Bill Text: FL H0091 | 2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Adult Protective Services [SPSC]

Spectrum: Partisan Bill (Republican 15-0)

Status: (Passed) 2010-05-07 - Approved by Governor; Chapter No. 2010-31; companion bill(s) passed, see CS/SB 962 (Ch. 2010-207) [H0091 Detail]

Download: Florida-2010-H0091-Introduced.html

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HB 91

1	A bill to be entitled
2	An act relating to adult protective services; amending s.
3	415.101, F.S.; revising legislative intent with respect to
4	adult protective services; providing for care and
5	protection of all vulnerable adults; amending s. 415.102,
6	F.S.; defining the term "activities of daily living";
7	revising the definition of the term "vulnerable adult";
8	conforming a cross-reference; amending s. 415.103, F.S.;
9	providing for certain suspected abuse cases to be
10	transferred to the local county sheriff's office; amending
11	s. 415.1051, F.S.; providing for the Department of
12	Children and Family Services to file a petition to
13	determine incapacity and guardianship under certain
14	circumstances; amending s. 322.142, F.S.; authorizing the
15	Department of Highway Safety and Motor Vehicles to provide
16	copies of drivers' license files to the Department of
17	Children and Family Services to conduct protective
18	investigations; amending ss. 943.0585 and 943.059, F.S.;
19	conforming cross-references; providing an effective date.
20
21	Be It Enacted by the Legislature of the State of Florida:
22
23	Section 1. Subsection (2) of section 415.101, Florida
24	Statutes, is amended to read:
25	415.101 Adult Protective Services Act; legislative
26	intent.--
27	(2) The Legislature recognizes that there are many persons
28	in this state who, because of age or disability, are in need of
29	protective services. Such services should allow such an
30	individual the same rights as other citizens and, at the same
31	time, protect the individual from abuse, neglect, and
32	exploitation. It is the intent of the Legislature to provide for
33	the detection and correction of abuse, neglect, and exploitation
34	through social services and criminal investigations and to
35	establish a program of protective services for all vulnerable
36	disabled adults or elderly persons in need of them. It is
37	intended that the mandatory reporting of such cases will cause
38	the protective services of the state to be brought to bear in an
39	effort to prevent further abuse, neglect, and exploitation of
40	vulnerable disabled adults or elderly persons. In taking this
41	action, the Legislature intends to place the fewest possible
42	restrictions on personal liberty and the exercise of
43	constitutional rights, consistent with due process and
44	protection from abuse, neglect, and exploitation. Further, the
45	Legislature intends to encourage the constructive involvement of
46	families in the care and protection of vulnerable disabled
47	adults or elderly persons.
48	Section 2. Subsections (2) through (27) of section
49	415.102, Florida Statutes, are renumbered as subsections (3)
50	through (28), respectively, current subsections (4) and (26) are
51	amended, and a new subsection (2) is added to that section, to
52	read:
53	415.102 Definitions of terms used in ss. 415.101-
54	415.113.--As used in ss. 415.101-415.113, the term:
55	(2) "Activities of daily living" means functions and tasks
56	for self-care, including eating, bathing, grooming, dressing,
57	ambulating, and other similar tasks.
58	(5)(4) "Caregiver" means a person who has been entrusted
59	with or has assumed the responsibility for frequent and regular
60	care of or services to a vulnerable adult on a temporary or
61	permanent basis and who has a commitment, agreement, or
62	understanding with that person or that person's guardian that a
63	caregiver role exists. "Caregiver" includes, but is not limited
64	to, relatives, household members, guardians, neighbors, and
65	employees and volunteers of facilities as defined in subsection
66	(9) (8). For the purpose of departmental investigative
67	jurisdiction, the term "caregiver" does not include law
68	enforcement officers or employees of municipal or county
69	detention facilities or the Department of Corrections while
70	acting in an official capacity.
