Florida Senate - 2021                        COMMITTEE AMENDMENT
       Bill No. SB 72
                              LEGISLATIVE ACTION                        
                    Senate             .             House              

       The Committee on Rules (Book) recommended the following:
    1         Senate Substitute for Amendment (274920) (with title
    2  amendment)
    4         Delete lines 65 - 174
    5  and insert:
    6  entities, governmental entities, and religious institutions that
    7  contribute to the overall well-being of the state. The threat of
    8  unknown and potentially unbounded liability to such businesses,
    9  entities, and institutions, in the wake of a pandemic that has
   10  already left many of these businesses, entities, and
   11  institutions vulnerable, has created an overpowering public
   12  necessity to provide an immediate and remedial legislative
   13  solution. Therefore, the Legislature intends for certain
   14  business entities, governmental entities, and religious
   15  institutions to enjoy heightened legal protections against
   16  liability as a result of the COVID-19 pandemic. The Legislature
   17  also finds that there are no alternative means to meet this
   18  public necessity, especially in light of the sudden,
   19  unprecedented nature of the COVID-19 pandemic. The Legislature
   20  finds the public interest as a whole is best served by providing
   21  relief to these businesses, entities, and institutions so that
   22  they may remain viable and continue to contribute to the state.
   23         (2)As used in this section, the term:
   24         (a)“Business entity” has the same meaning as provided in
   25  s. 606.03. The term also includes a charitable organization as
   26  defined in s. 496.404 and a corporation not for profit as
   27  defined in s. 617.01401.
   28         (b)“COVID-19-related claim” means a civil liability claim
   29  against a person, including a natural person, a business entity,
   30  a governmental entity, or a religious institution which arises
   31  from or is related to COVID-19, otherwise known as the novel
   32  coronavirus. The term includes any such claim for damages,
   33  injury, or death. Any such claim, no matter how denominated, is
   34  a COVID-19-related claim for purposes of this section. The term
   35  does not include a claim against an educational institution or a
   36  healthcare provider, regardless of whether the healthcare
   37  provider meets one or more of the definitions in this
   38  subsection.
   39         (c)“Educational institution” means a school, including a
   40  preschool, elementary school, middle school, junior high school,
   41  secondary school, career center, or postsecondary school,
   42  whether public or nonpublic.
   43         (d)“Governmental entity” means the state or any political
   44  subdivision thereof, including the executive, legislative, and
   45  judicial branches of government; the independent establishments
   46  of the state, counties, municipalities, districts, authorities,
   47  boards, or commissions; or any agencies that are subject to
   48  chapter 286.
   49         (e)“Healthcare provider” means:
   50         1.A provider as defined in s. 408.803.
   51         2.A clinical laboratory providing services in the state or
   52  services to health care providers in the state, if the clinical
   53  laboratory is certified by the Centers for Medicare and Medicaid
   54  Services under the federal Clinical Laboratory Improvement
   55  Amendments and the federal rules adopted thereunder.
   56         3.A federally qualified health center as defined in 42
   57  U.S.C. s. 1396d(l)(2)(B), as that definition exists on the
   58  effective date of this act.
   59         4.Any site providing health care services which was
   60  established for the purpose of responding to the COVID-19
   61  pandemic pursuant to any federal or state order, declaration, or
   62  waiver.
   63         5.A health care practitioner as defined in s. 456.001.
   64         6.A health care professional licensed under part IV of
   65  chapter 468.
   66         7.A home health aide as defined in s. 400.462(15).
   67         (f)“Religious institution” has the same meaning as
   68  provided in s. 496.404.
   69         (3)In a civil action based on a COVID-19-related claim:
   70         (a)The complaint must be pled with particularity.
   71         (b)At the same time the complaint is filed, the plaintiff
   72  must submit an affidavit signed by a physician actively licensed
   73  in the state which attests to the physician’s belief, within a
   74  reasonable degree of medical certainty, that the plaintiff’s
   75  COVID-19-related damages, injury, or death occurred as a result
   76  of the defendant’s acts or omissions.
   77         (c)The court must determine, as a matter of law, whether:
   78         1.The plaintiff complied with paragraphs (a) and (b). If
   79  the plaintiff did not comply with paragraphs (a) and (b), the
   80  court must dismiss the action without prejudice.
