Florida Senate - 2021 CS for SB 7070 By the Committees on Rules; and Education 595-04573-21 20217070c1 1 A bill to be entitled 2 An act relating to the impact of COVID-19 on 3 educational institutions; amending s. 464.019, F.S.; 4 requiring the Board of Nursing to extend an approved 5 program’s probationary status under certain 6 circumstances; creating s. 768.39, F.S.; providing 7 legislative findings; defining the term “educational 8 institution”; prohibiting an educational institution 9 that has taken certain reasonably necessary actions to 10 diminish the impact or spread of COVID-19 from being 11 civilly liable for such actions; specifying that the 12 provision of certain services by educational 13 institutions was impossible during certain periods of 14 time; providing that certain reasonably necessary 15 actions are deemed justified; providing that certain 16 publications of educational institutions are not 17 evidence of an express or implied contract to provide 18 specified services during the COVID-19 public health 19 emergency; providing exceptions; providing 20 severability; specifying conditions for an action 21 against an educational institution; providing an 22 effective date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Paragraph (a) of subsection (5) of section 27 464.019, Florida Statutes, is amended to read: 28 464.019 Approval of nursing education programs.— 29 (5) ACCOUNTABILITY.— 30 (a)1. An approved program must achieve a graduate passage 31 rate for first-time test takers which is not more than 10 32 percentage points lower than the average passage rate during the 33 same calendar year for graduates of comparable degree programs 34 who are United States educated, first-time test takers on the 35 National Council of State Boards of Nursing Licensing 36 Examination, as calculated by the contract testing service of 37 the National Council of State Boards of Nursing. For purposes of 38 this subparagraph, an approved program is comparable to all 39 degree programs of the same program type from among the 40 following program types: 41 a. Professional nursing education programs that terminate 42 in a bachelor’s degree. 43 b. Professional nursing education programs that terminate 44 in an associate degree. 45 c. Professional nursing education programs that terminate 46 in a diploma. 47 d. Practical nursing education programs. 48 2. If an approved program’s graduate passage rates do not 49 equal or exceed the required passage rates for 2 consecutive 50 calendar years, the board shall place the program on 51 probationary status pursuant to chapter 120 and the program 52 director shall appear before the board to present a plan for 53 remediation, which shall include specific benchmarks to identify 54 progress toward a graduate passage rate goal. The program must 55 remain on probationary status until it achieves a graduate 56 passage rate that equals or exceeds the required passage rate 57 for any 1 calendar year. The board shall deny a program 58 application for a new prelicensure nursing education program 59 submitted by an educational institution if the institution has 60 an existing program that is already on probationary status. 61 3. Upon the program’s achievement of a graduate passage 62 rate that equals or exceeds the required passage rate, the 63 board, at its next regularly scheduled meeting following release 64 of the program’s graduate passage rate by the National Council 65 of State Boards of Nursing, shall remove the program’s 66 probationary status. If the program, during the 2 calendar years 67 following its placement on probationary status, does not achieve 68 the required passage rate for any 1 calendar year, the board may 69 extend the program’s probationary status for 1 additional year, 70 provided the program has demonstrated adequate progress toward 71 the graduate passage rate goal by meeting a majority of the 72 benchmarks established in the remediation plan. If the program 73 is not granted the 1-year extension or fails to achieve the 74 required passage rate by the end of such extension, the board 75 shall terminate the program pursuant to chapter 120. If a 76 program on probationary status fails to achieve the required 77 passage rate for the 2020 calendar year, including a program 78 subject to termination during the 2021 calendar year, the board 79 shall extend the program’s probationary status for 1 additional 80 year. The board shall grant such extension at a regularly 81 scheduled meeting during the 2021 calendar year. 82 Section 2. Section 768.39, Florida Statutes, is created to 83 read: 84 768.39 Immunity for educational institutions for actions 85 related to the COVID-19 pandemic.