Bill Text: FL S0460 | 2012 | Regular Session | Comm Sub
Bill Title: Intellectual Disabilities
Spectrum: Bipartisan Bill
Status: (Failed) 2012-03-09 - Died in Budget Subcommittee on Health and Human Services Appropriations [S0460 Detail]
Download: Florida-2012-S0460-Comm_Sub.html
Florida Senate - 2012 CS for SB 460 By the Committee on Children, Families, and Elder Affairs; and Senator Altman 586-03224-12 2012460c1 1 A bill to be entitled 2 An act relating to intellectual disabilities; amending 3 s. 39.502, F.S.; substituting the Arc of Florida for 4 the Association for Retarded Citizens for purposes of 5 certain proceedings relating to children; amending ss. 6 40.013, 86.041, 92.53, 92.54, and 92.55, F.S.; 7 substituting the term “intellectual disability” for 8 the term “mental retardation”; amending s. 320.10, 9 F.S.; substituting the Arc of Florida for the 10 Association for Retarded Citizens; amending ss. 11 383.14, 393.063, 393.11, and 394.455, F.S.; 12 substituting the term “intellectual disability” for 13 the term “mental retardation”; clarifying in s. 14 393.063, that the meaning of the terms “intellectual 15 disability” or “intellectually disabled” is the same 16 as the meaning of the terms “mental retardation,” 17 “retarded,” and “mentally retarded” for purposes of 18 matters relating to the criminal laws and court rules; 19 amending s. 400.960, F.S.; revising definitions 20 relating to intermediate care facilities for the 21 developmentally disabled to delete unused terms; 22 amending s. 408.032, F.S.; conforming a cross 23 reference; amending s. 409.908, F.S.; substituting the 24 term “intellectually disabled” for the term “mentally 25 retarded”; amending ss. 413.20, 440.49, and 499.0054, 26 F.S.; substituting the term “intellectual disability” 27 for the term “mental retardation”; amending s. 28 514.072, F.S.; conforming a cross-reference and 29 deleting obsolete provisions; amending ss. 627.6041, 30 627.6615, 641.31, 650.05, 765.204, 849.04, 914.16, 31 914.17, 916.105, and 916.106, F.S.; substituting the 32 term “intellectual disability” for the term “mental 33 retardation”; amending s. 916.107, F.S.; substituting 34 the term “intellectual disability” for the term 35 “retardation”; providing a directive to the Division 36 of Statutory Revision; amending ss. 916.301, 916.3012, 37 916.302, 916.3025, 916.303, 916.304, 918.16, 921.137, 38 941.38, 944.602, 945.025, 945.12, 945.42, 947.185, 39 984.19, 985.14, 985.145, 985.18, 985.19, 985.195, and 40 985.61, F.S.; clarifying in s. 921.137, F.S., that the 41 terms “intellectual disability” or “intellectually 42 disabled” are interchangeable with and have the same 43 meaning as the terms “mental retardation,” or 44 “retardation” and “mentally retarded,” as defined 45 before the effective date of the act; substituting the 46 term “intellectual disability” for the term “mental 47 retardation”; expressing legislative intent; providing 48 an effective date. 49 50 Be It Enacted by the Legislature of the State of Florida: 51 52 Section 1. Subsection (15) of section 39.502, Florida 53 Statutes, is amended to read: 54 39.502 Notice, process, and service.— 55 (15) A party who is identified as a person who has awith56 mental illness orwitha developmental disability must be 57 informed by the court of the availability of advocacy services 58 through the department, the Arc of FloridaAssociation for59Retarded Citizens, or other appropriate mental health or 60 developmental disability advocacy groups and encouraged to seek 61 such services. 62 Section 2. Subsection (9) of section 40.013, Florida 63 Statutes, is amended to read: 64 40.013 Persons disqualified or excused from jury service.— 65 (9) Any person who is responsible for the care of a person 66 who, because of mental illness, intellectual disabilitymental67retardation, senility, or other physical or mental incapacity, 68 is incapable of caring for himself or herself shall be excused 69 from jury service upon request. 70 Section 3. Section 86.041, Florida Statutes, is amended to 71 read: 72 86.041 Actions by executors, administrators, trustees, 73 etc.—Any person interested as or through an executor, 74 administrator, trustee, guardian, or other fiduciary, creditor, 75 devisee, legatee, heir, next of kin, or cestui que trust, in the 76 administration of a trust, a guardianship, orofthe estate of a 77 decedent, an infant, a mental incompetent, or insolvent may have 78 a declaration of rights or equitable or legal relations toin79respect thereto: 80 (1)ToAscertain any class of creditors, devisees, 81 legatees, heirs, next of kin, or others;or82 (2)ToDirect the executor, administrator, or trustee to 83 refrain from doing any particular act in his or her fiduciary 84 capacity; or 85 (3)ToDetermine any question relating toarising inthe 86 administration of the guardianship, estate, or trust, including 87 questions of construction of wills and other writings. 88 89 For the purpose of this section, a “mental incompetent” is one 90 who, because of mental illness, intellectual disabilitymental91retardation, senility, excessive use of drugs or alcohol, or 92 other mental incapacity, is incapable ofeithermanaging his or 93 her property or caring for himself or herself,or both. 94 Section 4. Section 92.53, Florida Statutes, is amended to 95 read: 96 92.53 Videotaping theoftestimony of a victim or witness 97 under age 16 or who has an intellectual disabilitypersonwith98mental retardation.— 99 (1) On motion and hearing in camera and a finding that 100 there is a substantial likelihood that a victim or witness who 101 is under the age of 16 or who has an intellectual disabilityis102a person with mental retardationas defined in s. 393.063 would 103 suffer at least moderate emotional or mental harm due to the 104 presence of the defendant if such victim or witnessthe child or105person with mental retardationis required to testify in open 106 court, orthat such victim or witnessisotherwiseunavailable 107 as defined in s. 90.804(1), the trial court may order the 108 videotaping of the testimony of the victim or witness in a case, 109 whether civil or criminal in nature, in which videotaped 110 testimony is to be usedutilizedat trial in lieu of trial 111 testimony in open court. 112 (2) The motion may be filed by: 113 (a) The victim or witness, or the victim’s or witness’s 114 attorney, parent, legal guardian, or guardian ad litem; 115 (b) A trial judge on his or her own motion; 116 (c) Any party in a civil proceeding; or 117 (d) The prosecuting attorney or the defendant, or the 118 defendant’s counsel. 119 (3) The judge shall preside, or shall appoint a special 120 master to preside, at the videotaping unlessthe following121conditions are met: 122 (a) The child or the person who has the intellectual 123 disabilitywith mental retardationis represented by a guardian 124 ad litem or counsel; 125 (b) The representative of the victim or witness and the 126 counsel for each party stipulate that the requirement for the 127 presence of the judge or special master may be waived; and 128 (c) The court finds at a hearing on the motion that the 129 presence of a judge or special master is not necessary to 130 protect the victim or witness. 131 (4) The defendant and the defendant’s counsel mustshallbe 132 present at the videotaping,unless the defendant has waived this 133 right. The court may require the defendant to view the testimony 134 from outside the presence of the child or the person who has an 135 intellectual disabilitywithmental retardationby means of a 136 two-way mirror or another similar method that ensureswill137ensurethat the defendant can observe and hear the testimony of 138 the victim or witness in person, butthatthe victim or witness 139 cannot hear or see the defendant. The defendant and the attorney 140 for the defendant may communicate by any appropriate private 141 method. 142 (5) Any party, or the court on its own motion, may request 143 the aid of an interpreter, as provided in s. 90.606, to aid the 144 parties in formulating methods of questioning the child or 145 person who has the intellectual disabilitywith mental146retardationand in interpreting the answers of the child or 147 person duringwith mental retardation throughoutproceedings 148 conducted under this section. 149 (6) The motion referred to in subsection (1) may be made at 150 any time with reasonable notice to each party to the cause, and 151 videotaping of testimony may be made any time after the court 152 grants the motion. The videotaped testimony isshall be153 admissible as evidence in the trial of the cause; however, such 154 testimony isshallnotbeadmissible in any trial or proceeding 155 in which such witness testifies by use of closed circuit 156 television pursuant to s. 92.54. 157 (7) The court shall make specific findings of fact, on the 158 record, as to the basis for its ruling under this section. 159 Section 5. Section 92.54, Florida Statutes, is amended to 160 read: 161 92.54 Use of closed circuit television in proceedings 162 involving a victim or witnessvictims or witnessesunder the age 163 of 16 or who has an intellectual disabilitypersons with mental164retardation.— 165 (1) Upon motion and hearing in camera and upon a finding 166 that there is a substantial likelihood that a victim or witness 167 under the age of 16 or who has an intellectual disabilitythe168child or person withmental retardationwill suffer at least 169 moderate emotional or mental harm due to the presence of the 170 defendant if such victim or witnessthe child or person with171mental retardationis required to testify in open court, orthat172such victim or witnessis unavailable as defined in s. 173 90.804(1), the trial court may order that the testimony of thea174child under the age of 16 or person with mental retardation who175is avictim or witness be taken outside of the courtroom and 176 shown by means of closed circuit television. 177 (2) The motion may be filed by the victim or witness; the 178 attorney, parent, legal guardian, or guardian ad litem of the 179 victim or witness; the prosecutor; the defendant or the 180 defendant’s counsel; or the trial judge on his or her own 181 motion. 182 (3) Only the judge, the prosecutor, the defendant, the 183 attorney for the defendant, the operators of the videotape 184 equipment, an interpreter, and some other person who, in the 185 opinion of the court, contributes to the well-being of the child 186 or the person who has an intellectual disabilitywith mental187retardationand who will not be a witness in the case may be in 188 the room during the recording of the testimony. 189 (4) During the victim’s or witness’schild’s or person’s190with mental retardationtestimony by closed circuit television, 191 the court may require the defendant to view the testimony from 192 the courtroom. In such a case, the court shall permit the 193 defendant to observe and hear the testimony of the victim or 194 witnesschild or person with mental retardation, but mustshall195 ensure that the victim or witnesschild or person with mental196retardationcannot hear or see the defendant. The defendant’s 197 right to assistance of counsel, which includes the right to 198 immediate and direct communication with counsel conducting 199 cross-examination, must be protected and, upon the defendant’s 200 request, such communication mustshallbe provided by any 201 appropriate electronic method. 202 (5) The court shall make specific findings of fact, on the 203 record, as to the basis for its ruling under this section. 204 Section 6. Section 92.55, Florida Statutes, is amended to 205 read: 206 92.55 Judicial or other proceedings involving victim or 207 witness under the age of 16 or person who has an intellectual 208 disabilitywith mental retardation; special protections; use of 209 registered service or therapy animals.— 210 (1) Upon motion of any party, upon motion of a parent, 211 guardian, attorney, or guardian ad litem for a victim or witness 212childunder the age of 16 or person who has an intellectual 213 disabilitywith mental retardation, or upon its own motion, the 214 court may enter any order necessary to protect sucha child215under the age of 16 or person with mental retardation who is a216 victim or witness in any judicial proceeding or other official 217 proceeding from severe emotional or mental harm due to the 218 presence of the defendant if the victim or witnesschild or219person with mental retardationis required to testify in open 220 court. Such orders mustshallrelate to the taking of testimony 221 andshallinclude, but are notbelimited to: 222 (a) Interviewing or the taking of depositions as part of a 223 civil or criminal proceeding. 