1 | Representative Jones offered the following: |
2 |
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3 | Amendment to Amendment (397883) (with title amendment) |
4 | Between lines 181 and 182, insert: |
5 | Section 106. Section 400.0245, Florida Statutes, is |
6 | created to read: |
7 | 400.0245 Adverse action against employee for disclosing |
8 | information of specified nature prohibited; employee remedy and |
9 | relief.- |
10 | (1) SHORT TITLE.-This section may be cited as the "Nursing |
11 | Home Facility Whistleblower's Act." |
12 | (2) LEGISLATIVE INTENT.-It is the intent of the |
13 | Legislature to prevent nursing home facilities or independent |
14 | contractors from taking retaliatory action against an employee |
15 | who reports to an appropriate person or agency violations of law |
16 | on the part of a facility or independent contractor that create |
17 | a substantial and specific danger to a nursing home facility |
18 | resident's health, safety, or welfare. It is further the intent |
19 | of the Legislature to prevent nursing home facilities or |
20 | independent contractors from taking retaliatory action against |
21 | any person who discloses information to an appropriate agency |
22 | alleging improper use of or gross waste of governmental funds, |
23 | or any other abuse or gross neglect of duty on the part of a |
24 | nursing home facility. |
25 | (3) DEFINITIONS.-As used in this section, the term: |
26 | (a) "Adverse personnel action" means the discharge, |
27 | suspension, transfer, or demotion of any employee or the |
28 | withholding of bonuses, the reduction in salary or benefits, or |
29 | any other adverse action taken against an employee within the |
30 | terms and conditions of employment by a nursing home facility or |
31 | independent contractor. |
32 | (b) "Agency" means any state, regional, county, local, or |
33 | municipal government entity, whether executive, judicial, or |
34 | legislative, or any official, officer, department, division, |
35 | bureau, commission, authority, or political subdivision thereof. |
36 | (c) "Employee" means a person who performs services for, |
37 | and under the control and direction of, or contracts with, a |
38 | nursing home facility or independent contractor for wages or |
39 | other remuneration. |
40 | (d) "Gross mismanagement" means a continuous pattern of |
41 | managerial abuses, wrongful or arbitrary and capricious actions, |
42 | or fraudulent or criminal conduct which may have a substantial |
43 | adverse economic impact. |
44 | (e) "Independent contractor" means a person who is engaged |
45 | in any business and enters into a contract with a nursing home |
46 | facility. |
47 | (4) ACTIONS PROHIBITED.- |
48 | (a) A nursing home facility or an independent contractor |
49 | shall not dismiss, discipline, or take any other adverse |
50 | personnel action against an employee for disclosing information |
51 | pursuant to the provisions of this section. |
52 | (b) A nursing home facility or an independent contractor |
53 | shall not take any adverse action that affects the rights or |
54 | interests of a person in retaliation for the person's disclosure |
55 | of information under this section. |
56 | (c) The provisions of this subsection shall not be |
57 | applicable when an employee or person discloses information |
58 | known by the employee or person to be false. |
59 | (5) NATURE OF INFORMATION DISCLOSED.-The information |
60 | disclosed under this section must include: |
61 | (a) Any violation or suspected violation of any federal, |
62 | state, or local law, rule, or regulation committed by an |
63 | employee or agent of a nursing home facility or independent |
64 | contractor which creates and presents a substantial and specific |
65 | danger to the nursing home facility resident's health, safety, |
66 | or welfare. |
67 | (b) Any act or suspected act of gross mismanagement, |
68 | malfeasance, misfeasance, gross waste of public funds, or gross |
69 | neglect of duty committed by an employee or agent of a nursing |
70 | home facility or independent contractor. |
71 | (6) TO WHOM INFORMATION DISCLOSED.-The information |
72 | disclosed under this section must be disclosed to any agency or |
73 | Federal Government entity or person designated in s. |
74 | 400.022(1)(c) having the authority to investigate, police, |
75 | manage, or otherwise remedy the violation or act. |
76 | (7) EMPLOYEES AND PERSONS PROTECTED.-This section protects |
77 | employees and persons who disclose information on their own |
78 | initiative in a written and signed complaint; who are requested |
79 | to participate in an investigation, hearing, or other inquiry |
80 | conducted by any agency or Federal Government entity; who refuse |
81 | to participate in any adverse action prohibited by this section; |
82 | or who initiate a complaint through any appropriate complaint |