— 86 (1) The Legislature finds that during the COVID-19 public 87 health emergency, educational institutions had little choice but 88 to close or restrict access to their campuses in an effort to 89 protect the health of their students, educators, staff, and 90 communities. Despite these efforts, more than 120,000 cases of 91 COVID-19 have been linked to colleges and universities 92 nationwide, and the deaths of more than 100 college students 93 have been attributed to the disease. The Legislature further 94 finds that lawsuits against educational institutions based on 95 their efforts to provide educational services while keeping 96 students, faculty, staff, and communities safe during the COVID 97 19 public health emergency are without legal precedent. One 98 court has even acknowledged that the “legal system is now 99 feeling COVID-19’s havoc with the current wave of class action 100 lawsuits that seek tuition reimbursement related to forced 101 online tutelage.” Under these circumstances, the Legislature 102 finds that there is an overpowering public necessity for, and no 103 reasonable alternative to, providing educational institutions 104 with liability protections against lawsuits seeking tuition or 105 fee reimbursements or related damages resulting from the 106 institutions changing the delivery of educational services, 107 limiting access to facilities, or closing campuses during the 108 COVID-19 public health emergency. 109 (2) For the purposes of this section, the term “educational 110 institution” means a school, including a preschool, elementary 111 school, middle school, junior high school, secondary school, 112 career center, or postsecondary school, whether public or 113 nonpublic. The Board of Governors of the State University System 114 and the State Board of Education are also included within the 115 immunity protections afforded by this section. 116 (3)(a) An educational institution that has taken reasonably 117 necessary actions in compliance with federal, state, or local 118 guidance to diminish the impact or the spread of COVID-19 may 119 not be held liable for, and shall be immune from, any civil 120 damages, equitable relief, or other remedies relating to such 121 actions. Reasonably necessary actions taken while a state of 122 emergency was declared for this state for the COVID-19 pandemic 123 include, but are not limited to, any of the following: 124 1. Shifting in-person instruction to online or remote 125 instruction for any period of time. 126 2. Closing or modifying the provision of facilities, other 127 than housing or dining facilities, on the campus of the 128 educational institution. 129 3. Pausing or modifying ancillary student activities and 130 services available through the educational institution. 131 (b) The provision of in-person or on-campus education and 132 related services is deemed to have been impossible for 133 educational institutions during any period of time in which such 134 institutions took reasonably necessary actions described in 135 paragraph (a) to protect students, staff, and educators in 136 response to the COVID-19 public health emergency. 137 (c) As a result of the various governmental orders and the 138 need for educational institutions to protect their communities, 139 the reasonably necessary actions described in paragraph (a) are 140 deemed justified. 141 (4) In any action against an educational institution, the 142 Board of Governors of the State University System, or the State 143 Board of Education for the reimbursement of tuition or fees, 144 invoices, catalogs, and general publications of an educational 145 institution are not evidence of an express or implied contract 146 to provide in-person or on-campus education and related services 147 or access to facilities during the COVID-19 public health 148 emergency. 149 (5)(a) This section does not apply to losses or damages 150 that resulted solely from a breach of an express contractual 151 provision allocating liability in the event of a pandemic event. 152 (b) This section does not apply to losses or damages caused 153 by an act or omission of a college or university which was in 154 bad faith or malicious. 155 (6) If any aspect of the immunity under subsection (3) is 156 limited by a court or by operation of law from applying to 157 certain types of claims or causes of action, the immunity under 158 this section must still be provided to the fullest extent 159 authorized by law to any other types of claims or causes of 160 action. 161 (7) If an educational institution is required by federal, 162 state, or local order or a directive of the Board of Governors 163 of the State University System or the State Board of Education 164 issued in response to the COVID-19 public health emergency to 165 alter the mode of delivery of instruction and related services 166 or access to facilities, the burden of proof for any plaintiff 167 bringing an action against the educational institution for such 168 change shall be by clear and convincing evidence to prevail for 169 damages against the institution. 170 Section 3. This act shall take effect upon becoming a law.