224 (b) Examination and cross-examination for the purpose of 225 qualifying as a witness or testifying in any proceeding. 226 (c) The use of testimony taken outside of the courtroom, 227 including proceedings under ss. 92.53 and 92.54. 228 (2) In ruling upon the motion, the court shall consider 229take into consideration: 230 (a) The age of the child, the nature of the offense or act, 231 the relationship of the child to the parties in the case or to 232 the defendant in a criminal action, the degree of emotional 233 trauma that will result to the child as a consequence of the 234 defendant’s presence, and any other fact that the court deems 235 relevant; or 236 (b) The age of the person who has an intellectual 237 disabilitywith mental retardation, the functional capacity of 238 suchthepersonwith mental retardation, the nature of the 239 offenses or act, the relationship of the personwith mental240retardationto the parties in the case or to the defendant in a 241 criminal action, the degree of emotional trauma that will result 242 to the personwith mental retardationas a consequence of the 243 defendant’s presence, and any other fact that the court deems 244 relevant. 245 (3) In addition to such other reliefas isprovided by law, 246 the court may enter orders limiting the number of times that a 247 child or a person who has an intellectual disabilitywith mental248retardationmay be interviewed, prohibiting depositions of such 249achild or personwith mental retardation, requiring the 250 submission of questions before theprior toexamination of thea251 child or personwith mental retardation, setting the place and 252 conditions for interviewing theachild or personwith mental253retardationor for conducting any other proceeding, or 254 permitting or prohibiting the attendance of any person at any 255 proceeding. The court shall enter any order necessary to protect 256 the rights of all parties, including the defendant in any 257 criminal action. 258 (4) The court may set any other conditions it finds just 259 and appropriate whenon thetaking theoftestimony ofbya 260 child, including the use of a service or therapy animal that has 261 been evaluated and registered according to national standards, 262 in any proceeding involving a sexual offense. When deciding 263 whether to permit a child to testify with the assistance of a 264 registered service or therapy animal, the court shall consider 265take into considerationthe age of the child, the interests of 266 the child, the rights of the parties to the litigation, and any 267 other relevant factor that would facilitate the testimony by the 268 child. 269 Section 7. Subsection (1) of section 320.10, Florida 270 Statutes, is amended to read: 271 320.10 Exemptions.— 272 (1) The provisions of s. 320.08 do not apply to: 273 (a) Any motor vehicle or mobile home owned by, and operated 274 exclusively for the personal use of, any member of the United 275 States Armed Forces who is not a resident of this state and who 276 is stationed in the state while in compliance with military or 277 naval orders; 278 (b) Any motor vehicle owned or operated exclusively by the 279 Federal Government; 280 (c) Any motor vehicle owned and operated exclusively for 281 the benefit of the Boys’ Clubs of America, the National Audubon 282 Society, the National Children’s Cardiac Hospital, any humane 283 society, any nationally chartered veterans’ organization that 284 maintains a state headquarters in this state, the Children’s 285 Bible Mission, the Boy Scouts of America, the Girl Scouts of 286 America, the Salvation Army, the American National Red Cross, 287 the United Service Organization, any local member unit of the 288 National Urban League which provides free services to municipal 289 and county residents who are in need of such services, the Young 290 Men’s Christian Association, the Young Men’s Hebrew Association, 291 the Camp Fire Girls’ Council, the Young Women’s Christian 292 Association, the Young Women’s Hebrew Association, any local 293 member unit of the Arc of FloridaAssociation for Retarded294Citizens, the Children’s Home Society of Florida, or the 295 Goodwill Industries. A not-for-profit organization named in this 296 paragraph and its local affiliate organizations isshall be297 eligible for the exemption if itfor so long as eachmaintains 298 current articles of incorporation on file with the Department of 299 State and qualifies as a not-for-profit organization under s. 300 212.08; 301 (d) Any motor vehicle owned and operated by a church, 302 temple, or synagogue for exclusive use as a community service 303 van or to transport passengers without compensation to religious 304 services or for religious education; 305 (e) Any motor vehicle owned and operated by the Civil Air 306 Patrol or the United States Coast Guard Auxiliary; 307 (f) Any mobile blood bank unit when operated as a nonprofit 308 service by an organization; 309 (g) Any mobile X-ray unit or truck or bus used exclusively 310 for public health purposes; 311 (h) Any school bus owned and operated by a nonprofit 312 educational or religious corporation; 313 (i) Any vehicle used by any of the various search and 314 rescue units of the several counties for exclusive use as a 315 search and rescue vehicle; orand316 (j) Any motor vehicle used by a community transportation 317 coordinator or a transportation operator as defined in part I of 318 chapter 427, and which is used exclusively to transport 319 transportation disadvantaged persons. 320 Section 8. Paragraph (d) of subsection (3) of section 321 383.14, Florida Statutes, is amended to read: 322 383.14 Screening for metabolic disorders, other hereditary 323 and congenital disorders, and environmental risk factors.— 324 (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department 325 shall administer and provide certain services to implement the 326 provisions of this section and shall: 327 (d) Maintain a confidential registry of cases, including 328 information of importance for the purpose of followup services 329 to prevent intellectual disabilitiesmental retardation, to 330 correct or ameliorate physical disabilitieshandicaps, and for 331 epidemiologic studies, if indicated. Such registry shall be 332 exempt from the provisions of s. 119.07(1). 333 334 All provisions of this subsection must be coordinated with the 335 provisions and plans established under this chapter, chapter 336 411, and Pub. L. No. 99-457. 337 Section 9. Subsection (9) and subsections (21) through (32) 338 of section 393.063, Florida Statutes, are reordered and amended 339 to read: 340 393.063 Definitions.—For the purposes of this chapter, the 341 term: 342 (9) “Developmental disability” means a disorder or syndrome 343 that is attributable to intellectual disabilityretardation, 344 cerebral palsy, autism, spina bifida, or Prader-Willi syndrome; 345 that manifests before the age of 18; and that constitutes a 346 substantial handicap that can reasonably be expected to continue 347 indefinitely. 348 (22)(21)“Intermediate care facility for the 349 developmentally disabled” or “ICF/DD” means a residential 350 facility licensed and certified underpursuant topart VIII of 351 chapter 400. 352 (23)(22)“Medical/dental services” means medically 353 necessary services thatwhichare provided or ordered for a 354 client by a person licensed under chapter 458, chapter 459, or 355 chapter 466. Such services may include, but are not limited to, 356 prescription drugs, specialized therapies, nursing supervision, 357 hospitalization, dietary services, prosthetic devices, surgery, 358 specialized equipment and supplies, adaptive equipment, and 359 other services as required to prevent or alleviate a medical or 360 dental condition. 361 (24)(23)“Personal care services” means individual 362 assistance with or supervision of essential activities of daily 363 living for self-care, including ambulation, bathing, dressing, 364 eating, grooming, and toileting, and other similar services that 365 are incidental to the care furnished and essential to the 366 health, safety, and welfare of the client ifwhen there isno 367 one else is available to perform those services. 368 (25)(24)“Prader-Willi syndrome” means an inherited 369 condition typified by neonatal hypotonia with failure to thrive, 370 hyperphagia or an excessive drive to eat which leads to obesity 371 usually at 18 to 36 months of age, mild to moderate intellectual 372 disabilitymental retardation, hypogonadism, short stature, mild 373 facial dysmorphism, and a characteristic neurobehavior. 374 (26)(25)“Relative” means an individual who is connected by 375 affinity or consanguinity to the client and who is 18 years of 376 age or older. 377 (27)(26)“Resident” means aanyperson who has awith378 developmental disability and residesdisabilities residingat a 379 residential facility, whether or not such person is a client of 380 the agency. 381 (28)(27)“Residential facility” means a facility providing 382 room and board and personal care for persons who havewith383 developmental disabilities. 384 (29)(28)“Residential habilitation” means supervision and 385 training with the acquisition, retention, or improvement in 386 skills related to activities of daily living, such as personal 387 hygiene skills, homemaking skills, and the social and adaptive 388 skills necessary to enable the individual to reside in the 389 community. 390 (30)(29)“Residential habilitation center” means a 391 community residential facility licensed under this chapter which 392 provides habilitation services. The capacity of such a facility 393 mayshallnot be fewer than nine residents. After October 1, 394 1989, new residential habilitation centers may not be licensed 395 and the licensed capacity for any existing residential 396 habilitation center may not be increased. 397 (31)(30)“Respite service” means appropriate, short-term, 398 temporary care that is provided to a person who has awith399 developmental disability in orderdisabilitiesto meet the 400 planned or emergency needs of the person or the family or other 401 direct service provider. 402 (32)(31)“Restraint” means a physical device, method, or 403 drug used to control dangerous behavior. 404 (a) A physical restraint is any manual method or physical 405 or mechanical device, material, or equipment attached or 406 adjacent to antheindividual’s body so that he or she cannot 407 easily remove the restraint and which restricts freedom of 408 movement or normal access to one’s body. 409 (b) A drug used as a restraint is a medication used to 410 control the person’s behavior or to restrict his or her freedom 411 of movement and is not a standard treatment for the person’s 412 medical or psychiatric condition. Physically holding a person 413 during a procedure to forcibly administer psychotropic 414 medication is a physical restraint. 415 (c) Restraint does not include physical devices, such as 416 orthopedically prescribed appliances, surgical dressings and 417 bandages, supportive body bands, or other physical holdingwhen418 necessary for routine physical examinations and tests; for 419 purposes of orthopedic, surgical, or other similar medical 420 treatment;when usedto provide support for the achievement of 421 functional body position or proper balance; orwhen usedto 422 protect a person from falling out of bed. 423 (21)(32)“Intellectual disability”“Retardation”means 424 significantly subaverage general intellectual functioning 425 existing concurrently with deficits in adaptive behavior which 426thatmanifests before the age of 18 and can reasonably be 427 expected to continue indefinitely. For the purposes of this 428 definition, the term: 429 (a) “Adaptive behavior” means the effectiveness or degree 430 with which an individual meets the standards of personal 431 independence and social responsibility expected of his or her 432 age, cultural group, and community. 433 (b) “Significantly subaverage general intellectual 434 functioning,”for the purpose of this definition,means 435 performance thatwhichis two or more standard deviations from 436 the mean score on a standardized intelligence test specified in 437 the rules of the agency.