71	(27)(26) "Vulnerable adult" means a person 18 years of age
72	or older whose ability to perform the normal activities of daily
73	living or to provide for his or her own care or protection is
74	impaired due to a mental, emotional, sensory, long-term
75	physical, or developmental disability or dysfunction
76	dysfunctioning, or brain damage, or the infirmities of aging.
77	Section 3. Subsection (2) of section 415.103, Florida
78	Statutes, is amended to read:
79	415.103 Central abuse hotline.--
80	(2) Upon receiving an oral or written report of known or
81	suspected abuse, neglect, or exploitation of a vulnerable adult,
82	the central abuse hotline must determine if the report requires
83	an immediate onsite protective investigation. For reports
84	requiring an immediate onsite protective investigation, the
85	central abuse hotline must immediately notify the department's
86	designated protective investigative district staff responsible
87	for protective investigations to ensure prompt initiation of an
88	onsite investigation. For reports not requiring an immediate
89	onsite protective investigation, the central abuse hotline must
90	notify the department's designated protective investigative
91	district staff responsible for protective investigations in
92	sufficient time to allow for an investigation to be commenced
93	within 24 hours. At the time of notification of district staff
94	with respect to the report, the central abuse hotline must also
95	provide any known information on any previous report concerning
96	a subject of the present report or any pertinent information
97	relative to the present report or any noted earlier reports. If
98	the report is of known or suspected abuse of a vulnerable adult
99	by someone other than a relative, caregiver, or household
100	member, the report shall be immediately transferred to the
101	appropriate county sheriff's office.
102	Section 4. Paragraph (e) of subsection (1) and paragraph
103	(g) of subsection (2) of section 415.1051, Florida Statutes, are
104	amended to read:
105	415.1051 Protective services interventions when capacity
106	to consent is lacking; nonemergencies; emergencies; orders;
107	limitations.--
108	(1) NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.--If
109	the department has reasonable cause to believe that a vulnerable
110	adult or a vulnerable adult in need of services is being abused,
111	neglected, or exploited and is in need of protective services
112	but lacks the capacity to consent to protective services, the
113	department shall petition the court for an order authorizing the
114	provision of protective services.
115	(e) Continued protective services.--
116	1. No more than 60 days after the date of the order
117	authorizing the provision of protective services, the department
118	shall petition the court to determine whether:
119	a. Protective services will be continued with the consent
120	of the vulnerable adult pursuant to this subsection;
121	b. Protective services will be continued for the
122	vulnerable adult who lacks capacity;
123	c. Protective services will be discontinued; or
124	d. A petition for guardianship should be filed pursuant to
125	chapter 744.
126	2. If the court determines that a petition for
127	guardianship should be filed pursuant to chapter 744, the court,
128	for good cause shown, may order continued protective services
129	until it makes a determination regarding capacity.
130	3. If the department has a good faith belief that the
131	vulnerable adult lacks the capacity to consent to protective
132	services, the petition to determine incapacity under s. 744.3201
133	may be filed by the department. Once the petition is filed, the
134	department may not be appointed guardian and may not provide
135	legal counsel for the guardian.
136	(2) EMERGENCY PROTECTIVE SERVICES INTERVENTION.--If the
137	department has reasonable cause to believe that a vulnerable
138	adult is suffering from abuse or neglect that presents a risk of
139	death or serious physical injury to the vulnerable adult and
140	that the vulnerable adult lacks the capacity to consent to
141	emergency protective services, the department may take action
142	under this subsection. If the vulnerable adult has the capacity
143	to consent and refuses consent to emergency protective services,
144	emergency protective services may not be provided.
145	(g) Continued emergency protective services.--
146	1. Not more than 60 days after the date of the order
147	authorizing the provision of emergency protective services, the
148	department shall petition the court to determine whether:
149	a. Emergency protective services will be continued with
150	the consent of the vulnerable adult;
151	b. Emergency protective services will be continued for the
152	vulnerable adult who lacks capacity;
153	c. Emergency protective services will be discontinued; or
154	d. A petition should be filed under chapter 744.
155	2. If it is decided to file a petition under chapter 744,
156	for good cause shown, the court may order continued emergency
157	protective services until a determination is made by the court.
