| 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 |