“Adaptive behavior,” for the purpose of438this definition, means the effectiveness or degree with which an439individual meets the standards of personal independence and440social responsibility expected of his or her age, cultural441group, and community.442 443 For purposes of the application of the criminal laws and 444 procedural rules of this state to matters relating to pretrial, 445 trial, sentencing, and any matters relating to the imposition 446 and execution of the death penalty, the terms “intellectual 447 disability” or “intellectually disabled” are interchangeable 448 with and have the same meaning as the terms “mental retardation” 449 or “retardation” and “mentally retarded” as defined in this 450 section before July 1, 2012. 451 Section 10. Subsection (1), paragraphs (c) and (d) of 452 subsection (2), paragraphs (b) through (d) of subsection (3), 453 paragraph (b) of subsection (4), paragraphs (b), (e), (f), and 454 (g) of subsection (5), subsection (6), paragraph (d) of 455 subsection (7), paragraph (b) of subsection (8), subsection 456 (10), and paragraph (b) of subsection (12) of section 393.11, 457 Florida Statutes, are amended to read: 458 393.11 Involuntary admission to residential services.— 459 (1) JURISDICTION.—IfWhena person has an intellectual 460 disabilityis mentally retardedand requires involuntary 461 admission to residential services provided by the agency, the 462 circuit court of the county in which the person resides has 463shall havejurisdiction to conduct a hearing and enter an order 464 involuntarily admitting the person in order forthatthe person 465 tomayreceive the care, treatment, habilitation, and 466 rehabilitation thatwhichthe person needs. For the purpose of 467 identifying intellectual disabilitymental retardation, 468 diagnostic capability shall be established by the agency. Except 469 as otherwise specified, the proceedings under this section are 470shall begoverned by the Florida Rules of Civil Procedure. 471 (2) PETITION.— 472 (c) The petition shall be verified and mustshall: 473 1. State the name, age, and present address of the 474 commissioners and their relationship to the person who has an 475 intellectual disabilitywith mental retardationor autism; 476 2. State the name, age, county of residence, and present 477 address of the person who has an intellectual disabilitywith478mental retardationor autism; 479 3. Allege that the commission believes that the person 480 needs involuntary residential services and specify the factual 481 information on which the belief is based; 482 4. Allege that the person lacks sufficient capacity to give 483 express and informed consent to a voluntary application for 484 services and lacks the basic survival and self-care skills to 485 provide for the person’s well-being or is likely to physically 486 injure others if allowed to remain at liberty; and 487 5. State which residential setting is the least restrictive 488 and most appropriate alternative and specify the factual 489 information on which the belief is based. 490 (d) The petition mustshallbe filed in the circuit court 491 of the county in which the person who has the intellectual 492 disabilitywith mental retardationor autism resides. 493 (3) NOTICE.— 494 (b) IfWhenevera motion or petition has been filed 495 pursuant to s. 916.303 to dismiss criminal charges against a 496 defendant who has an intellectual disabilitywith retardationor 497 autism, and a petition is filed to involuntarily admit the 498 defendant to residential services under this section, the notice 499 of the filing of the petition mustshallalso be given to the 500 defendant’s attorney, the state attorney of the circuit from 501 which the defendant was committed, and the agency. 502 (c) The notice mustshallstate that a hearing shall be set 503 to inquire into the need of the person who has an intellectual 504 disabilitywith mental retardationor autism for involuntary 505 residential services. The notice mustshallalso state the date 506 of the hearing on the petition. 507 (d) The notice mustshallstate that the individual who has 508 an intellectual disabilitywith mental retardationor autism has 509 the right to be represented by counsel of his or her own choice 510 and that, if the person cannot afford an attorney, the court 511 shall appoint one. 512 (4) AGENCY PARTICIPATION.— 513 (b) Following examination, the agency shall file a written 514 report with the court at leastnot less than10 working days 515 before the date of the hearing. The report must be served on the 516 petitioner, the person who has the intellectual disabilitywith517mental retardation, and the person’s attorney at the time the 518 report is filed with the court. 519 (5) EXAMINING COMMITTEE.— 520 (b) The court shall appoint at leastno fewer thanthree 521 disinterested experts who have demonstrated to the court an 522 expertise in the diagnosis, evaluation, and treatment of persons 523 who have intellectual disabilitieswith mental retardation. The 524 committee must include at least one licensed and qualified 525 physician, one licensed and qualified psychologist, and one 526 qualified professional who, atwitha minimum, hasofa masters 527 degree in social work, special education, or vocational 528 rehabilitation counseling, to examine the person and to testify 529 at the hearing on the involuntary admission to residential 530 services. 531 (e) The committee shall prepare a written report for the 532 court. The report must explicitly document the extent that the 533 person meets the criteria for involuntary admission. The report, 534 and expert testimony, must include, but not be limited to: 535 1. The degree of the person’s intellectual disability 536mental retardationand whether, using diagnostic capabilities 537 established by the agency, the person is eligible for agency 538 services; 539 2. Whether, because of the person’s degree of intellectual 540 disabilitymental retardation, the person: 541 a. Lacks sufficient capacity to give express and informed 542 consent to a voluntary application for services pursuant to s. 543 393.065; 544 b. Lacks basic survival and self-care skills to such a 545 degree that close supervision and habilitation in a residential 546 setting is necessary and if not provided would result in a real 547 and present threat of substantial harm to the person’s well 548 being; or 549 c. Is likely to physically injure others if allowed to 550 remain at liberty. 551 3. The purpose to be served by residential care; 552 4. A recommendation on the type of residential placement 553 which would be the most appropriate and least restrictive for 554 the person; and 555 5. The appropriate care, habilitation, and treatment. 556 (f) The committee shall file the report with the court at 557 leastnot less than10 working days before the date of the 558 hearing. The report mustshallbe served on the petitioner, the 559 person who has the intellectual disabilitywith mental560retardation, the person’s attorney at the time the report is 561 filed with the court, and the agency. 562 (g) Members of the examining committee shall receive a 563 reasonable fee to be determined by the court. The fees shallare564tobe paid from the general revenue fund of the county in which 565 the person who has the intellectual disabilitywith mental566retardationresided when the petition was filed. 567 (6) COUNSEL; GUARDIAN AD LITEM.— 568 (a) The person who has the intellectual disability must 569with mental retardation shallbe represented by counsel at all 570 stages of the judicial proceeding. IfIn the eventthe person is 571 indigent and cannot afford counsel, the court shall appoint a 572 public defender at leastnot less than20 working days before 573 the scheduled hearing. The person’s counsel shall have full 574 access to the records of the service provider and the agency. In 575 all cases, the attorney shall represent the rights and legal 576 interests of the personwith mental retardation, regardless of 577 who initiatesmay initiatethe proceedings or payspaythe 578 attorney’s fee. 579 (b) If the attorney, during the course of his or her 580 representation, reasonably believes that the person who has the 581 intellectual disabilitywith mental retardationcannot 582 adequately act in his or her own interest, the attorney may seek 583 the appointment of a guardian ad litem. A prior finding of 584 incompetency is not required before a guardian ad litem is 585 appointed pursuant to this section. 586 (7) HEARING.— 587 (d) The person who has the intellectual disability must 588with mental retardation shallbe physically present throughout 589 the entire proceeding. If the person’s attorney believes that 590 the person’s presence at the hearing is not in his or herthe591person’sbest interest, the person’s presence may be waived once 592 the court has seen the person and the hearing has commenced. 593 (8) ORDER.— 594 (b) An order of involuntary admission to residential 595 services may not be entered unless the court finds that: 596 1. The person is intellectually disabledmentally retarded597 or autistic; 598 2. Placement in a residential setting is the least 599 restrictive and most appropriate alternative to meet the 600 person’s needs; and 601 3. Because of the person’s degree of intellectual 602 disabilitymental retardationor autism, the person: 603 a. Lacks sufficient capacity to give express and informed 604 consent to a voluntary application for services pursuant to s. 605 393.065 and lacks basic survival and self-care skills to such a 606 degree that close supervision and habilitation in a residential 607 setting is necessary and, if not provided, would result in a 608 real and present threat of substantial harm to the person’s 609 well-being; or 610 b. Is likely to physically injure others if allowed to 611 remain at liberty. 612 (10) COMPETENCY.— 613 (a) The issue of competency isshall beseparate and 614 distinct from a determination of the appropriateness of 615 involuntary admission to residential services due to 616 intellectual disabilityfor a condition of mental retardation. 617 (b) The issue of the competency of a person who has an 618 intellectual disabilitywith mental retardationfor purposes of 619 assigning guardianship shall be determined in a separate 620 proceeding according to the procedures and requirements of 621 chapter 744. The issue of the competency of a person who has an 622 intellectual disabilitywith mental retardationor autism for 623 purposes of determining whether the person is competent to 624 proceed in a criminal trial shall be determined in accordance 625 with chapter 916. 626 (12) APPEAL.— 627 (b) The filing of an appeal by the person who has an 628 intellectual disability stayswith mental retardation shall stay629 admission of the person into residential care. The stay remains 630shall remainin effect during the pendency of all review 631 proceedings in Florida courts until a mandate issues. 632 Section 11. Subsection (18) of section 394.455, Florida 633 Statutes, is amended to read: 634 394.455 Definitions.—As used in this part, unless the 635 context clearly requires otherwise, the term: 636 (18) “Mental illness” means an impairment of the mental or 637 emotional processes that exercise conscious control of one’s 638 actions or of the ability to perceive or understand reality, 639 which impairment substantially interferes with theaperson’s 640 ability to meet the ordinary demands of living, regardless of641etiology. For the purposes of this part, the term does not 642 include aretardation ordevelopmental disability as defined in 643 chapter 393, intoxication, or conditions manifested only by 644 antisocial behavior or substance abuse impairment. 645 Section 12. Subsections (3) through (13) of section 646 400.960, Florida Statutes, are amended to read: 647 400.960 Definitions.—As used in this part, the term: 648(3)“Autism” has the same meaning as in s.393.063.649(4)“Cerebral palsy” has the same meaning as in s.393.063.650 (3)(5)“Client” means any person determined by the Agency 651 for Persons with Disabilities to be eligible for developmental 652 services. 653 (4)(6)“Developmentally disabled”“developmental654disability”has the same meaning as “developmental disability” 655 as that term is defined in s. 393.063. 656 (5)(7)“Direct service provider” means a person 18 years of 657 age or older who has direct contact with individuals who have 658withdevelopmental disabilities and who is unrelated to suchthe659 individualswith developmental disabilities. 660 (6)(8)“Intermediate care facility for the developmentally 661 disabled” means a residential facility licensed and certified in 662 accordance with state law, and certified by the Federal 663 Government, pursuant to the Social Security Act, as a provider 664 of Medicaid services to persons who havewithdevelopmental 665 disabilities. 