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.
   24  Be It Enacted by the Legislature of the State of Florida:
   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         768.39Immunity 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.