158	3. If the department has a good faith belief that the
159	vulnerable adult lacks the capacity to consent to protective
160	services, the petition to determine incapacity under s. 744.3201
161	may be filed by the department. Once the petition is filed, the
162	department may not be appointed guardian and may not provide
163	legal counsel for the guardian.
164	Section 5. Subsection (4) of section 322.142, Florida
165	Statutes, is amended to read:
166	322.142 Color photographic or digital imaged licenses.--
167	(4) The department may maintain a film negative or print
168	file. The department shall maintain a record of the digital
169	image and signature of the licensees, together with other data
170	required by the department for identification and retrieval.
171	Reproductions from the file or digital record are exempt from
172	the provisions of s. 119.07(1) and shall be made and issued only
173	for departmental administrative purposes; for the issuance of
174	duplicate licenses; in response to law enforcement agency
175	requests; to the Department of State pursuant to an interagency
176	agreement to facilitate determinations of eligibility of voter
177	registration applicants and registered voters in accordance with
178	ss. 98.045 and 98.075; to the Department of Revenue pursuant to
179	an interagency agreement for use in establishing paternity and
180	establishing, modifying, or enforcing support obligations in
181	Title IV-D cases; to the Department of Children and Family
182	Services pursuant to an interagency agreement to conduct
183	protective investigations under part III of chapter 39 and
184	chapter 415; or to the Department of Financial Services pursuant
185	to an interagency agreement to facilitate the location of owners
186	of unclaimed property, the validation of unclaimed property
187	claims, and the identification of fraudulent or false claims.
188	Section 6. Paragraph (a) of subsection (4) of section
189	943.0585, Florida Statutes, is amended to read:
190	943.0585 Court-ordered expunction of criminal history
191	records.--The courts of this state have jurisdiction over their
192	own procedures, including the maintenance, expunction, and
193	correction of judicial records containing criminal history
194	information to the extent such procedures are not inconsistent
195	with the conditions, responsibilities, and duties established by
196	this section. Any court of competent jurisdiction may order a
197	criminal justice agency to expunge the criminal history record
198	of a minor or an adult who complies with the requirements of
199	this section. The court shall not order a criminal justice
200	agency to expunge a criminal history record until the person
201	seeking to expunge a criminal history record has applied for and
202	received a certificate of eligibility for expunction pursuant to
203	subsection (2). A criminal history record that relates to a
204	violation of s. 393.135, s. 394.4593, s. 787.025, chapter 794,
205	s. 796.03, s. 800.04, s. 810.14, s. 817.034, s. 825.1025, s.
206	827.071, chapter 839, s. 847.0133, s. 847.0135, s. 847.0145, s.
207	893.135, s. 916.1075, a violation enumerated in s. 907.041, or
208	any violation specified as a predicate offense for registration
209	as a sexual predator pursuant to s. 775.21, without regard to
210	whether that offense alone is sufficient to require such
211	registration, or for registration as a sexual offender pursuant
212	to s. 943.0435, may not be expunged, without regard to whether
213	adjudication was withheld, if the defendant was found guilty of
214	or pled guilty or nolo contendere to the offense, or if the
215	defendant, as a minor, was found to have committed, or pled
216	guilty or nolo contendere to committing, the offense as a
217	delinquent act. The court may only order expunction of a
218	criminal history record pertaining to one arrest or one incident
219	of alleged criminal activity, except as provided in this
220	section. The court may, at its sole discretion, order the
221	expunction of a criminal history record pertaining to more than
222	one arrest if the additional arrests directly relate to the
223	original arrest. If the court intends to order the expunction of
224	records pertaining to such additional arrests, such intent must
225	be specified in the order. A criminal justice agency may not
226	expunge any record pertaining to such additional arrests if the
227	order to expunge does not articulate the intention of the court
228	to expunge a record pertaining to more than one arrest. This
229	section does not prevent the court from ordering the expunction
230	of only a portion of a criminal history record pertaining to one
231	arrest or one incident of alleged criminal activity.