666(9)“Prader-Willi syndrome” has the same meaning as in s.667393.063.668 (7)(10)(a)“Restraint” means a physical device, method, or 669 drug used to control behavior. 670 (a) A physical restraint is any manual method or physical 671 or mechanical device, material, or equipment attached or 672 adjacent to the individual’s body so that he or she cannot 673 easily remove the restraint and which restricts freedom of 674 movement or normal access to one’s body. 675 (b) A drug used as a restraint is a medication used to 676 control the person’s behavior or to restrict his or her freedom 677 of movement. Physically holding a person during a procedure to 678 forcibly administer psychotropic medication is a physical 679 restraint. 680 (c) Restraint does not include physical devices, such as 681 orthopedically prescribed appliances, surgical dressings and 682 bandages, supportive body bands, or other physical holdingwhen683 necessary for routine physical examinations and tests; for 684 purposes of orthopedic, surgical, or other similar medical 685 treatment;when usedto provide support for the achievement of 686 functional body position or proper balance; orwhen usedto 687 protect a person from falling out of bed. 688(11) “Retardation” has the same meaning as in s.393.063.689 (8)(12)“Seclusion” means the physical segregation of a 690 person in any fashion or the involuntary isolation of a person 691 in a room or area from which the person is prevented from 692 leaving. The prevention may be by physical barrier or by a staff 693 member who is acting in a manner, or who is physically situated, 694 so as to prevent the person from leaving the room or area. For 695 purposes of this part, the term does not mean isolation due to a 696 person’s medical condition or symptoms. 697(13)“Spina bifida” has the same meaning as in s.393.063.698 Section 13. Subsection (12) of section 408.032, Florida 699 Statutes, is amended to read: 700 408.032 Definitions relating to Health Facility and 701 Services Development Act.—As used in ss. 408.031-408.045, the 702 term: 703 (12) “Intermediate care facility for the developmentally 704 disabled” means a residential facility licensed under part VIII 705 of chapter 400chapter 393 and certified by the Federal706Government pursuant to the Social Security Act as a provider of707Medicaid services to persons who are mentally retarded or who708have a related condition. 709 Section 14. Subsection (8) of section 409.908, Florida 710 Statutes, is amended to read: 711 (8) A provider of home-based or community-based services 712 rendered pursuant to a federally approved waiver shall be 713 reimbursed based on an established or negotiated rate for each 714 service. These rates shall be established according to an 715 analysis of the expenditure history and prospective budget 716 developed by each contract provider participating in the waiver 717 program, or under any other methodology adopted by the agency 718 and approved by the Federal Government in accordance with the 719 waiver. Privately owned and operated community-based residential 720 facilities which meet agency requirements and which formerly 721 received Medicaid reimbursement for the optional intermediate 722 care facility for the intellectually disabledmentally retarded723 service may participate in the developmental services waiver as 724 part of a home-and-community-based continuum of care for 725 Medicaid recipients who receive waiver services. 726 Section 15. Subsection (16) of section 413.20, Florida 727 Statutes, is amended to read: 728 413.20 Definitions.—As used in this part, the term: 729 (16) “Person who has a significant disability” means an 730 individual who has a disability that is a severe physical or 731 mental impairment that seriously limits one or more functional 732 capacities, such as mobility, communication, self-care, self 733 direction, interpersonal skills, work tolerance, or work skills, 734 in terms of an employment outcome; whose vocational 735 rehabilitation may be expected to require multiple vocational 736 rehabilitation services over an extended period of time; and who 737 has one or more physical or mental disabilities resulting from 738 amputation, arthritis, autism, blindness, burn injury, cancer, 739 cerebral palsy, cystic fibrosis, deafness, head injury, heart 740 disease, hemiplegia, hemophilia, respiratory or pulmonary 741 dysfunction, intellectual disabilitymental retardation, mental 742 illness, multiple sclerosis, muscular dystrophy, musculoskeletal 743 disorder, neurological disorder, including stroke and epilepsy, 744 paraplegia, quadriplegia, or other spinal cord condition, 745 sickle-cell anemia, specific learning disability, end-stage 746 renal disease, or another disability or a combination of 747 disabilities that is determined, after an assessment for 748 determining eligibility and vocational rehabilitation needs, to 749 cause comparable substantial functional limitation. 750 Section 16. Paragraph (a) of subsection (6) of section 751 440.49, Florida Statutes, is amended to read: 752 440.49 Limitation of liability for subsequent injury 753 through Special Disability Trust Fund.— 754 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.— 755 (a) Reimbursement is not allowed under this section unless 756 it is established that the employer knew of the preexisting 757 permanent physical impairment prior to the occurrence of the 758 subsequent injury or occupational disease, andthatthe 759 permanent physical impairment is one of the following: 760 1. Epilepsy. 761 2. Diabetes. 762 3. Cardiac disease. 763 4. Amputation of foot, leg, arm, or hand. 764 5. Total loss of sight of one or both eyes or a partial 765 loss of corrected vision of more than 75 percent bilaterally. 766 6. Residual disability from poliomyelitis. 767 7. Cerebral palsy. 768 8. Multiple sclerosis. 769 9. Parkinson’s disease. 770 10. Meniscectomy. 771 11. Patellectomy. 772 12. Ruptured cruciate ligament. 773 13. Hemophilia. 774 14. Chronic osteomyelitis. 775 15. Surgical or spontaneous fusion of a major weight 776 bearing joint. 777 16. Hyperinsulinism. 778 17. Muscular dystrophy. 779 18. Thrombophlebitis. 780 19. Herniated intervertebral disk. 781 20. Surgical removal of an intervertebral disk or spinal 782 fusion. 783 21. One or more back injuries or a disease process of the 784 back resulting in disability over a total of 120 or more days, 785 if substantiated by a doctor’s opinion that there was a 786 preexisting impairment to the claimant’s back. 787 22. Total deafness. 788 23. Intellectual disability ifMental retardation, provided789 the employee’s intelligence quotient is such that she or he 790 falls within the lowest 2 percentile of the general population. 791 However,it shall not be necessary forthe employer does not 792 need to know the employee’s actual intelligence quotient or 793 actual relative ranking in relation to the intelligence quotient 794 of the general population. 795 24. Any permanent physical condition thatwhich, prior to 796 the industrial accident or occupational disease, constitutes a 797 20 percent20-percentimpairment of a member or of the body as a 798 whole. 799 25. Obesity if, providedthe employee is 30 percent or more 800 over the average weight designated for her or his height and age 801 in the Table of Average Weight of Americans by Height and Age 802 prepared by the Society of Actuaries using data from the 1979 803 Build and Blood Pressure Study. 804 26. Any permanent physical impairment as provideddefined805 in s. 440.15(3) which is a result of a prior industrial accident 806 with the same employer or the employer’s parent company, 807 subsidiary, sister company, or affiliate located within the 808 geographical boundaries of this state. 809 Section 17. Paragraph (g) of subsection (1) of section 810 499.0054, Florida Statutes, is amended to read: 811 499.0054 Advertising and labeling of drugs, devices, and 812 cosmetics; exemptions.— 813 (1) It is a violation of the Florida Drug and Cosmetic Act 814 to perform or cause the performance of any of the following 815 acts: 816 (g) The advertising of any drug or device represented to 817 have any effect in any of the following conditions, disorders, 818 diseases, or processes: 819 1. Blood disorders. 820 2. Bone or joint diseases. 821 3. Kidney diseases or disorders. 822 4. Cancer. 823 5. Diabetes. 824 6. Gall bladder diseases or disorders. 825 7. Heart and vascular diseases. 826 8. High blood pressure. 827 9. Diseases or disorders of the ear or auditory apparatus, 828 including hearing loss or deafness. 829 10. Mental disease or intellectual disabilitymental830retardation. 831 11. Paralysis. 832 12. Prostate gland disorders. 833 13. Conditions of the scalp affecting hair loss. 834 14. Baldness. 835 15. Endocrine disorders. 836 16. Sexual impotence. 837 17. Tumors. 838 18. Venereal diseases. 839 19. Varicose ulcers. 840 20. Breast enlargement. 841 21. Purifying blood. 842 22. Metabolic disorders. 843 23. Immune system disorders or conditions affecting the 844 immune system. 845 24. Extension of life expectancy. 846 25. Stress and tension. 847 26. Brain stimulation or performance. 848 27. The body’s natural defense mechanisms. 849 28. Blood flow. 850 29. Depression. 851 30. Human immunodeficiency virus or acquired immune 852 deficiency syndrome or related disorders or conditions. 853 Section 18. Section 514.072, Florida Statutes, is amended 854 to read: 855 514.072 Certification of swimming instructors for people 856 who have developmental disabilitiesrequired.—Any person working 857 at a swimming pool who holds himself or herself out as a 858 swimming instructor specializing in training people who have 859 developmental disabilities, as defined in s. 393.063(10), may be 860 certified by the Dan Marino Foundation, Inc., in addition to 861 being certified under s. 514.071. The Dan Marino Foundation, 862 Inc., must develop certification requirements and a training 863 curriculum for swimming instructors for people who have 864 developmental disabilitiesand must submit the certification865requirements to the Department of Health for review by January8661, 2007.A person certified under s.514.071before July 1,8672007, must meet the additional certification requirements of868this section before January 1, 2008.A person certified under s. 869 514.071on or after July 1, 2007,must meet the additional 870 certification requirements of this section within 6 months after 871 receiving certification under s. 514.071. 872 Section 19. Section 627.6041, Florida Statutes, is amended 873 to read: 874 627.6041HandicappedChildren with disabilities; 875 continuation of coverage.— 876 (1) A hospital or medical expense insurance policy or 877 health care services plan contract that is delivered or issued 878 for delivery in this state and that provides that coverage of a 879 dependent child terminateswill terminateupon attainment of the 880 limiting age for dependent children specified in the policy or 881 contract mustshallalso provide in substance that attainment of 882 the limiting age does not terminate the coverage of the child 883 while the child continues to be both: 884 (a)(1)Incapable of self-sustaining employment by reason of 885 an intellectualmental retardationor physical disability. 886handicap; and887 (b)(2)Chiefly dependent upon the policyholder or 888 subscriber for support and maintenance. 889 (2) If a claim is denied under a policy or contract for the 890 stated reason that the child has attained the limiting age for 891 dependent children specified in the policy or contract, the 892 notice of denial must state that the policyholder has the burden 893 of establishing that the child continues to meet the criteria 894 specified in subsectionsubsections(1)and (2). 895 Section 20. Section 627.6615, Florida Statutes, is amended 896 to read: 897 627.6615HandicappedChildren with disabilities; 898 continuation of coverage under group policy.— 899 (1) A group health insurance policy or health care services 900 plan contract that is delivered or issued for delivery in this 901 state and that provides that coverage of a dependent child of an 902 employee or other member of the covered group terminateswill903terminateupon attainment of the limiting age for dependent 904 children specified in the policy or contract mustshallalso 905 provide in substance that attainment of the limiting age does 906 not terminate the coverage of the child while the child 907 continues to be both: 908 (a)(1)Incapable of self-sustaining employment by reason of 909 an intellectualmental retardationor physical disability. 