(8) The Department of Business and Professional Regulation may adopt such rules as are necessary to carry out this section. History: ss. 2, 3, ch. 82-163; ss. 29, 79, 82, 83, ch. 83-181; s. 1, ch. 86-253; s. 8, ch. 89-294; s. 61, ch. 92-136; s. 30, ch. 93-177; ss. 28, 49, ch. 93-217; s. 49, ch. 94-218; s. 1054, ch. 95-148; s. 38, ch. 95-228; s. 127, ch. 95-418. [Footnote 1] Note. A. As amended by s. 38, ch. 95-228, and s. 1054, ch. 95-148. This version is published here as the last expression of legislative will (see Journal of the Senate 1995, pp. 1011 and 1181). Section 400.211 was also amended by s. 127, ch. 95-418, and that version (including the amendment by s. 1054, ch. 95-148) reads: 400.211 Persons employed as nursing assistants; certification requirement; background screening. (1) A person must meet the requirements of and be certified pursuant to this section, except a registered nurse or practical nurse licensed in accordance with the provisions of chapter 464 or an applicant for such licensure who is permitted to practice nursing in accordance with rules promulgated by the Board of Nursing pursuant to chapter 464, to serve as a nursing assistant in any nursing home. The agency shall issue a certificate to any person who: (a) Has successfully completed a nursing assistant program in a school approved by the Department of Education and has achieved a minimum score, to be established by the agency by rule, on the competency evaluation which shall consist of a written portion and skills demonstration portion approved by the agency and administered by state-approved test site personnel; (b) Has achieved a minimum score, to be established by the agency by rule, on the competency evaluation which shall consist of a written portion and skills demonstration portion approved by the agency and administered by state-approved test site personnel; or (c) Is currently certified in another state, is on that state's registry, and has no findings of abuse in that state. If another state reports a finding of abuse, neglect, or misappropriation of property against a patient or resident of a nursing facility, [Footnote 3] assisted living facility, hospital, home health agency, or other health care provider, the agency shall deny or revoke the Florida certification of any person to serve as a nursing assistant pursuant to this section. An oral examination shall be administered upon request. (2) The agency shall add the name of every certified nursing assistant, and other information required by federal law, including, but not limited to, information regarding the abuse of a resident in a facility, to the certified nursing assistant registry. This information may be provided to employers for employment screening purposes upon written request. (3) The agency may deny, suspend, or revoke the certification of any person to serve as a nursing assistant in a nursing home, based upon written notification from a court of competent jurisdiction, law enforcement agency, or administrative agency of any finding of guilt, regardless of adjudication, or a plea of nolo contendere or guilty to, or any confirmed report of, any offense provided for in s. 400.512(1) or (2). (4) The agency shall revoke the certification of any nursing assistant who has been found guilty of, regardless of adjudication, or pled nolo contendere or guilty to, abusing, neglecting, or mistreating, or misappropriating the property of, a patient or resident in a nursing facility, [Footnote 3] assisted living facility, hospital, or other health care provider, or who has had a finding entered into the department's central abuse registry and tracking system concerning the abuse, neglect, or mistreatment, or the misappropriation of property, of any such patient or resident. (5) Persons who are enrolled in a state-approved nursing assistant program may be employed by a licensed nursing facility for a period of 4 months. The certification requirement must be met within 4 months of such initial employment as a nursing assistant. (6) A person certified under this section who has not worked for pay as a nursing assistant in a nursing-related occupation for at least 8 hours during a consecutive 24-month period must be recertified under this section to be eligible to work as a certified nursing assistant in a nursing facility. (7) Nursing homes shall require persons seeking employment as a certified nursing assistant to submit an employment history to the facility. The facility shall verify the employment history unless, through diligent efforts, such verification is not possible. The facility may not employ a person as a certified nursing assistant until the facility has verified the current certification of the person through the certified nursing assistant registry, to determine that certification has not been denied or revoked by the agency. If it appears from a review of the prospective employee's application, or verification of employment, that the person seeking employment as a certified nursing assistant has not been employed in a nursing-related capacity for at least 8 hours during a consecutive 24-month period, the facility shall notify the certified nursing assistant registry. There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, a former employer who reasonably and in good faith communicates his or her honest opinion about a former employee's job performance. (8) The agency may perform or provide, contract for, or grant approval for others to perform or provide examination services as provided in this section. An examination provider shall pay to the agency all reasonable costs and expenses incurred by the agency in the evaluation of the provider's application, the examination services, and the provider's performance during the delivery of the examination services. For purposes of this section, examination services shall include development and administration of the examination. (9) Providers approved by the agency to provide examination services shall charge no more than the maximum allowable under the Medicaid program for the competency evaluation. (10) If the requirements pursuant to the Omnibus Budget Reconciliation Act of 1987, as amended, for the certification of nursing assistants are in conflict with this section, the federal requirements shall prevail for those facilities certified to provide care under Title XVIII (Medicare) or Title XIX (Medicaid) of the Social Security Act. (11) If a duplicate certificate is required or requested by a certified nursing assistant, the agency may charge a fee as determined by rule, not to exceed $25, for issuance of the duplicate certificate. (12) The agency shall establish minimum standards for good moral character as provided for in s. 400.512(1) and (2) for certified nursing assistants and persons enrolled in a nursing assistant program approved by the Department of Education, who are employed in a licensed nursing home. (13) Each certified nursing assistant and each person enrolled in a nursing assistant program approved by the Department of Education must be screened through the department's central abuse