Florida Senate - 2018                                    SB 1114
       
       
        
       By Senator Brandes
       
       
       
       
       
       24-01276A-18                                          20181114__
    1                        A bill to be entitled                      
    2         An act relating to professional regulation; amending
    3         s. 120.565, F.S.; authorizing a person to seek a
    4         declaratory statement from an agency as to the effect
    5         of the person’s criminal background on his or her
    6         eligibility for certain licenses, registrations, or
    7         certificates; specifying that a person may seek a
    8         declaratory statement before meeting any prerequisites
    9         for the license, registration, or certification;
   10         requiring that an agency’s conclusion in the
   11         declaratory statement contain certain statements;
   12         providing that the agency’s conclusion is binding
   13         except under certain circumstances; requiring a person
   14         seeking a declaratory statement to submit certain
   15         items to the agency and pay certain fees and costs;
   16         providing requirements for the processing of the
   17         fingerprints; requiring the petitioner to pay the
   18         actual cost of processing the fingerprints; amending
   19         s. 455.213, F.S.; conforming a cross-reference;
   20         requiring the board to use a specified process for the
   21         review of an applicant’s criminal record to determine
   22         the applicant’s eligibility for certain licenses;
   23         prohibiting the conviction of a crime before a
   24         specified date from being grounds for the denial of
   25         certain licenses; defining the term “conviction”;
   26         authorizing a person to apply for a license before his
   27         or her lawful release from confinement or supervision;
   28         prohibiting additional fees for an applicant confined
   29         or under supervision; prohibiting the board from
   30         basing a denial of a license application solely on the
   31         applicant’s current confinement or supervision;
   32         authorizing the board to stay the issuance of an
   33         approved license under certain circumstances;
   34         requiring the board to verify an applicant’s release
   35         with the Department of Corrections; providing
   36         requirements for the appearance of certain applicants
   37         at certain meetings; requiring the board to adopt
   38         rules specifying how certain crimes affect an
   39         applicant’s eligibility for licensure; amending s.
   40         464.203, F.S.; prohibiting the conviction of a crime
   41         before a specified date from being grounds for the
   42         denial of a certification under certain circumstances;
   43         prohibiting the conviction of a crime before a
   44         specified date from being grounds for the failure of a
   45         background screening; defining the term “conviction”;
   46         authorizing a person to apply for certification before
   47         his or her lawful release from confinement or
   48         supervision; prohibiting additional fees for an
   49         applicant confined or under supervision; prohibiting
   50         the board from basing the denial of a certification
   51         solely on the applicant’s current confinement or
   52         supervision; authorizing the board to stay the
   53         issuance of an approved certificate under certain
   54         circumstances; requiring the board to verify an
   55         applicant’s release with the Department of
   56         Corrections; providing requirements for the appearance
   57         of certain applicants at certain meetings; requiring
   58         the board to adopt rules specifying how certain crimes
   59         may affect an applicant’s eligibility for
   60         certification; amending s. 400.211, F.S.; conforming a
   61         cross-reference; providing an effective date.
   62          
   63  Be It Enacted by the Legislature of the State of Florida:
   64  
   65         Section 1. Subsection (4) is added to section 120.565,
   66  Florida Statutes, to read:
   67         120.565 Declaratory statement by agencies.—
   68         (4)(a) Any person may seek a declaratory statement
   69  regarding an agency’s opinion as to the effect of the
   70  petitioner’s criminal background on his or her eligibility for a
   71  specific occupational or professional license, registration, or
   72  certificate issued by the agency based on the applicable
   73  statutes and rules for the occupation or profession. The
   74  petition may include mitigating factors or other information the
   75  petitioner believes relevant to establish the petitioner’s
   76  eligibility, including, but not limited to, the time elapsed
   77  since completion of or lawful release from confinement,
   78  supervision, or nonmonetary condition imposed by the court for a
   79  disqualifying offense, and the petitioner’s standing in his or
   80  her community. A person may seek a declaratory statement under
   81  this subsection before attaining any education, training,
   82  experience, or other prerequisites for the license,
   83  registration, or certification.
   84         (b) The agency’s conclusion in the declaratory statement
   85  must indicate whether:
   86         1. The petitioner is disqualified from obtaining the
   87  license, registration, or certification due to the petitioner’s
   88  criminal background, regardless of the petitioner’s education,
   89  training, experience, or other prerequisites required for the
   90  license, registration, or certification.