910handicap; and911 (b)(2)Chiefly dependent upon the employee or member for 912 support and maintenance. 913 (2) If a claim is denied under a policy or contract for the 914 stated reason that the child has attained the limiting age for 915 dependent children specified in the policy or contract, the 916 notice of denial must state that the certificateholder or 917 subscriber has the burden of establishing that the child 918 continues to meet the criteria specified in subsection 919subsections(1)and (2). 920 Section 21. Subsection (29) of section 641.31, Florida 921 Statutes, is amended to read: 922 641.31 Health maintenance contracts.— 923 (29) If a health maintenance contract provides that 924 coverage of a dependent child of the subscriber terminateswill925terminateupon attainment of the limiting age for dependent 926 children which is specified in the contract, the contract must 927 also provide in substance that attainment of the limiting age 928 does not terminate the coverage of the child while the child 929 continues to be both: 930 (a) Incapable of self-sustaining employment by reason of an 931 intellectualmental retardationor physical disability. 932handicap, and933 (b) Chiefly dependent upon the employee or member for 934 support and maintenance. 935 936 If the claim is denied under a contract for the stated reason 937 that the child has attained the limiting age for dependent 938 children specified in the contract, the notice or denial must 939 state that the subscriber has the burden of establishing that 940 the child continues to meet the criteria specified in this 941 subsectionparagraphs (a) and (b). 942 Section 22. Subsection (4) of section 650.05, Florida 943 Statutes, is amended to read: 944 650.05 Plans for coverage of employees of political 945 subdivisions.— 946 (4)(a)Notwithstanding any other provision of this chapter, 947 effective January 1, 1972, all state political subdivisions 948 receiving financial aid whichthatprovide social security 949 coverage for their employees pursuant tothe provisions ofthis 950 chapter and theprovisions of thevarious retirement systems as 951 authorized by law shall, in addition to other purposes, use 952utilizeall grants-in-aid and other revenue received from the 953 state to pay the employer’s share of social security cost. 954(b)The grants-in-aid and other revenuereferred to in955paragraph (a)specifically include, but are not limited to, 956 minimum foundation program grants to public school districts and 957 community colleges; gasoline, motor fuel, cigarette, racing, and 958 insurance premium taxes distributed to political subdivisions; 959 and amounts specifically appropriated as grants-in-aid for 960 mental health, intellectual disabilitiesmental retardation, and 961 mosquito control programs. 962 Section 23. Subsection (1) of section 765.204, Florida 963 Statutes, is amended to read: 964 765.204 Capacity of principal; procedure.— 965 (1) A principal is presumed to be capable of making health 966 care decisions for herself or himself unless she or he is 967 determined to be incapacitated. Incapacity may not be inferred 968 from the person’s voluntary or involuntary hospitalization for 969 mental illness or from her or his intellectual disabilitymental970retardation. 971 Section 24. Section 849.04, Florida Statutes, is amended to 972 read: 973 849.04 Permitting minors and persons under guardianship to 974 gamble.—Whoever beingThe proprietor, owner, or keeper of any E. 975 O., keno or pool table, or billiard table, wheel of fortune, or 976 other game of chance,kept for the purpose of betting, who 977 willfully and knowingly allows aanyminor oranyperson who is 978 mentally incompetent or under guardianship to play at such game 979 or to bet on such game of chance; or whoever aids or abets or 980 otherwise encourages such playing or betting of any money or 981 other valuable thing upon the result of such game of chance by a 982anyminor oranyperson who is mentally incompetent or under 983 guardianship, commitsshall be guilty ofa felony of the third 984 degree, punishable as provided in s. 775.082, s. 775.083, or s. 985 775.084. For the purpose of this section, the terma“person who 986 is mentally incompetentperson” means a personis onewho 987 because of mental illness, intellectual disabilitymental988retardation, senility, excessive use of drugs or alcohol, or 989 other mental incapacity is incapable ofeithermanaging his or 990 her property or caring for himself or herself or both. 991 Section 25. Section 914.16, Florida Statutes, is amended to 992 read: 993 914.16 Child abuse and sexual abuse of victims under age 16 994 or who have an intellectual disabilitypersons with mental995retardation; limits on interviews.—The chief judge of each 996 judicial circuit, after consultation with the state attorney and 997 the public defender for the judicial circuit, the appropriate 998 chief law enforcement officer, and any other person deemed 999 appropriate by the chief judge, shallprovide byorder 1000 reasonable limits on the number of interviews whichthata 1001 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s. 1002 847.0135(5) who is under 16 years of age or a victim of a 1003 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who 1004 has an intellectual disabilityis a person with mental1005retardationas defined in s. 393.063 must submit to for law 1006 enforcement or discovery purposes.The order shall,To the 1007 extent possible, the order must protect the victim from the 1008 psychological damage of repeated interrogations while preserving 1009 the rights of the public, the victim, and the person charged 1010 with the violation. 1011 Section 26. Section 914.17, Florida Statutes, is amended to 1012 read: 1013 914.17 Appointment of advocate for victims or witnesses who 1014 are minors or intellectually disabledpersons with mental1015retardation.— 1016 (1) A guardian ad litem or other advocate shall be 1017 appointed by the court to represent a minor in any criminal 1018 proceeding if the minor is a victim of or witness to child abuse 1019 or neglect,or if the minor isa victim of a sexual offense, or 1020 a witness to a sexual offense committed against another minor. 1021 The court may appoint a guardian ad litem or other advocate in 1022 any other criminal proceeding in which a minor is involved as 1023eithera victim or a witness. The guardian ad litem or other 1024 advocate shall have full access to all evidence and reports 1025 introduced during the proceedings, may interview witnesses, may 1026 make recommendations to the court, shall be noticed and have the 1027 right to appear on behalf of the minor at all proceedings, and 1028 may request additional examinations by medical doctors, 1029 psychiatrists, or psychologists.It is the duty ofThe guardian 1030 ad litem or other advocate shallto perform the following1031services: 1032 (a)ToExplain, in language understandable to the minor, 1033 all legal proceedings in which the minor isshall beinvolved; 1034 (b)ToAct, as a friend of the court, to advise the judge, 1035 whenever appropriate, of the minor’s ability to understand and 1036 cooperate with any court proceeding; and 1037 (c)ToAssist the minor and the minor’s family in coping 1038 with the emotional effects of the crime and subsequent criminal 1039 proceedings in which the minor is involved. 1040 (2) An advocate shall be appointed by the court to 1041 represent a person who has an intellectual disabilitywith1042mental retardationas defined in s. 393.063 in any criminal 1043 proceeding if the personwith mental retardationis a victim of 1044 or witness to abuse or neglect,orif the person with mental1045retardation isa victim of a sexual offense, or a witness to a 1046 sexual offense committed against a minor or person who has an 1047 intellectual disabilitywith mental retardation. The court may 1048 appoint an advocate in any other criminal proceeding in which 1049 suchapersonwith mental retardationis involved aseithera 1050 victim or a witness. The advocate shall have full access to all 1051 evidence and reports introduced during the proceedings, may 1052 interview witnesses, may make recommendations to the court, 1053 shall be noticed and have the right to appear on behalf of the 1054 personwith mental retardationat all proceedings, and may 1055 request additional examinations by medical doctors, 1056 psychiatrists, or psychologists.It is the duty ofThe advocate 1057 shallto perform the following services: 1058 (a)ToExplain, in language understandable to the person 1059with mental retardation, all legal proceedings in which the 1060 person isshall beinvolved; 1061 (b)ToAct, as a friend of the court, to advise the judge, 1062 whenever appropriate, of the person’sperson with mental1063retardation’sability to understand and cooperate with any court 1064 proceedings; and 1065 (c)ToAssist the personwith mental retardationand the 1066 person’s family in coping with the emotional effects of the 1067 crime and subsequent criminal proceedings in which the person 1068with mental retardationis involved. 1069 (3) Any person participating in a judicial proceeding as a 1070 guardian ad litem or other advocate isshall bepresumed prima 1071 facie to be acting in good faith and in so doing isshall be1072 immune from any liability, civil or criminal, whichthat1073otherwisemight be incurred or imposed. 1074 Section 27. Subsections (1), (2), and (3) of section 1075 916.105, Florida Statutes, are amended to read: 1076 916.105 Legislative intent.— 1077 (1) It is the intent of the Legislature that the Department 1078 of Children and Family Services and the Agency for Persons with 1079 Disabilities, as appropriate, establish, locate, and maintain 1080 separate and secure forensic facilities and programs for the 1081 treatment or training of defendants who have been charged with a 1082 felony and who have been found to be incompetent to proceed due 1083 to their mental illness, intellectual disabilitymental1084retardation, or autism, or who have been acquitted of a felony 1085 by reason of insanity, and who, while still under the 1086 jurisdiction of the committing court, are committed to the 1087 department or agency underthe provisions ofthis chapter. Such 1088 facilities mustshallbe sufficient to accommodate the number of 1089 defendants committed under the conditions noted above. Except 1090 for those defendants found by the department or agency to be 1091 appropriate for treatment or training in a civil facility or 1092 program pursuant to subsection (3), forensic facilities must 1093shallbe designed and administered so that ingress and egress, 1094 together with other requirements of this chapter, may be 1095 strictly controlled by staff responsible for security in order 1096 to protect the defendant, facility personnel, other clients, and 1097 citizens in adjacent communities. 1098 (2) It is the intent of the Legislature that treatment or 1099 training programs for defendants who are found to have mental 1100 illness, intellectual disabilitymental retardation, or autism 1101 and are involuntarily committed to the department or agency, and 1102 who are still under the jurisdiction of the committing court, be 1103 provided in a manner, subject to security requirements and other 1104 mandates of this chapter, which ensuresas to ensurethe rights 1105 of the defendants as provided in this chapter. 1106 (3) It is the intent of the Legislature that evaluation and 1107 services to defendants who have mental illness, intellectual 1108 disabilitymental retardation, or autism be provided in 1109 community settings, in community residential facilities, or in 1110 civil facilities, whenever this is a feasible alternative to 1111 treatment or training in a state forensic facility. 1112 Section 28. Subsections (1), (10), (11), (12), and (17) of 1113 section 916.106, Florida Statutes, are amended, and subsections 1114 (13) through (15) of that section are reordered and amended, to 1115 read: 1116 916.106 Definitions.—For the purposes of this chapter, the 1117 term: 1118 (1) “Agency” means the Agency for Persons with 1119 Disabilities. The agency is responsible for training forensic 1120 clients who are developmentally disabled due to intellectual 1121 disabilitymental retardationor autism and have been determined 1122 incompetent to proceed. 