232	Notwithstanding any law to the contrary, a criminal justice
233	agency may comply with laws, court orders, and official requests
234	of other jurisdictions relating to expunction, correction, or
235	confidential handling of criminal history records or information
236	derived therefrom. This section does not confer any right to the
237	expunction of any criminal history record, and any request for
238	expunction of a criminal history record may be denied at the
239	sole discretion of the court.
240	(4) EFFECT OF CRIMINAL HISTORY RECORD EXPUNCTION.--Any
241	criminal history record of a minor or an adult which is ordered
242	expunged by a court of competent jurisdiction pursuant to this
243	section must be physically destroyed or obliterated by any
244	criminal justice agency having custody of such record; except
245	that any criminal history record in the custody of the
246	department must be retained in all cases. A criminal history
247	record ordered expunged that is retained by the department is
248	confidential and exempt from the provisions of s. 119.07(1) and
249	s. 24(a), Art. I of the State Constitution and not available to
250	any person or entity except upon order of a court of competent
251	jurisdiction. A criminal justice agency may retain a notation
252	indicating compliance with an order to expunge.
253	(a) The person who is the subject of a criminal history
254	record that is expunged under this section or under other
255	provisions of law, including former s. 893.14, former s. 901.33,
256	and former s. 943.058, may lawfully deny or fail to acknowledge
257	the arrests covered by the expunged record, except when the
258	subject of the record:
259	1. Is a candidate for employment with a criminal justice
260	agency;
261	2. Is a defendant in a criminal prosecution;
262	3. Concurrently or subsequently petitions for relief under
263	this section or s. 943.059;
264	4. Is a candidate for admission to The Florida Bar;
265	5. Is seeking to be employed or licensed by or to contract
266	with the Department of Children and Family Services, the Agency
267	for Health Care Administration, the Agency for Persons with
268	Disabilities, or the Department of Juvenile Justice or to be
269	employed or used by such contractor or licensee in a sensitive
270	position having direct contact with children, the
271	developmentally disabled, the aged, or the elderly as provided
272	in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
273	402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
274	chapter 916, s. 985.644, chapter 400, or chapter 429;
275	6. Is seeking to be employed or licensed by the Department
276	of Education, any district school board, any university
277	laboratory school, any charter school, any private or parochial
278	school, or any local governmental entity that licenses child
279	care facilities; or
280	7. Is seeking authorization from a seaport listed in s.
281	311.09 for employment within or access to one or more of such
282	seaports pursuant to s. 311.12.
283	Section 7. Paragraph (a) of subsection (4) of section
284	943.059, Florida Statutes, is amended to read:
285	943.059 Court-ordered sealing of criminal history
286	records.--The courts of this state shall continue to have
287	jurisdiction over their own procedures, including the
288	maintenance, sealing, and correction of judicial records
289	containing criminal history information to the extent such
290	procedures are not inconsistent with the conditions,
291	responsibilities, and duties established by this section. Any
292	court of competent jurisdiction may order a criminal justice
293	agency to seal the criminal history record of a minor or an
294	adult who complies with the requirements of this section. The
295	court shall not order a criminal justice agency to seal a
296	criminal history record until the person seeking to seal a
297	criminal history record has applied for and received a
298	certificate of eligibility for sealing pursuant to subsection
299	(2). A criminal history record that relates to a violation of s.
300	393.135, s. 394.4593, s. 787.025, chapter 794, s. 796.03, s.
301	800.04, s. 810.14, s. 817.034, s. 825.1025, s. 827.071, chapter
302	839, s. 847.0133, s. 847.0135, s. 847.0145, s. 893.135, s.