   81         2.The defendant made a good faith effort to substantially
   82  comply with authoritative or controlling government-issued
   83  health standards or guidance at the time the cause of action
   84  accrued.
   85         a.During this stage of the proceeding, admissible evidence
   86  is limited to evidence tending to demonstrate whether the
   87  defendant made such a good faith effort.
   88         b.If the court determines that the defendant made such a
   89  good faith effort, the defendant is immune from civil liability.
   90         c.If the court determines that the defendant did not make
   91  such a good faith effort, the plaintiff may proceed with the
   92  action. However, absent at least gross negligence proven by
   93  clear and convincing evidence, the defendant is not liable for
   94  any act or omission relating to a COVID-19-related claim.
   95         (d)The burden of proof is upon the plaintiff to
   96  demonstrate that the defendant did not make a good faith effort
   97  under subparagraph (c)2.
   98         (4)A civil action for a COVID-19-related claim must be
   99  commenced within 1 year after the cause of action accrues.
  100  However, a plaintiff whose cause of action for a COVID-19
  101  related claim accrued before the effective date of this act must
  102  commence such action within 1 year of the effective date of this
  103  act.
  104         (5)This section shall apply retroactively. However, this
  105  section shall not apply in a civil action against a particularly
  106  named defendant which is commenced before the effective date of
  107  this act.
  108         Section 2. Section 768.39, Florida Statutes, is created to
  109  read:
  110         768.39Immunity for educational institutions for actions
  111  related to the COVID-19 pandemic.—
  112         (1)For the purposes of this section, the term “educational
  113  institution” has the same meaning as in s. 768.38(2).
  114         (2)Any educational institution that has taken reasonably
  115  necessary actions in compliance with federal, state, or local
  116  guidance to diminish the impact or the spread of COVID-19 may
  117  not be held liable for, and shall be immune from, any civil
  118  damages, equitable relief, or other remedies relating to such
  119  actions. Reasonably necessary actions include, but are not
  120  limited to, any of the following:
  121         (a)Shifting in-person instruction to online or remote
  122  instruction for any period of time while a state of emergency
  123  was declared for this state for the COVID-19 pandemic;
  124         (b)Closing or modifying the provision of residential
  125  housing, dining, or other facilities on the campus of the
  126  educational institution; or
  127         (c)Pausing or modifying ancillary student activities and
  128  services available through the educational institution while a
  129  state of emergency was declared for this state for the COVID-19
  130  pandemic.
  131         (3)The provision of in-person or on-campus education and
  132  related services is deemed to have been impossible for
  133  educational institutions to provide for any period of time in
  134  which such institutions took reasonably necessary actions
  135  described in subsection (2) to protect students, staff, and
  136  educators in response to the COVID-19 pandemic. As a result of
  137  the various governmental orders and the need of educational
  138  institutions to protect their communities, the reasonably
  139  necessary actions described in subsection (2) are deemed to have
  140  been justified.
  141         (4)If any aspect of the immunity under subsection (2) is
  142  limited by a court or by operation of law from applying to
  143  certain types of claims or causes of action, the immunity under
  144  this section must still be provided to the fullest extent
  145  authorized by law to any other types of claims or causes of
  146  action.
  147         (5)This section shall apply retroactively to causes of
  148  actions accruing on or before March 9, 2020.
  149         Section 3. If any provision of this act or its application
  150  to any person or circumstance is held invalid, the invalidity
  151  does not affect other provisions or applications of the act
  152  which can be given effect without the invalid provision or
  153  application, and to this end the provisions of this act are
  154  severable.
  155         Section 4. This act shall take effect upon becoming a law.
  157  ================= T I T L E  A M E N D M E N T ================
  158  And the title is amended as follows:
  159         Delete lines 8 - 9
  160  and insert:
  161         providing a statute of limitations; providing
  162         retroactive applicability; creating s. 768.39, F.S.;
  163         defining the term “educational institution”; providing
  164         that educational institutions that have taken certain
  165         actions may not be held liable for and are immune from
  166         civil damages, equitable relief, or other remedies;
  167         specifying that the provision of in-person or on
  168         campus education and related services is deemed
  169         impossible during a specified timeframe; specifying
  170         that certain actions are deemed to have been
  171         justified; providing construction; providing
  172         retroactive applicability; providing severability;