1123 (10) “Forensic facility” means a separate and secure 1124 facility established within the department or agency to serve 1125 forensic clients. A separate and secure facility means a 1126 security-grade building for the purpose of separately housing 1127 persons who have mental illness from persons who have 1128 intellectual disabilitieswith retardationor autism and 1129 separately housing persons who have been involuntarily committed 1130 pursuant to this chapter from nonforensic residents. 1131 (11) “Incompetent to proceed” means unable to proceed at 1132 any material stage of a criminal proceeding, which includes the 1133shall includetrial of the case, pretrial hearings involving 1134 questions of fact on which the defendant might be expected to 1135 testify, entry of a plea, proceedings for violation of probation 1136 or violation of community control, sentencing, and hearings on 1137 issues regarding a defendant’s failure to comply with court 1138 orders or conditions or other matters in which the mental 1139 competence of the defendant is necessary for a just resolution 1140 of the issues being considered. 1141 (12) “Institutional security personnel” means the staff of 1142 forensic facilities who meet or exceed the requirements of s. 1143 943.13 and who are responsible for providing security, 1144 protecting clients and personnel, enforcing rules, preventing 1145 and investigating unauthorized activities, and safeguarding the 1146 interests of residentscitizensin the surrounding communities. 1147 (14)(13)“Mental illness” means an impairment of the 1148 emotional processes that exercise conscious control of one’s 1149 actions, or of the ability to perceive or understand reality, 1150 which impairment substantially interferes with theadefendant’s 1151 ability to meet the ordinary demands of living. For the purposes 1152 of this chapter, the term does not apply to defendants who have 1153 only an intellectual disabilitywith only mental retardationor 1154 autism and does not include intoxication or conditions 1155 manifested only by antisocial behavior or substance abuse 1156 impairment. 1157 (15)(14)“Restraint” means a physical device, method, or 1158 drug used to control dangerous behavior. 1159 (a) A physical restraint is any manual method or physical 1160 or mechanical device, material, or equipment attached or 1161 adjacent to a person’s body so that he or she cannot easily 1162 remove the restraint and that restricts freedom of movement or 1163 normal access to one’s body. 1164 (b) A drug used as a restraint is a medication used to 1165 control the person’s behavior or to restrict his or her freedom 1166 of movement and not part of the standard treatment regimen of 1167 the person with a diagnosed mental illness who is a client of 1168 the department. Physically holding a person during a procedure 1169 to forcibly administer psychotropic medication is a physical 1170 restraint. 1171 (c) Restraint does not include physical devices, such as 1172 orthopedically prescribed appliances, surgical dressings and 1173 bandages, supportive body bands, or other physical holdingwhen1174 necessary for routine physical examinations and tests; for 1175 purposes of orthopedic, surgical, or other similar medical 1176 treatment;when usedto provide support for the achievement of 1177 functional body position or proper balance; orwhen usedto 1178 protect a person from falling out of bed. 1179 (13)(15)“Intellectual disability”“Retardation”has the 1180 same meaning as in s. 393.063. 1181 (17) “Social service professional” means a person whose 1182 minimum qualifications include a bachelor’s degree and at least 1183 2 years of social work, clinical practice, special education, 1184 habilitation, or equivalent experience working directly with 1185 persons who have intellectual disabilitieswith retardation, 1186 autism, or other developmental disabilities. 1187 Section 29. Paragraph (a) of subsection (1) and paragraph 1188 (a) of subsection (3) of section 916.107, Florida Statutes, are 1189 amended to read: 1190 916.107 Rights of forensic clients.— 1191 (1) RIGHT TO INDIVIDUAL DIGNITY.— 1192 (a) The policy of the state is that the individual dignity 1193 of the client shall be respected at all times and upon all 1194 occasions, including any occasion when the forensic client is 1195 detained, transported, or treated. Clients with mental illness, 1196 intellectual disabilityretardation, or autism and who are 1197 charged with committing felonies shall receive appropriate 1198 treatment or training. In a criminal case involving a client who 1199 has been adjudicated incompetent to proceed or not guilty by 1200 reason of insanity, a jail may be used as an emergency facility 1201 for up to 15 days following the date the department or agency 1202 receives a completed copy of the court commitment order 1203 containing all documentation required by the applicable Florida 1204 Rules of Criminal Procedure. For a forensic client who is held 1205 in a jail awaiting admission to a facility of the department or 1206 agency, evaluation and treatment or training may be provided in 1207 the jail by the local community mental health provider for 1208 mental health services, by the developmental disabilities 1209 program for persons with intellectual disabilityretardationor 1210 autism, the client’s physician or psychologist, or any other 1211 appropriate program until the client is transferred to a civil 1212 or forensic facility. 1213 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.— 1214 (a) A forensic client shall be asked to give express and 1215 informed written consent for treatment. If a client refuses such 1216 treatment as is deemed necessary and essential by the client’s 1217 multidisciplinary treatment team for the appropriate care of the 1218 client, such treatment may be provided under the following 1219 circumstances: 1220 1. In an emergency situation in which there is immediate 1221 danger to the safety of the client or others, such treatment may 1222 be provided upon the written order of a physician for a period 1223 not to exceed 48 hours, excluding weekends and legal holidays. 1224 If, after the 48-hour period, the client has not given express 1225 and informed consent to the treatment initially refused, the 1226 administrator or designee of the civil or forensic facility 1227 shall, within 48 hours, excluding weekends and legal holidays, 1228 petition the committing court or the circuit court serving the 1229 county in which the facility is located, at the option of the 1230 facility administrator or designee, for an order authorizing the 1231 continued treatment of the client. In the interim, the need for 1232 treatment shall be reviewed every 48 hours and may be continued 1233 without the consent of the client upon the continued written 1234 order of a physician who has determined that the emergency 1235 situation continues to present a danger to the safety of the 1236 client or others. 1237 2. In a situation other than an emergency situation, the 1238 administrator or designee of the facility shall petition the 1239 court for an order authorizing necessary and essential treatment 1240 for the client. The order shall allow such treatment for a 1241 period not to exceed 90 days following the date of the entry of 1242 the order. Unless the court is notified in writing that the 1243 client has provided express and informed consent in writing or 1244 that the client has been discharged by the committing court, the 1245 administrator or designee shall, beforeprior tothe expiration 1246 of the initial 90-day order, petition the court for an order 1247 authorizing the continuation of treatment for another 90-day 1248 period. This procedure shall be repeated until the client 1249 provides consent or is discharged by the committing court. 1250 3. At the hearing on the issue of whether the court should 1251 enter an order authorizing treatment for which a client was 1252 unable to or refused to give express and informed consent, the 1253 court shall determine by clear and convincing evidence that the 1254 client has mental illness, intellectual disabilityretardation, 1255 or autism, that the treatment not consented to is essential to 1256 the care of the client, and that the treatment not consented to 1257 is not experimental and does not present an unreasonable risk of 1258 serious, hazardous, or irreversible side effects. In arriving at 1259 the substitute judgment decision, the court must consider at 1260 least the following factors: 1261 a. The client’s expressed preference regarding treatment; 1262 b. The probability of adverse side effects; 1263 c. The prognosis without treatment; and 1264 d. The prognosis with treatment. 1265 1266 The hearing shall be as convenient to the client as may be 1267 consistent with orderly procedure and shall be conducted in 1268 physical settings not likely to be injurious to the client’s 1269 condition. The court may appoint a general or special magistrate 1270 to preside at the hearing. The client or the client’s guardian, 1271 and the representative, shall be provided with a copy of the 1272 petition and the date, time, and location of the hearing. The 1273 client has the right to have an attorney represent him or her at 1274 the hearing, and, if the client is indigent, the court shall 1275 appoint the office of the public defender to represent the 1276 client at the hearing. The client may testify or not, as he or 1277 she chooses, and has the right to cross-examine witnesses and 1278 may present his or her own witnesses. 1279 Section 30. The Division of Statutory Revision is requested 1280 to rename part III of chapter 916, Florida Statutes, consisting 1281 of ss. 916.301-916.304, as “Forensic Services for Persons who 1282 are Intellectually Disabled or Autistic.” 1283 Section 31. Subsections (1) and (2) of section 916.301, 1284 Florida Statutes, are amended to read: 1285 916.301 Appointment of experts.— 1286 (1) All evaluations ordered by the court under this part 1287 must be conducted by qualified experts who have expertise in 1288 evaluating persons who have an intellectual disabilitywith1289retardationor autism. The agency shall maintain and provide the 1290 courts annually with a list of availableretardation and autism1291 professionals who are appropriately licensed and qualified to 1292 perform evaluations of defendants alleged to be incompetent to 1293 proceed due to intellectual disabilityretardationor autism. 1294 The courts may use professionals from this list when appointing 1295 experts and ordering evaluations under this part. 1296 (2) If a defendant’s suspected mental condition is 1297 intellectual disabilityretardationor autism, the court shall 1298 appoint the following: 1299 (a) At least one, or at the request of any party, two 1300 experts to evaluate whether the defendant meets the definition 1301 of intellectual disabilityretardationor autism and, if so, 1302 whether the defendant is competent to proceed; and 1303 (b) A psychologist selected by the agency who is licensed 1304 or authorized by law to practice in this state, with experience 1305 in evaluating persons suspected of having an intellectual 1306 disabilityretardationor autism, and a social service 1307 professional, with experience in working with persons who have 1308 an intellectual disabilitywith retardationor autism. 1309 1. The psychologist shall evaluate whether the defendant 1310 meets the definition of intellectual disabilityretardationor 1311 autism and, if so, whether the defendant is incompetent to 1312 proceed due to intellectual disabilityretardationor autism. 1313 2. The social service professional shall provide a social 1314 and developmental history of the defendant. 1315 Section 32. Subsections (1), (2), and (4) of section 1316 916.3012, Florida Statutes, are amended to read: 1317 916.3012 Mental competence to proceed.— 1318 (1) A defendant whose suspected mental condition is 1319 intellectual disabilityretardationor autism is incompetent to 1320 proceed within the meaning of this chapter if the defendant does 1321 not have sufficient present ability to consult with the 1322 defendant’s lawyer with a reasonable degree of rational 1323 understanding or if the defendant has no rational, as well as 1324 factual, understanding of the proceedings against the defendant. 1325 (2) Experts in intellectual disabilityretardationor 1326 autism appointed pursuant to s. 916.301 shall first consider 1327 whether the defendant meets the definition of intellectual 1328 disabilityretardationor autism and, if so, consider the 1329 factors related to the issue of whether the defendant meets the 1330 criteria for competence to proceed as described in subsection 1331 (1). 