303	916.1075, a violation enumerated in s. 907.041, or any violation
304	specified as a predicate offense for registration as a sexual
305	predator pursuant to s. 775.21, without regard to whether that
306	offense alone is sufficient to require such registration, or for
307	registration as a sexual offender pursuant to s. 943.0435, may
308	not be sealed, without regard to whether adjudication was
309	withheld, if the defendant was found guilty of or pled guilty or
310	nolo contendere to the offense, or if the defendant, as a minor,
311	was found to have committed or pled guilty or nolo contendere to
312	committing the offense as a delinquent act. The court may only
313	order sealing of a criminal history record pertaining to one
314	arrest or one incident of alleged criminal activity, except as
315	provided in this section. The court may, at its sole discretion,
316	order the sealing of a criminal history record pertaining to
317	more than one arrest if the additional arrests directly relate
318	to the original arrest. If the court intends to order the
319	sealing of records pertaining to such additional arrests, such
320	intent must be specified in the order. A criminal justice agency
321	may not seal any record pertaining to such additional arrests if
322	the order to seal does not articulate the intention of the court
323	to seal records pertaining to more than one arrest. This section
324	does not prevent the court from ordering the sealing of only a
325	portion of a criminal history record pertaining to one arrest or
326	one incident of alleged criminal activity. Notwithstanding any
327	law to the contrary, a criminal justice agency may comply with
328	laws, court orders, and official requests of other jurisdictions
329	relating to sealing, correction, or confidential handling of
330	criminal history records or information derived therefrom. This
331	section does not confer any right to the sealing of any criminal
332	history record, and any request for sealing a criminal history
333	record may be denied at the sole discretion of the court.
334	(4) EFFECT OF CRIMINAL HISTORY RECORD SEALING.--A criminal
335	history record of a minor or an adult which is ordered sealed by
336	a court of competent jurisdiction pursuant to this section is
337	confidential and exempt from the provisions of s. 119.07(1) and
338	s. 24(a), Art. I of the State Constitution and is available only
339	to the person who is the subject of the record, to the subject's
340	attorney, to criminal justice agencies for their respective
341	criminal justice purposes, which include conducting a criminal
342	history background check for approval of firearms purchases or
343	transfers as authorized by state or federal law, to judges in
344	the state courts system for the purpose of assisting them in
345	their case-related decisionmaking responsibilities, as set forth
346	in s. 943.053(5), or to those entities set forth in
347	subparagraphs (a)1., 4., 5., 6., and 8. for their respective
348	licensing, access authorization, and employment purposes.
349	(a) The subject of a criminal history record sealed under
350	this section or under other provisions of law, including former
351	s. 893.14, former s. 901.33, and former s. 943.058, may lawfully
352	deny or fail to acknowledge the arrests covered by the sealed
353	record, except when the subject of the record:
354	1. Is a candidate for employment with a criminal justice
355	agency;
356	2. Is a defendant in a criminal prosecution;
357	3. Concurrently or subsequently petitions for relief under
358	this section or s. 943.0585;
359	4. Is a candidate for admission to The Florida Bar;
360	5. Is seeking to be employed or licensed by or to contract
361	with the Department of Children and Family Services, the Agency
362	for Health Care Administration, the Agency for Persons with
363	Disabilities, or the Department of Juvenile Justice or to be
364	employed or used by such contractor or licensee in a sensitive
365	position having direct contact with children, the
366	developmentally disabled, the aged, or the elderly as provided
367	in s. 110.1127(3), s. 393.063, s. 394.4572(1), s. 397.451, s.
368	402.302(3), s. 402.313(3), s. 409.175(2)(i), s. 415.102(5)(4),
369	s. 415.103, chapter 916, s. 985.644, chapter 400, or chapter
370	429;
371	6. Is seeking to be employed or licensed by the Department
372	of Education, any district school board, any university
373	laboratory school, any charter school, any private or parochial
374	school, or any local governmental entity that licenses child
375	care facilities;
376	7. Is attempting to purchase a firearm from a licensed
377	importer, licensed manufacturer, or licensed dealer and is
378	subject to a criminal history check under state or federal law;
379	or
380	8. Is seeking authorization from a Florida seaport
381	identified in s. 311.09 for employment within or access to one
382	or more of such seaports pursuant to s. 311.12.
383	Section 8. This act shall take effect July 1, 2010.

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