(s) Bean offered the following: |
| 2 |
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| 3 | Amendment (with title amendment) |
| 4 | Remove everything after the enacting clause and insert: |
| 5 | Section 1. Subsection (4) of section 393.0661, Florida |
| 6 | Statutes, is amended, and subsection (5) is added to that |
| 7 | section, to read: |
| 8 | 393.0661 Home and community-based services delivery |
| 9 | system; comprehensive redesign.--The Legislature finds that the |
| 10 | home and community-based services delivery system for persons |
| 11 | with developmental disabilities and the availability of |
| 12 | appropriated funds are two of the critical elements in making |
| 13 | services available. Therefore, it is the intent of the |
| 14 | Legislature that the Agency for Persons with Disabilities shall |
| 15 | develop and implement a comprehensive redesign of the system. |
| 16 | (4) Nothing in this section or in any administrative rule |
| 17 | shall be construed to prevent or limit the Agency for Health |
| 18 | Care Administration, in consultation with the Agency for Persons |
| 19 | with Disabilities, from adjusting fees, reimbursement rates, |
| 20 | lengths of stay, number of visits, or number of services, or |
| 21 | from limiting enrollment, or making any other adjustment |
| 22 | necessary to comply with the availability of moneys and any |
| 23 | limitations or directions provided for in the General |
| 24 | Appropriations Act. If at any time, based upon an analysis by |
| 25 | the Agency for Health Care Administration in consultation with |
| 26 | the Agency for Persons with Disabilities, the cost of home and |
| 27 | community-based waiver services are expected to exceed the |
| 28 | appropriated amount, the Agency for Health Care Administration |
| 29 | may implement any adjustment, including provider rate |
| 30 | reductions, within 30 days in order to remain within the |
| 31 | appropriation. |
| 32 | (5) The Agency for Persons with Disabilities shall submit |
| 33 | quarterly status reports to the Executive Office of the |
| 34 | Governor, the chair of the Senate Ways and Means Committee, and |
| 35 | the chair of the House Fiscal Council regarding the financial |
| 36 | status of home and community-based services provided under the |
| 37 | federally approved waiver, including, but not limited to, the |
| 38 | number of clients currently being served through the program and |
| 39 | information concerning the actual and projected costs as |
| 40 | compared to the amount of the appropriation available to the |
| 41 | program. If at any time an analysis by the agency finds that the |
| 42 | cost of services is expected to exceed the amount appropriated, |
| 43 | based on the current rates as implemented on November 1, 2003, |
| 44 | the agency shall implement any adjustment that is necessary |
| 45 | under subsection (4) in order to remain within the |
| 46 | appropriation. |
| 47 | Section 2. Paragraph (d) of subsection (15) of section |
| 48 | 440.02, Florida Statutes, is amended to read: |
| 49 | 440.02 Definitions.--When used in this chapter, unless the |
| 50 | context clearly requires otherwise, the following terms shall |
| 51 | have the following meanings: |
| 52 | (15) |
| 53 | (d) "Employee" does not include: |
| 54 | 1. An independent contractor who is not engaged in the |
| 55 | construction industry. |
| 56 | a. In order to meet the definition of independent |
| 57 | contractor, at least four of the following criteria must be met: |
| 58 | (I) The independent contractor maintains a separate |
| 59 | business with his or her own work facility, truck, equipment, |
| 60 | materials, or similar accommodations; |
| 61 | (II) The independent contractor holds or has applied for a |
| 62 | federal employer identification number, unless the independent |
| 63 | contractor is a sole proprietor who is not required to obtain a |
| 64 | federal employer identification number under state or federal |
| 65 | regulations; |
| 66 | (III) The independent contractor receives compensation for |
| 67 | services rendered or work performed and such compensation is |
| 68 | paid to a business rather than to an individual; |
| 69 | (IV) The independent contractor holds one or more bank |
| 70 | accounts in the name of the business entity for purposes of |
| 71 | paying business expenses or other expenses related to services |
| 72 | rendered or work performed for compensation; |
| 73 | (V) The independent contractor performs work or is able to |
| 74 | perform work for any entity in addition to or besides the |
| 75 | employer at his or her own election without the necessity of |
| 76 | completing an employment application or process; or |