1332 (4) If the expertsshouldfind that the defendant is 1333 incompetent to proceed, the experts shall report on any 1334 recommended training for the defendant to attain competence to 1335 proceed. In considering the issues relating to training, the 1336 examining experts shall specifically report on: 1337 (a) The intellectual disabilityretardationor autism 1338 causing the incompetence; 1339 (b) The training appropriate for the intellectual 1340 disabilityretardationor autism of the defendant and an 1341 explanation of each of the possible training alternatives in 1342 order of choices; 1343 (c) The availability of acceptable training and, if 1344 training is available in the community, the expert shall so 1345 state in the report; and 1346 (d) The likelihood of the defendant’s attaining competence 1347 under the training recommended, an assessment of the probable 1348 duration of the training required to restore competence, and the 1349 probability that the defendant will attain competence to proceed 1350 in the foreseeable future. 1351 Section 33. Subsection (1), paragraphs (a) and (b) of 1352 subsection (2), and paragraph (a) of subsection (3) of section 1353 916.302, Florida Statutes, are amended to read: 1354 916.302 Involuntary commitment of defendant determined to 1355 be incompetent to proceed.— 1356 (1) CRITERIA.—Every defendant who is charged with a felony 1357 and who is adjudicated incompetent to proceed due to 1358 intellectual disabilityretardationor autism may be 1359 involuntarily committed for training upon a finding by the court 1360 of clear and convincing evidence that: 1361 (a) The defendant has an intellectual disability 1362retardationor autism; 1363 (b) There is a substantial likelihood that in the near 1364 future the defendant will inflict serious bodily harm on himself 1365 or herself or another person, as evidenced by recent behavior 1366 causing, attempting, or threatening such harm; 1367 (c) All available, less restrictive alternatives, including 1368 services provided in community residential facilities or other 1369 community settings, which would offer an opportunity for 1370 improvement of the condition have been judged to be 1371 inappropriate; and 1372 (d) There is a substantial probability that the 1373 intellectual disabilityretardationor autism causing the 1374 defendant’s incompetence will respond to training and the 1375 defendant will regain competency to proceed in the reasonably 1376 foreseeable future. 1377 (2) ADMISSION TO A FACILITY.— 1378 (a) A defendant who has been charged with a felony and who 1379 is found to be incompetent to proceed due to intellectual 1380 disabilityretardationor autism, and who meets the criteria for 1381 involuntary commitment to the agency underthe provisions of1382 this chapter, shall be committed to the agency, and the agency 1383 shall retain and provide appropriate training for the defendant. 1384 WithinNo later than6 months after the date of admission or at 1385 the end of any period of extended commitment or at any time the 1386 administrator or designee determinesshall have determinedthat 1387 the defendant has regained competency to proceed or no longer 1388 meets the criteria for continued commitment, the administrator 1389 or designee shall file a report with the court pursuant to this 1390 chapter and the applicable Florida Rules of Criminal Procedure. 1391 (b) A defendant determined to be incompetent to proceed due 1392 to intellectual disabilityretardationor autism may be ordered 1393 by a circuit court into a forensic facility designated by the 1394 agency for defendants who have an intellectual disabilitymental1395retardationor autism. 1396 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.— 1397 (a) If a defendant has both an intellectual disability 1398mental retardationor autism andhasa mental illness, 1399 evaluations must address which condition is primarily affecting 1400 the defendant’s competency to proceed. Referral of the defendant 1401 should be made to a civil or forensic facility most appropriate 1402 to address the symptoms that are the cause of the defendant’s 1403 incompetence. 1404 Section 34. Subsection (1) of section 916.3025, Florida 1405 Statutes, is amended to read: 1406 916.3025 Jurisdiction of committing court.— 1407 (1) The committing court shall retain jurisdiction in the 1408 case of any defendant found to be incompetent to proceed due to 1409 intellectual disabilityretardationor autism and ordered into a 1410 forensic facility designated by the agency for defendants who 1411 have intellectual disabilitiesmental retardationor autism. A 1412 defendant may not be released except by the order of the 1413 committing court. An administrative hearing examiner does not 1414 have jurisdiction to determine issues of continuing commitment 1415 or release of any defendant involuntarily committed pursuant to 1416 this chapter. 1417 Section 35. Section 916.303, Florida Statutes, is amended 1418 to read: 1419 916.303 Determination of incompetencydue to retardation or1420autism; dismissal of charges.— 1421 (1) The charges against any defendant found to be 1422 incompetent to proceed due to intellectual disability 1423retardationor autism shall be dismissed without prejudice to 1424 the state if the defendant remains incompetent to proceed within 1425 a reasonable time after such determination, not to exceed 2 1426 years, unless the court in its order specifies its reasons for 1427 believing that the defendant will become competent to proceed 1428 within the foreseeable future and specifies the time within 1429 which the defendant is expected to become competent to proceed. 1430 The charges may be refiled by the state if the defendant is 1431 declared competent to proceed in the future. 1432 (2) If the charges are dismissed and if the defendant is 1433 considered to lack sufficient capacity to give express and 1434 informed consent to a voluntary application for services and 1435 lacks the basic survival and self-care skills to provide for his 1436 or her well-being or is likely to physically injure himself or 1437 herself or others if allowed to remain at liberty, the agency, 1438 the state attorney, or the defendant’s attorney shall apply to 1439 the committing court to involuntarily admit the defendant to 1440 residential services pursuant to s. 393.11. 1441 (3) If the defendant is considered to need involuntary 1442 residential services for reasons described in subsection (2) 1443 and, further, there is a substantial likelihood that the 1444 defendant will injure another person or continues to present a 1445 danger of escape, and all available less restrictive 1446 alternatives, including services in community residential 1447 facilities or other community settings, which would offer an 1448 opportunity for improvement of the condition have been judged to 1449 be inappropriate, the agency, the state attorney, or the 1450 defendant’s counsel may request the committing court to continue 1451 the defendant’s placement in a secure facility pursuant to this 1452 part. Any placement so continuedunder this subsectionmust be 1453 reviewed by the court at least annually at a hearing. The annual 1454 review and hearing mustshalldetermine whether the defendant 1455 continues to meet the criteria described in this subsection and, 1456 if so, whether the defendant still requires involuntary 1457 placement in a secure facility and whether the defendant is 1458 receiving adequate care, treatment, habilitation, and 1459 rehabilitation, including psychotropic medication and behavioral 1460 programming. Notice of the annual review and review hearing 1461 shall be given to the state attorney and the defendant’s 1462 attorney.In no instance mayA defendant’s placement in a secure 1463 facility may not exceed the maximum sentence for the crime for 1464 which the defendant was charged. 1465 Section 36. Subsection (1) of section 916.304, Florida 1466 Statutes, is amended to read: 1467 916.304 Conditional release.— 1468 (1) Except for an inmate currently serving a prison 1469 sentence, the committing court may order a conditional release 1470 of any defendant who has been found to be incompetent to proceed 1471 due to intellectual disabilityretardationor autism, based on 1472 an approved plan for providing community-based training. The 1473 committing criminal court may order a conditional release of any 1474 defendant to a civil facility in lieu of an involuntary 1475 commitment to a forensic facility pursuant to s. 916.302. Upon a 1476 recommendation that community-based training for the defendant 1477 is appropriate, a written plan for community-based training, 1478 including recommendations from qualified professionals, may be 1479 filed with the court, with copies to all parties. Such a plan 1480 may also be submitted by the defendant and filed with the court, 1481 with copies to all parties. The plan must include: 1482 (a) Special provisions for residential care and adequate 1483 supervision of the defendant, including recommended location of 1484 placement. 1485 (b) Recommendations for auxiliary services such as 1486 vocational training, psychological training, educational 1487 services, leisure services, and special medical care. 1488 1489 In its order of conditional release, the court shall specify the 1490 conditions of release based upon the release plan and shall 1491 direct the appropriate agencies or persons to submit periodic 1492 reports to the courts regarding the defendant’s compliance with 1493 the conditions of the release and progress in training, with 1494 copies to all parties. 1495 Section 37. Section 918.16, Florida Statutes, is amended to 1496 read: 1497 918.16 Sex offenses; testimony of person under age 16 or 1498 who has an intellectual disabilityperson with mental1499retardation; testimony of victim; courtroom cleared; 1500 exceptions.— 1501 (1) Except as provided in subsection (2), in the trial of 1502 any case, civil or criminal, ifwhenany person under the age of 1503 16 or any person with an intellectual disabilitymental1504retardationas defined in s. 393.063 is testifying concerning 1505 any sex offense, the court shall clear the courtroom of all 1506 persons except parties to the cause and their immediate families 1507 or guardians, attorneys and their secretaries, officers of the 1508 court, jurors, newspaper reporters or broadcasters, court 1509 reporters, and, at the request of the victim, victim or witness 1510 advocates designated by the state attorney’s office. 1511 (2) IfWhenthe victim of a sex offense is testifying 1512 concerning that offense in any civil or criminal trial, the 1513 court shall clear the courtroom of all persons upon the request 1514 of the victim, regardless of the victim’s age or mental 1515 capacity, except that parties to the cause and their immediate 1516 families or guardians, attorneys and their secretaries, officers 1517 of the court, jurors, newspaper reporters or broadcasters, court 1518 reporters, and, at the request of the victim, victim or witness 1519 advocates designated by the state attorney may remain in the 1520 courtroom. 1521 Section 38. Section 921.137, Florida Statutes, is amended 1522 to read: 1523 921.137 Imposition of the death sentence upon an 1524 intellectually disabledadefendantwithmental retardation1525 prohibited.— 1526 (1) As used in this section, the term “intellectually 1527 disabled” or “intellectual disability”“mental retardation”1528 means significantly subaverage general intellectual functioning 1529 existing concurrently with deficits in adaptive behavior and 1530 manifested during the period from conception to age 18. The term 1531 “significantly subaverage general intellectual functioning,” for 1532 the purpose of this section, means performance that is two or 1533 more standard deviations from the mean score on a standardized 1534 intelligence test specified in the rules of the Agency for 1535 Persons with Disabilities. The term “adaptive behavior,” for the 1536 purpose of this definition, means the effectiveness or degree 1537 with which an individual meets the standards of personal 1538 independence and social responsibility expected of his or her 1539 age, cultural group, and community. The Agency for Persons with 1540 Disabilities shall adopt rules to specify the standardized 1541 intelligence tests as provided in this subsection. 