83 | hotline. No remedy or other protection under this section |
84 | applies to any person who has committed or intentionally |
85 | participated in committing the violation or suspected violation |
86 | for which protection under this section is being sought. |
87 | (8) REMEDIES.-Any person protected by this section may |
88 | bring a civil action in any court of competent jurisdiction |
89 | against a nursing home facility for any action prohibited by |
90 | this section. |
91 | (9) RELIEF.-In any action brought under this section, the |
92 | relief may include the following: |
93 | (a) Reinstatement of the employee to the same position |
94 | held before the adverse action was commenced or to an equivalent |
95 | position, or reasonable front pay as alternative relief. |
96 | (b) Reinstatement of the employee's full fringe benefits |
97 | and seniority rights, as appropriate. |
98 | (c) Compensation, if appropriate, for lost wages, lost |
99 | benefits, or other lost remuneration caused by the adverse |
100 | action. |
101 | (d) Payment of reasonable costs, including attorney's |
102 | fees, to a substantially prevailing employee, or to the |
103 | prevailing employer if the employee filed a frivolous action in |
104 | bad faith. |
105 | (e) Issuance of an injunction, if appropriate, by a court |
106 | of competent jurisdiction. |
107 | (f) Temporary reinstatement to the employee's former |
108 | position or to an equivalent position, pending the final outcome |
109 | on the complaint, if an employee complains of being discharged |
110 | in retaliation for a protected disclosure and if a court of |
111 | competent jurisdiction determines that the disclosure was not |
112 | made in bad faith or for a wrongful purpose or occurred after a |
113 | nursing home facility's or independent contractor's initiation |
114 | of a personnel action against the employee that includes |
115 | documentation of the employee's violation of a disciplinary |
116 | standard or performance deficiency. |
117 | (10) PENALTIES.- |
118 | (a) A nursing home facility determined by the agency to |
119 | have committed an action prohibited under subsection (4) is |
120 | subject to the penalties set forth in s. 400.23(8)(a). |
121 | (b) In addition, a violation of subsection (4) constitutes |
122 | a felony of the third degree, punishable as provided in s. |
123 | 775.082 or s. 775.083. |
124 | (11) REWARD.-Any person protected by this section who |
125 | discloses information as provided in paragraph (5)(b) related to |
126 | gross waste of public funds shall be awarded $10,000, which sum |
127 | shall be paid from the Resident Protection Trust Fund. |
128 | (12) POSTING OF NOTICE.-Each facility licensed under this |
129 | part shall prominently post notice of the protections, rewards, |
130 | and remedies provided under this section, along with the |
131 | telephone numbers for making reports, and shall provide such |
132 | notice to all employees of the facility within 30 days after the |
133 | effective date of this section and to all new employees hired |
134 | subsequent to that date. |
135 | (13) DEFENSES.-It shall be an affirmative defense to any |
136 | action brought pursuant to this section that the adverse action |
137 | was predicated upon grounds other than, and would have been |
138 | taken absent, the employee's or person's exercise of rights |
139 | protected by this section. |
140 | (14) EXISTING RIGHTS.-This section does not diminish the |
141 | rights, privileges, or remedies of an employee under any other |
142 | law or rule or under any collective bargaining agreement or |
143 | employment contract. |
144 |
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145 |
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146 | ----------------------------------------------------- |
147 | T I T L E A M E N D M E N T |
148 | Remove line 209 and insert: |
149 | entities; creating s. 400.0245, F.S.; creating the |
150 | "Nursing Home Facility Whistleblower's Act"; prohibiting |
151 | retaliatory actions from nursing home facilities and |
152 | independent contractors against an employee for disclosing |
153 | certain information; providing legislative intent; |
154 | providing definitions; specifying prohibited actions for |
155 | nursing home facilities and independent contractors; |
156 | specifying the nature of information disclosed, to whom |
157 | such information is disclosed, and employees and persons |
158 | who are protected after disclosing certain information; |
159 | authorizing civil actions for violations; providing for |
160 | relief and civil and criminal penalties; providing a |
161 | reward for information disclosed; requiring facilities to |
162 | post notice of protections, rewards, and remedies; |
163 | providing defenses to certain actions; protecting existing |
164 | rights of employees; providing applicability; providing |
165 | for |