| 77 | (VI) The independent contractor receives compensation for |
| 78 | work or services rendered on a competitive-bid basis or |
| 79 | completion of a task or a set of tasks as defined by a |
| 80 | contractual agreement, unless such contractual agreement |
| 81 | expressly states that an employment relationship exists. |
| 82 | b. If four of the criteria listed in sub-subparagraph a. |
| 83 | do not exist, an individual may still be presumed to be an |
| 84 | independent contractor and not an employee based on full |
| 85 | consideration of the nature of the individual situation with |
| 86 | regard to satisfying any of the following conditions: |
| 87 | (I) The independent contractor performs or agrees to |
| 88 | perform specific services or work for a specific amount of money |
| 89 | and controls the means of performing the services or work. |
| 90 | (II) The independent contractor incurs the principal |
| 91 | expenses related to the service or work that he or she performs |
| 92 | or agrees to perform. |
| 93 | (III) The independent contractor is responsible for the |
| 94 | satisfactory completion of the work or services that he or she |
| 95 | performs or agrees to perform. |
| 96 | (IV) The independent contractor receives compensation for |
| 97 | work or services performed for a commission or on a per-job |
| 98 | basis and not on any other basis. |
| 99 | (V) The independent contractor may realize a profit or |
| 100 | suffer a loss in connection with performing work or services. |
| 101 | (VI) The independent contractor has continuing or |
| 102 | recurring business liabilities or obligations. |
| 103 | (VII) The success or failure of the independent |
| 104 | contractor's business depends on the relationship of business |
| 105 | receipts to expenditures. |
| 106 | c. Notwithstanding anything to the contrary in this |
| 107 | subparagraph, an individual claiming to be an independent |
| 108 | contractor has the burden of proving that he or she is an |
| 109 | independent contractor for purposes of this chapter. |
| 110 | 2. A real estate licensee, if that person agrees, in |
| 111 | writing, to perform for remuneration solely by way of |
| 112 | commission. |
| 113 | 3. Bands, orchestras, and musical and theatrical |
| 114 | performers, including disk jockeys, performing in licensed |
| 115 | premises as defined in chapter 562, if a written contract |
| 116 | evidencing an independent contractor relationship is entered |
| 117 | into before the commencement of such entertainment. |
| 118 | 4. An owner-operator of a motor vehicle who transports |
| 119 | property under a written contract with a motor carrier which |
| 120 | evidences a relationship by which the owner-operator assumes the |
| 121 | responsibility of an employer for the performance of the |
| 122 | contract, if the owner-operator is required to furnish motor |
| 123 | vehicle equipment as identified in the written contract and the |
| 124 | principal costs incidental to the performance of the contract, |
| 125 | including, but not limited to, fuel and repairs, provided a |
| 126 | motor carrier's advance of costs to the owner-operator when a |
| 127 | written contract evidences the owner-operator's obligation to |
| 128 | reimburse such advance shall be treated as the owner-operator |
| 129 | furnishing such cost and the owner-operator is not paid by the |
| 130 | hour or on some other time-measured basis. |
| 131 | 5. A person whose employment is both casual and not in the |
| 132 | course of the trade, business, profession, or occupation of the |
| 133 | employer. |
| 134 | 6. A volunteer, except a volunteer worker for the state or |
| 135 | a county, municipality, or other governmental entity. A person |
| 136 | who does not receive monetary remuneration for services is |
| 137 | presumed to be a volunteer unless there is substantial evidence |
| 138 | that a valuable consideration was intended by both employer and |
| 139 | employee. For purposes of this chapter, the term "volunteer" |
| 140 | includes, but is not limited to: |
| 141 | a. Persons who serve in private nonprofit agencies and who |
| 142 | receive no compensation other than expenses in an amount less |
| 143 | than or equivalent to the standard mileage and per diem expenses |
| 144 | provided to salaried employees in the same agency or, if such |
| 145 | agency does not have salaried employees who receive mileage and |
| 146 | per diem, then such volunteers who receive no compensation other |
| 147 | than expenses in an amount less than or equivalent to the |
| 148 | customary mileage and per diem paid to salaried workers in the |
| 149 | community as determined by the department; and |
