PRIORITY BILLS
For Legislative Session 2002
Senate Bill SB 0276 - Senator Christ
An act relating to nursing homes and related health care facilities
03/18/2002 S Ordered enrolled -SJ 00850 

 
FSHL LONG TERM CARE PRIORITY BILL SB - 90

 

Nursing Home Facility Whistleblower's Act
HB 171 - Representative Weissman
10/30/2001 H Withdrawn from Elder & Long-Term Care (HCC); Judicial Oversight (SGC); Council for Healthy Communities; Council for Ready Infrastructure; Withdrawn prior to introduction -HJ 00020 
Representative Weissman agrees to suggested changes
In an e-mail to Colonel Don Rehman Representative Weissman agreed to the suggested changes - see below - and promises to incorporate these suggestions.
Quote : "I will incorporate your recommended changes as an amendment when my bill gets heard in committee. End Quote!

We would like to thank both of them for their great efforts to create a good bill proposal!


Colonel Don Rehman, USA, Ret., a specialist in "WHISTLEBLOWING" laws, suggested the following changes in order to avoid later lengthy court battles over certain wordings.

16          occurred after a nursing home facility's or independent
17          contractor's initiation of a personnel action against the 
18          employee which includes documentation of the employee's
19          violation of a disciplinary standard or performance 
20          deficiency. 

***************************************************
In his opinion it is unclear whether the highlighted words will only apply strictly with regard to obtaining any temporary injunction; or whether some Courts will inappropriately apply them also outside the consideration of any temporary injunction, to the basic merits of the Whistleblower's case, and thereby make them inappropriately also a Summary Judgment affirmative employer defense. 

In many workplace situations, the employer (because of employee's actions prior to actual whistleblowing) senses that the employee is going to blow the whistle. Because of the highlighted words in the above draft Bill, all an employer has to do to make this Bill (later law if it is enacted) partially or completely worthless is to document some phony employee violation or phony performance deficiency before the employee can get to blow-the whistle. Thus the Bill makes it a race for, and an encouragement to, the employer to invent a phony adverse personnel action before the whistleblower blows the whistle. 
Other than the "time bomb" language highlighted above, the Bill's intent seems commendable. 

In his opinion the bill's wording could be fixed by inserting the word "valid" as follows :
...........or occurred after a nursing home facility's or independent contractor's initiation of a valid personnel action against the employee which includes documentation of the employee's violation of a disciplinary standard or performance deficiency. 


The word "valid" would force the Trial Court to hold an "evidentiary hearing" to determine if the personnel action was valid or was a pretext. 

 

House Bill hb0171

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

    Florida House of Representatives - 2002                 HB 171

        By Representative Weissman

1                      A bill to be entitled
2        An act relating to long-term care; creating ss.
3        400.0245 and 400.455, F.S.; creating the
4        "Nursing Home Facility Whistleblower's Act" and
5        the "Assisted Living Facility Whistleblower's
6        Act," respectively; prohibiting retaliatory
7        actions from a facility or independent
8        contractor against an employee for disclosure
9         of certain information; providing legislative
10      intent; providing definitions; specifying the
11      nature of information, to whom disclosed, and
12      persons protected; authorizing civil actions
13      for violation; providing forms of relief;
14      providing penalties; providing reward for
15      initial disclosure of certain information;
16      requiring facilities to post notice of
17      protections, rewards, and remedies; providing
18      defenses to certain actions; protecting
19      existing rights of employees; providing an
20      effective date.
21
22      Be It Enacted by the Legislature of the State of Florida:
23
24      Section 1.  Section 400.0245, Florida Statutes, is
25      created to read:
26      400.0245  Adverse action against employee for
27      disclosing information of specified nature prohibited;
28      employee remedy and relief.--
29      (1)  SHORT TITLE.--This section may be cited as the
30      "Nursing Home Facility Whistleblower's Act."

CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 2002                 HB 171
739-115-02

1       (2)  LEGISLATIVE INTENT.--It is the intent of the
2      Legislature to prevent nursing home facilities or independent
3      contractors from taking retaliatory action against an employee
4      who reports to an appropriate person or agency violations of
5      law on the part of a facility or independent contractor that
6      create a substantial and specific danger to a nursing home
7      facility resident's health, safety, or welfare. It is further
8      the intent of the Legislature to prevent nursing home
9      facilities or independent contractors from taking retaliatory
10      action against any person who discloses information to an
11      appropriate agency alleging improper use of or gross waste of
12      governmental funds, or any other abuse or gross neglect of
13      duty on the part of a nursing home facility.
14      (3)  DEFINITIONS.--As used in this section, unless
15      otherwise specified, the following words or terms shall have
16      the meanings indicated:
17      (a)  "Adverse personnel action" means the discharge,
18      suspension, transfer, or demotion of any employee or the
19      withholding of bonuses, the reduction in salary or benefits,
20      or any other adverse action taken against an employee within
21      the terms and conditions of employment by a nursing home
22      facility or independent contractor.
23      (b)  "Agency" means any state, regional, county, local,
24      or municipal government entity, whether executive, judicial,
25      or legislative; or any official, officer, department,
26      division, bureau, commission, authority, or political
27      subdivision thereof.
28      (c)  "Employee" means a person who performs services
29      for, and under the control and direction of, or contracts
30      with, a nursing home facility or independent contractor for
31      wages or other remuneration.
 

CODING: Words stricken are deletions; words underlined are additions.
Florida House of Representatives - 2002      HB 171           739-115-02