Bill No. CS/CS/HB 661
Amendment No. 565651
Senate House

1Representative Jones offered the following:
3     Amendment (with title amendment)
4     Between lines 197 and 198, insert:
5     Section 3.  Section 400.0245, Florida Statutes, is created
6to read:
7     400.0245  Adverse action against employee for disclosing
8information of specified nature prohibited; employee remedy and
10     (1)  SHORT TITLE.-This section may be cited as the "Nursing
11Home Facility Whistleblower's Act."
12     (2)  LEGISLATIVE INTENT.-It is the intent of the
13Legislature to prevent nursing home facilities or independent
14contractors from taking retaliatory action against an employee
15who reports to an appropriate person or agency violations of law
16on the part of a facility or independent contractor that create
17a substantial and specific danger to a nursing home facility
18resident's health, safety, or welfare. It is further the intent
19of the Legislature to prevent nursing home facilities or
20independent contractors from taking retaliatory action against
21any person who discloses information to an appropriate agency
22alleging improper use of or gross waste of governmental funds,
23or any other abuse or gross neglect of duty on the part of a
24nursing home facility.
25     (3)  DEFINITIONS.-As used in this section, the term:
26     (a)  "Adverse personnel action" means the discharge,
27suspension, transfer, or demotion of any employee or the
28withholding of bonuses, the reduction in salary or benefits, or
29any other adverse action taken against an employee within the
30terms and conditions of employment by a nursing home facility or
31independent contractor.
32     (b)  "Agency" means any state, regional, county, local, or
33municipal government entity, whether executive, judicial, or
34legislative, or any official, officer, department, division,
35bureau, commission, authority, or political subdivision thereof.
36     (c)  "Employee" means a person who performs services for,
37and under the control and direction of, or contracts with, a
38nursing home facility or independent contractor for wages or
39other remuneration.
40     (d)  "Gross mismanagement" means a continuous pattern of
41managerial abuses, wrongful or arbitrary and capricious actions,
42or fraudulent or criminal conduct which may have a substantial
43adverse economic impact.
44     (e)  "Independent contractor" means a person who is engaged
45in any business and enters into a contract with a nursing home
48     (a)  A nursing home facility or an independent contractor
49shall not dismiss, discipline, or take any other adverse
50personnel action against an employee for disclosing information
51pursuant to the provisions of this section.
52     (b)  A nursing home facility or an independent contractor
53shall not take any adverse action that affects the rights or
54interests of a person in retaliation for the person's disclosure
55of information under this section.
56     (c)  The provisions of this subsection shall not be
57applicable when an employee or person discloses information
58known by the employee or person to be false.
59     (5)  NATURE OF INFORMATION DISCLOSED.-The information
60disclosed under this section must include:
61     (a)  Any violation or suspected violation of any federal,
62state, or local law, rule, or regulation committed by an
63employee or agent of a nursing home facility or independent
64contractor which creates and presents a substantial and specific
65danger to the nursing home facility resident's health, safety,
66or welfare.
67     (b)  Any act or suspected act of gross mismanagement,
68malfeasance, misfeasance, gross waste of public funds, or gross
69neglect of duty committed by an employee or agent of a nursing
70home facility or independent contractor.
71     (6)  TO WHOM INFORMATION DISCLOSED.-The information
72disclosed under this section must be disclosed to any agency or
73Federal Government entity or person designated in s.
74400.022(1)(c) having the authority to investigate, police,
75manage, or otherwise remedy the violation or act.
76     (7)  EMPLOYEES AND PERSONS PROTECTED.-This section protects
77employees and persons who disclose information on their own
78initiative in a written and signed complaint; who are requested
79to participate in an investigation, hearing, or other inquiry
80conducted by any agency or Federal Government entity; who refuse
81to participate in any adverse action prohibited by this section;
82or who initiate a complaint through any appropriate complaint
83hotline. No remedy or other protection under this section
84applies to any person who has committed or intentionally
85participated in committing the violation or suspected violation
86for which protection under this section is being sought.
87     (8)  REMEDIES.-Any person protected by this section may
88bring a civil action in any court of competent jurisdiction
89against a nursing home facility for any action prohibited by
90this section.
91     (9)  RELIEF.-In any action brought under this section, the
92relief may include the following:
93     (a)  Reinstatement of the employee to the same position
94held before the adverse action was commenced or to an equivalent
95position, or reasonable front pay as alternative relief.
96     (b)  Reinstatement of the employee's full fringe benefits
97and seniority rights, as appropriate.
98     (c)  Compensation, if appropriate, for lost wages, lost
99benefits, or other lost remuneration caused by the adverse
101     (d)  Payment of reasonable costs, including attorney's
102fees, to a substantially prevailing employee, or to the
103prevailing employer if the employee filed a frivolous action in
104bad faith.
105     (e)  Issuance of an injunction, if appropriate, by a court
106of competent jurisdiction.
107     (f)  Temporary reinstatement to the employee's former
108position or to an equivalent position, pending the final outcome
109on the complaint, if an employee complains of being discharged
110in retaliation for a protected disclosure and if a court of
111competent jurisdiction determines that the disclosure was not
112made in bad faith or for a wrongful purpose or occurred after a
113nursing home facility's or independent contractor's initiation
114of a personnel action against the employee that includes
115documentation of the employee's violation of a disciplinary
116standard or performance deficiency.
117     (10)  PENALTIES.-
118     (a)  A nursing home facility determined by the agency to
119have committed an action prohibited under subsection (4) is
120subject to the penalties set forth in s. 400.23(8)(a).
121     (b)  In addition, a violation of subsection (4) constitutes
122a felony of the third degree, punishable as provided in s.
123775.082 or s. 775.083.
124     (11)  REWARD.-Any person protected by this section who
125discloses information as provided in paragraph (5)(b) related to
126gross waste of public funds shall be awarded $10,000, which sum
127shall be paid from the Resident Protection Trust Fund.
128     (12)  POSTING OF NOTICE.-Each facility licensed under this
129part shall prominently post notice of the protections, rewards,
130and remedies provided under this section, along with the
131telephone numbers for making reports, and shall provide such
132notice to all employees of the facility within 30 days after the
133effective date of this section and to all new employees hired
134subsequent to that date.
135     (13)  DEFENSES.-It shall be an affirmative defense to any
136action brought pursuant to this section that the adverse action
137was predicated upon grounds other than, and would have been
138taken absent, the employee's or person's exercise of rights
139protected by this section.
140     (14)  EXISTING RIGHTS.-This section does not diminish the
141rights, privileges, or remedies of an employee under any other
142law or rule or under any collective bargaining agreement or
143employment contract.
T I T L E  A M E N D M E N T
149     Remove line 16 and insert:
150certain entities; providing applicability; creating s.
151400.0245, F.S.; creating the "Nursing Home Facility
152Whistleblower's Act"; prohibiting retaliatory actions from
153nursing home facilities and independent contractors
154against an employee for disclosing certain information;
155providing legislative intent; providing definitions;
156specifying prohibited actions for nursing home facilities
157and independent contractors; specifying the nature of
158information disclosed, to whom such information is
159disclosed, and employees and persons who are protected
160after disclosing certain information; authorizing civil
161actions for violations; providing for relief and civil and
162criminal penalties; providing a reward for information
163disclosed; requiring facilities to post notice of
164protections, rewards, and remedies; providing defenses to
165certain actions; protecting existing rights of employees;
166providing for

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