registry and tracking system prior to beginning employment in a nursing home as a certified nursing assistant or nursing assistant student. Certified nursing assistants, and persons enrolled in a nursing assistant program approved by the Department of Education, who are employed by a nursing home after October 1, 1993, must also be screened through the Department of Law Enforcement prior to beginning employment. The person being screened must submit to the facility a complete set of information necessary to conduct a screening under this section. The person must sign an affidavit stating whether the person meets the minimum standards for good moral character provided in s. 400.512(1) and (2). The nursing home shall submit the information to the department's central abuse registry and tracking system and to the Department of Law Enforcement, for processing. If disposition information is missing on a criminal record, or if information regarding an incident of abuse, neglect, or exploitation is missing, it is the responsibility of the person being screened to obtain and supply within 30 days the missing information. Failure to supply the missing information or to show reasonable efforts to obtain such information will result in automatic disqualification for employment. (a) A nursing home facility shall not hire any certified nursing assistant applicant, or any person enrolled in a nursing assistant program approved by the Department of Education, until it is determined that the applicant meets the minimum standards for good moral character as provided for in s. 400.512(1) and (2) or has obtained an exemption pursuant to [Footnote 4] s. 400.512(3). (b) The administrator of each nursing home must sign an affidavit annually, under penalty of perjury, stating that all certified nursing assistants, and all employees enrolled in a nursing assistant program approved by the Department of Education, have been screened as required by this section. (14) Proof of a person's compliance with the screening requirements of s. 39.076, s. 110.1127, s. 393.0655, s. 397.451, s. 394.457, s. 400.512, s. 402.305, s. 402.313, s. 409.175, or s. 464.008 shall be accepted in lieu of the requirements of this section, provided that such person has been continuously employed in the same type of occupation for which the person is seeking employment without a breach in service that exceeds 180 days and that the proof of compliance is no more than 2 years old and that the person has been screened through both the department's central abuse registry and tracking system and the Department of Law Enforcement. Proof of compliance shall be provided directly from one employer or contractor to another, and no potential employer or contractor shall accept any proof of compliance directly from the person being screened. Proof of compliance with the screening requirements of this section shall be provided upon request to the person being screened by the nursing home. (15) There is no monetary liability on the part of, and no cause of action for damages arises against a nursing home that, upon notice of a disqualifying offense listed under s. 400.512 or a confirmed report of abuse, neglect, or exploitation or an act of domestic violence under [Footnote 5] s. 400.512(2), terminates the employee against whom the report was issued, whether or not the employee has filed for an exemption with the agency under [Footnote 4] s. 400.512(3) and whether or not the time for filing has expired. (16) The costs of processing the statewide criminal records checks and the search of the department's central abuse registry and tracking system must be borne by the nursing home. (17) The agency and the nursing home may not use the criminal records, juvenile records, or central abuse registry and tracking system information of a person for any purpose other than determining whether that person meets minimum standards of good moral character under s. 400.512. (18)(a) It is a misdemeanor of the first degree, punishable under s. 775.082 or s. 775.083, for any person willfully, knowingly, or intentionally to: 1. Fail, by false statement, misrepresentation, impersonation, or other fraudulent means, to disclose in any application for voluntary or paid employment a material fact used in making a determination as to such person's qualifications to be an employee of a nursing home; 2. Use information from the criminal records or central abuse registry and tracking system obtained under [Footnote 6] s. 400.512 for any purpose other than screening that person for employment as specified in s. 400.512 and maintenance of the certified nursing assistant registry pursuant to this section; or to release such information to any other person for any purpose other than screening for employment under s. 400.512 and maintenance of the certified nursing assistant registry pursuant to this section. (b) It is a felony of the third degree, punishable under s. 775.082, s. 775.083, or s. 775.084, for any person willfully, knowingly, or intentionally to use information from the juvenile records of a person obtained under this section for any purpose other than screening for employment under s. 400.512 and maintenance of the certified nursing assistant registry pursuant to this section. (19)(a) The agency may grant to any person an exemption from disqualification from employment under [Footnote 4] s. 400.512(3). (b) The agency shall not grant an exemption to any person who has been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to: abusing, neglecting, or mistreating, or misappropriating the property of, a patient or resident of a nursing facility, hospital, home health agency, nurse registry, or other health care provider, or sitter, companion, or homemaker service registered under s. 400.509; or who has had a finding entered into the department's central abuse registry and tracking system concerning the abuse, neglect, or mistreatment, or the misappropriation of property, of any such resident or patient. (20) The disqualification from employment provided in s. 400.512(1) may not be removed from any person found guilty of, regardless of adjudication, any felony covered by s. 400.512(1) solely by reason of any pardon, executive clemency, or restoration of civil rights. (21) The agency may adopt such rules as are necessary to carry out this section. B. Section 64, ch. 95-228, provides that "except as otherwise provided herein, this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date." [Footnote 2] Note. Repealed by s. 12, ch. 93-214. [Footnote 3] Note. Section 3, ch. 95-209, provides that "the term Adult Congregate Living Facility' shall be changed to Assisted Living Facility.'" [Footnote 4] Note. Section 400.512, as amended by s. 40, ch. 95-228, provides for exemptions in subsection (1). [Footnote 5] Note. Section 400.512(2), as amended by s. 40, ch. 95-228, does not refer to confirmed reports of abuse, neglect, exploitation, or acts of domestic violence. [Footnote 6] Note. Section 400.512, as amended by s. 40, ch. 95-228, does not provide for a central abuse registry and tracking system.