   91         2. The petitioner is not eligible for a specified
   92  occupational or professional license, registration, or
   93  certification because of his or her criminal background, but
   94  that the conclusion may be reversed upon the petitioner’s
   95  presentation of evidence of rehabilitation or mitigation
   96  identified by the agency in the declaratory statement at any
   97  time subsequent to the issuance of the declaratory statement.
   98         3. Federal laws or regulations may impede the petitioner’s
   99  licensure, registration, or certification in the profession or
  100  occupation.
  101         4. Conditions or restrictions imposed by the court on the
  102  petitioner for a disqualifying offense may impede the
  103  petitioner’s licensure, registration, or certification in the
  104  profession or occupation.
  105         (c) The agency’s conclusion in the declaratory statement
  106  shall be binding on the agency as to the petitioner, unless the
  107  petitioner’s subsequent criminal history constitutes an
  108  independent basis for denial of the petitioner’s application for
  109  a license, registration, or certification in the profession or
  110  occupation. The agency’s conclusion is subject to judicial
  111  review pursuant to s. 120.68.
  112         (d) A person seeking a declaratory statement under this
  113  subsection must submit to the agency, in addition to the
  114  petition for a declaratory statement:
  115         1. A fee set by the agency not to exceed $100;
  116         2. A certified copy of each criminal judgment rendered
  117  against the petitioner; and
  118         3. A complete set of electronic fingerprints.
  119         (e) The agency shall submit the fingerprints to the
  120  Department of Law Enforcement for a state criminal history
  121  record check and the Department of Law Enforcement shall forward
  122  them to the Federal Bureau of Investigation for a national
  123  criminal history record check. The agency shall review the
  124  criminal history record results to determine if the petitioner
  125  meets licensure, registration, or certification requirements.
  126  The petitioner shall pay the actual cost of state and federal
  127  processing in addition to the fee in subparagraph (d)1.
  128         Section 2. Present subsections (3) through (12) of section
  129  455.213, Florida Statutes, are redesignated as subsections (4)
  130  through (13), respectively, subsection (2) of that section is
  131  amended, and a new subsection (3) is added to that section, to
  132  read:
  133         455.213 General licensing provisions.—
  134         (2) Before the issuance of any license, the department may
  135  charge an initial license fee as determined by rule of the
  136  applicable board or, if no such board exists, by rule of the
  137  department. Upon receipt of the appropriate license fee, except
  138  as provided in subsection (4) (3), the department shall issue a
  139  license to any person certified by the appropriate board, or its
  140  designee, or the department when there is no board, as having
  141  met the applicable requirements imposed by law or rule. However,
  142  an applicant who is not otherwise qualified for licensure is not
  143  entitled to licensure solely based on a passing score on a
  144  required examination. Upon a determination by the department
  145  that it erroneously issued a license, or upon the revocation of
  146  a license by the applicable board, or by the department when
  147  there is no board, the licensee must surrender his or her
  148  license to the department.
  149         (3)(a) Notwithstanding any other provision of law, the
  150  board shall use the process in this subsection for review of an
  151  applicant’s criminal record to determine his or her eligibility
  152  for licensure as a:
  153         1. Barber under chapter 476;
  154         2. Cosmetologist or cosmetology specialist under chapter
  155  477; or
  156         3. Any of the following construction professions under
  157  chapter 489:
  158         a. Air-conditioning contractor;
  159         b.Electrical contractor;
  160         c. Mechanical contractor;
  161         d. Plumbing contractor;
  162         e. Pollutant storage systems contractor;
  163         f. Roofing contractor;
  164         g. Septic tank contractor;
  165         h. Sheet metal contractor;
  166         i. Solar contractor;
  167         j. Swimming pool and spa contractor;
  168         k. Underground utility and excavation contractor; and
  169         l. Other specialty contractors.
  170         (b) A conviction for a crime more than 5 years before the
  171  date of the application may not be grounds for denial of a
  172  license specified in paragraph (a). For purposes of this
  173  paragraph, the term “conviction” means a determination of guilt
  174  that is the result of a plea or trial, regardless of whether
  175  adjudication is withheld.
  176         (c)1. A person may apply for a license before his or her
  177  lawful release from confinement or supervision. The department
  178  may not charge an applicant an additional fee for being confined
  179  or under supervision. The board may not deny an application for
  180  a license solely on the basis of the applicant’s current
  181  confinement or supervision.
  182         2. After a license application is approved, the board may
  183  stay the issuance of a license until the applicant is lawfully
  184  released from confinement or supervision and the applicant
  185  notifies the board of such release. The board must verify the
  186  applicant’s release with the Department of Corrections before it
  187  issues a license.
  188         3. If an applicant is unable to appear in person due to his