| 150 | b. Volunteers participating in federal programs |
| 151 | established under Pub. L. No. 93-113. |
| 152 | 7. Unless otherwise prohibited by this chapter, any |
| 153 | officer of a corporation who elects to be exempt from this |
| 154 | chapter. Such officer is not an employee for any reason under |
| 155 | this chapter until the notice of revocation of election filed |
| 156 | pursuant to s. 440.05 is effective. |
| 157 | 8. An officer of a corporation that is engaged in the |
| 158 | construction industry who elects to be exempt from the |
| 159 | provisions of this chapter, as otherwise permitted by this |
| 160 | chapter. Such officer is not an employee for any reason until |
| 161 | the notice of revocation of election filed pursuant to s. 440.05 |
| 162 | is effective. |
| 163 | 9. An exercise rider who does not work for a single horse |
| 164 | farm or breeder, and who is compensated for riding on a case-by- |
| 165 | case basis, provided a written contract is entered into prior to |
| 166 | the commencement of such activity which evidences that an |
| 167 | employee/employer relationship does not exist. |
| 168 | 10. A taxicab, limousine, or other passenger vehicle-for- |
| 169 | hire driver who operates said vehicles pursuant to a written |
| 170 | agreement with a company which provides any dispatch, marketing, |
| 171 | insurance, communications, or other services under which the |
| 172 | driver and any fees or charges paid by the driver to the company |
| 173 | for such services are not conditioned upon, or expressed as a |
| 174 | proportion of, fare revenues. |
| 175 | 11. A person who performs services as a sports official |
| 176 | for an entity sponsoring an interscholastic sports event or for |
| 177 | a public entity or private, nonprofit organization that sponsors |
| 178 | an amateur sports event. For purposes of this subparagraph, such |
| 179 | a person is an independent contractor. For purposes of this |
| 180 | subparagraph, the term "sports official" means any person who is |
| 181 | a neutral participant in a sports event, including, but not |
| 182 | limited to, umpires, referees, judges, linespersons, |
| 183 | scorekeepers, or timekeepers. This subparagraph does not apply |
| 184 | to any person employed by a district school board who serves as |
| 185 | a sports official as required by the employing school board or |
| 186 | who serves as a sports official as part of his or her |
| 187 | responsibilities during normal school hours. |
| 188 | 12. Medicaid-enrolled clients under chapter 393 who are |
| 189 | excluded from the definition of employment under s. |
| 190 | 443.1216(4)(d) and served by Adult Day Training Services under |
| 191 | the Home and Community-Based or the Family and Supported Living |
| 192 | Medicaid Waiver program in a sheltered workshop setting licensed |
| 193 | by the United States Department of Labor for the purpose of |
| 194 | training and earning less than the federal hourly minimum wage. |
| 195 | 13. Medicaid-enrolled clients under chapter 393 who are |
| 196 | excluded from the definition of employment under s. |
| 197 | 443.1216(4)(d) and served by Adult Day Training Services under |
| 198 | the Family and Supported Living Medicaid Waiver program in a |
| 199 | sheltered workshop setting licensed by the United States |
| 200 | Department of Labor for the purpose of training and earning less |
| 201 | than the federal hourly minimum wage. This subparagraph expires |
| 202 | July 1, 2006. |
| 203 | Section 3. This act shall take effect January 1, 2007. |
| 204 |
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| 205 | ======= T I T L E A M E N D M E N T ========== |
| 206 | Remove the entire title and insert: |
| 207 | A bill to be entitled |
| 208 | An act relating to social services; amending s. 393.0661, |
| 209 | F.S.; deleting provisions requiring the Agency for Health |
| 210 | Care Administration to make certain adjustments with |
| 211 | respect to home and community-based services; requiring |
| 212 | that the Agency for Persons with Disabilities report to |
| 213 | the Governor and Legislature the financial status of home |
| 214 | and community-based services provided under a federally |
| 215 | approved waiver; requiring that the agency adjust the |
| 216 | rates for such services in order to remain within the |
| 217 | amount appropriated; amending s. 440.02, F.S.; deleting |
| 218 | provisions providing for the expiration of an exemption |
| 219 | from coverage under workers' compensation law for certain |
| 220 | clients enrolled in the Medicaid program who are served by |
| 221 | Adult Day Training Services; providing an effective date. |