HB 5015

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

CODING: Words stricken are deletions; words underlined are additions.