  189  or her confinement or supervision, the board must permit the
  190  applicant to appear by teleconference or video conference, as
  191  appropriate, at any meeting of the board or other hearing by the
  192  agency concerning his or her application.
  193         4. If an applicant is confined or under supervision, the
  194  Department of Corrections and the board shall cooperate and
  195  coordinate to facilitate the appearance of the applicant at a
  196  board meeting or agency hearing in person, by teleconference, or
  197  by video conference, as appropriate.
  198         (d) The board shall adopt rules specifying the crimes that,
  199  if committed, and regardless of adjudication, do not relate to
  200  the practice of the profession or the ability to practice the
  201  profession and do not constitute grounds for denial of a
  202  license.
  203         (e) The board shall adopt rules specifying the crimes that,
  204  if committed, and regardless of adjudication, relate to the
  205  practice of the profession or the ability to practice the
  206  profession and may constitute grounds for denial of a license.
  207         Section 3. Present subsections (2) through (8) of section
  208  464.203, Florida Statutes, are redesignated as subsections (3)
  209  through (9), respectively, and a new subsection (2) is added to
  210  that section, to read:
  211         464.203 Certified nursing assistants; certification
  212  requirement.—
  213         (2)(a)1. Except as provided in s. 435.07(4), a conviction
  214  for a crime more than 7 years before the date of the application
  215  may not be grounds for denial of a certificate to practice as a
  216  certified nursing assistant.
  217         2. Except as provided in s. 435.07(4), a conviction for a
  218  crime more than 7 years before the date of the application may
  219  not be grounds for failure of a required background screening.
  220         3. For purposes of this paragraph, the term “conviction”
  221  means a determination of guilt that is the result of a plea or
  222  trial, regardless of whether adjudication is withheld.
  223         (b)1. A person may apply for a certificate to practice as a
  224  certified nursing assistant before his or her lawful release
  225  from confinement or supervision. The department may not charge
  226  an applicant an additional fee for being confined or under
  227  supervision. The board may not deny an application for a
  228  certificate solely on the basis of the person’s current
  229  confinement or supervision.
  230         2.After a certification application is approved, the board
  231  may stay the issuance of a certificate until the applicant
  232  notifies the board of his or her lawful release from confinement
  233  or supervision. The board must verify the applicant’s release
  234  with the Department of Corrections before it issues a license.
  235         3. If an applicant is unable to appear in person due to his
  236  or her confinement or supervision, the board must permit the
  237  applicant to appear by teleconference or video conference, as
  238  appropriate, at any meeting of the board or other hearing by the
  239  agency concerning his or her application.
  240         4. If an applicant is confined or under supervision, the
  241  Department of Corrections and the board shall cooperate and
  242  coordinate to facilitate the appearance of the applicant at a
  243  board meeting or agency hearing in person, by teleconference, or
  244  by video conference, as appropriate.
  245         (d) The board shall adopt rules specifying the crimes that,
  246  if committed, and regardless of adjudication, do not relate to
  247  the practice of the profession or the ability to practice the
  248  profession and do not constitute grounds for denial of a
  249  certification.
  250         (e) The board shall adopt rules specifying the crimes that,
  251  if committed, and regardless of adjudication, relate to the
  252  practice of the profession or the ability to practice the
  253  profession and may constitute grounds for denial of a
  254  certification.
  255         Section 4. Subsection (4) of section 400.211, Florida
  256  Statutes, is amended to read:
  257         400.211 Persons employed as nursing assistants;
  258  certification requirement.—
  259         (4) When employed by a nursing home facility for a 12-month
  260  period or longer, a nursing assistant, to maintain
  261  certification, shall submit to a performance review every 12
  262  months and must receive regular inservice education based on the
  263  outcome of such reviews. The inservice training must meet all of
  264  the following requirements:
  265         (a) Be sufficient to ensure the continuing competence of
  266  nursing assistants and must meet the standard specified in s.
  267  464.203(8). s. 464.203(7);
  268         (b) Include, at a minimum:
  269         1. Techniques for assisting with eating and proper feeding;
  270         2. Principles of adequate nutrition and hydration;
  271         3. Techniques for assisting and responding to the
  272  cognitively impaired resident or the resident with difficult
  273  behaviors;
  274         4. Techniques for caring for the resident at the end-of
  275  life; and
  276         5. Recognizing changes that place a resident at risk for
  277  pressure ulcers and falls.; and
  278         (c) Address areas of weakness as determined in nursing
  279  assistant performance reviews and may address the special needs
  280  of residents as determined by the nursing home facility staff.
  281  
  282  Costs associated with this training may not be reimbursed from
  283  additional Medicaid funding through interim rate adjustments.
  284         Section 5. This act shall take effect July 1, 2018.