1542 (2) A sentence of death may not be imposed upon a defendant 1543 convicted of a capital felony if it is determined in accordance 1544 with this section that the defendant is intellectually disabled 1545has mental retardation. 1546 (3) A defendant charged with a capital felony who intends 1547 to raise intellectual disabilitymental retardationas a bar to 1548 the death sentence must give notice of such intention in 1549 accordance with the rules of court governing notices of intent 1550 to offer expert testimony regarding mental health mitigation 1551 during the penalty phase of a capital trial. 1552 (4) After a defendant who has given notice of his or her 1553 intention to raise intellectual disabilitymental retardationas 1554 a bar to the death sentence is convicted of a capital felony and 1555 an advisory jury has returned a recommended sentence of death, 1556 the defendant may file a motion to determine whether the 1557 defendant is intellectually disabledhas mental retardation. 1558 Upon receipt of the motion, the court shall appoint two experts 1559 in the field of intellectual disabilitiesmental retardationwho 1560 shall evaluate the defendant and report their findings to the 1561 court and all interested parties prior to the final sentencing 1562 hearing. Notwithstanding s. 921.141 or s. 921.142, the final 1563 sentencing hearing shall be held without a jury. At the final 1564 sentencing hearing, the court shall consider the findings of the 1565 court-appointed experts and consider the findings of any other 1566 expert which is offered by the state or the defense on the issue 1567 of whether the defendant has an intellectual disabilitymental1568retardation. If the court finds, by clear and convincing 1569 evidence, that the defendant has an intellectual disability 1570mental retardationas defined in subsection (1), the court may 1571 not impose a sentence of death and shall enter a written order 1572 that sets forth with specificity the findings in support of the 1573 determination. 1574 (5) If a defendant waives his or her right to a recommended 1575 sentence by an advisory jury following a plea of guilt or nolo 1576 contendere to a capital felony and adjudication of guilt by the 1577 court, or following a jury finding of guilt of a capital felony, 1578 upon acceptance of the waiver by the court, a defendant who has 1579 given notice as required in subsection (3) may file a motion for 1580 a determination of intellectual disabilitymental retardation. 1581 Upon granting the motion, the court shall proceed as provided in 1582 subsection (4). 1583 (6) If, following a recommendation by an advisory jury that 1584 the defendant be sentenced to life imprisonment, the state 1585 intends to request the court to order that the defendant be 1586 sentenced to death, the state must inform the defendant of such 1587 request if the defendant has notified the court of his or her 1588 intent to raise intellectual disabilitymental retardationas a 1589 bar to the death sentence. After receipt of the notice from the 1590 state, the defendant may file a motion requesting a 1591 determination by the court of whether the defendant is 1592 intellectually disabledhas mental retardation. Upon granting 1593 the motion, the court shall proceed as provided in subsection 1594 (4). 1595 (7) Pursuant to s. 924.07, the state may appeal,pursuant1596to s.924.07,a determination of intellectual disabilitymental1597retardationmade under subsection (4). 1598 (8) This section does not apply to a defendant who was 1599 sentenced to death before June 12, 2001prior to the effective1600date of this act. 1601 (9) For purposes of the application of the criminal laws 1602 and procedural rules of this state to any matters relating to 1603 the imposition and execution of the death penalty, the terms 1604 “intellectual disability” or “intellectually disabled” are 1605 interchangeable with and have the same meaning as the terms 1606 “mental retardation” or “retardation” and “mentally retarded” as 1607 those terms were defined before July 1, 2012. 1608 Section 39. Paragraph (b) of subsection (2) of section 1609 941.38, Florida Statutes, is amended to read: 1610 941.38 Extradition of persons alleged to be of unsound 1611 mind.— 1612 (2) For the purpose of this section: 1613 (b) A “mentally incompetent person” is one who because of 1614 mental illness, intellectual disabilitymental retardation, 1615 senility, excessive use of drugs or alcohol, or other mental 1616 incapacity is incapable ofeithermanaging his or her property 1617 or caring for himself or herself or both. 1618 Section 40. Section 944.602, Florida Statutes, is amended 1619 to read: 1620 944.602 Agency notification before release of 1621 intellectually disabledmentally retardedinmates.—Before the 1622 release by parole, release by reason of gain-time allowances 1623 provided for in s. 944.291, or expiration of sentence of any 1624 inmate who has been diagnosed as having an intellectual 1625 disabilitymentally retardedas defined in s. 393.063, the 1626 Department of Corrections shall notify the Agency for Persons 1627 with Disabilities in order that sufficient time be allowed to 1628 notify the inmate or the inmate’s representative, in writing, at 1629 least 7 days beforeprior tothe inmate’s release, of available 1630 community services. 1631 Section 41. Subsection (2) of section 945.025, Florida 1632 Statutes, is amended to read: 1633 945.025 Jurisdiction of department.— 1634 (2) In establishing, operating, and usingutilizingthese 1635 facilities, the department shall attempt, whenever possible, to 1636 avoid the placement of nondangerous offenders who have potential 1637 for rehabilitation with repeat offenders or dangerous offenders. 1638 Medical, mental, and psychological problems mustshallbe 1639 diagnosed and treated whenever possible. The Department of 1640 Children and Family Services and the Agency for Persons with 1641 Disabilities shall cooperate to ensure the delivery of services 1642 to persons under the custody or supervision of the department. 1643 IfWhen it is the intent ofthe department intends to transfer a 1644mentally ill or retardedprisoner who has a mental illness or 1645 intellectual disability to the Department of Children and Family 1646 Services or the Agency for Persons with Disabilities, an 1647 involuntary commitment hearing shall be held in accordance with 1648according to the provisions ofchapter 393 or chapter 394. 1649 Section 42. Subsection (5) of section 945.12, Florida 1650 Statutes, is amended to read: 1651 945.12 Transfers for rehabilitative treatment.— 1652 (5) When the department plans to release an offender who is 1653amentally ill or intellectually disabledretardedoffender, an 1654 involuntary commitment hearing shall be held as soon as possible 1655 beforeprior tohis or her release in accordance with, according1656to the provisions ofchapter 393 or chapter 394. 1657 Section 43. Subsection (9) of section 945.42, Florida 1658 Statutes, is amended to read: 1659 945.42 Definitions; ss. 945.40-945.49.—As used in ss. 1660 945.40-945.49, the following terms shall have the meanings 1661 ascribed to them, unless the context shall clearly indicate 1662 otherwise: 1663 (9) “Mentally ill” means an impairment of the mental or 1664 emotional processes that, of the ability toexercise conscious 1665 control of one’s actions,or of the ability to perceive or 1666 understand reality, which impairment substantially interferes 1667 with theaperson’s ability to meet the ordinary demands of 1668 living. However,regardless of etiology, except that,for the 1669 purposes of transferringtransfer ofan inmate to a mental 1670 health treatment facility, the term does not include a 1671retardation ordevelopmental disability as defined in s. 393.063 1672chapter 393, simple intoxication, or conditions manifested only 1673 by antisocial behavior or substance abuse addiction. However, an 1674 individual who ismentally retarded ordevelopmentally disabled 1675 may also have a mental illness. 1676 Section 44. Section 947.185, Florida Statutes, is amended 1677 to read: 1678 947.185 Application for intellectual disabilitymental1679retardationservices as condition of parole.—The Parole 1680 Commission may require as a condition of parole that any inmate 1681 who has been diagnosed as having an intellectual disability 1682mentally retardedas defined in s. 393.063 shall, upon release, 1683 apply for services from the Agency for Persons with 1684 Disabilities. 1685 Section 45. Subsection (4) of section 984.19, Florida 1686 Statutes, is amended to read: 1687 984.19 Medical screening and treatment of child; 1688 examination of parent, guardian, or person requesting custody.— 1689 (4) A judge may order that a child alleged to be or 1690 adjudicated a child in need of services be treated by a licensed 1691 health care professional. The judge may also order such child to 1692 receive mental health or intellectual disabilityretardation1693 services from a psychiatrist, psychologist, or other appropriate 1694 service provider. If it is necessary to place the child in a 1695 residential facility for such services,thenthe procedures and 1696 criteria established in s. 394.467 or chapter 393 shall be used, 1697 aswhichever isapplicable. A child may be providedmental1698health or retardationservices in emergency situations,pursuant 1699 to the procedures and criteria contained in s. 394.463(1) or 1700 chapter 393, aswhichever isapplicable. 1701 Section 46. Paragraph (a) of subsection (3) of section 1702 985.14, Florida Statutes, is amended to read: 1703 985.14 Intake and case management system.— 1704 (3) The intake and case management system shall facilitate 1705 consistency in the recommended placement of each child, and in 1706 the assessment, classification, and placement process, with the 1707 following purposes: 1708 (a) An individualized, multidisciplinary assessment process 1709 that identifies the priority needs of eachindividualchild for 1710 rehabilitation and treatment and identifies any needs of the 1711 child’s parents or guardians for services that would enhance 1712 their ability to provide adequate support, guidance, and 1713 supervision for the child. This process beginsshall beginwith 1714 the detention risk assessment instrument and decision, includes 1715shall includethe intake preliminary screening and comprehensive 1716 assessment for substance abuse treatment services, mental health 1717 services, intellectual disabilityretardationservices, literacy 1718 services, and other educational and treatment services as 1719 components, additional assessment of the child’s treatment 1720 needs, and classification regarding the child’s risks to the 1721 community and, for a serious or habitual delinquent child, 1722 includesshall include theassessment for placement in a serious 1723 or habitual delinquent children program under s. 985.47. The 1724 completed multidisciplinary assessment process mustshallresult 1725 in the predisposition report. 1726 Section 47. Paragraph (g) of subsection (1) and subsection 1727 (5) of section 985.145, Florida Statutes, are amended to read: 1728 985.145 Responsibilities of juvenile probation officer 1729 during intake; screenings and assessments.— 1730 (1) The juvenile probation officer shall serve as the 1731 primary case manager for the purpose of managing, coordinating, 1732 and monitoring the services provided to the child. Each program 1733 administrator within the Department of Children and Family 1734 Services shall cooperate with the primary case manager in 1735 carrying out the duties and responsibilities described in this 1736 section. In addition to duties specified in other sections and 1737 through departmental rules, the assigned juvenile probation 1738 officer shall be responsible for the following: 1739 (g) Comprehensive assessment.—The juvenile probation 1740 officer, pursuant to uniform procedures established by the 1741 department and upon determining that the report, affidavit, or 1742 complaint is complete, shall: 1743 1. Perform the preliminary screening and make referrals for 1744 a comprehensive assessment regarding the child’s need for 1745 substance abuse treatment services, mental health services, 1746 intellectual disabilityretardationservices, literacy services, 1747 or other educational or treatment services. 1748 2. IfWhenindicated by the preliminary screening, provide 1749 for a comprehensive assessment of the child and family for 1750 substance abuse problems, using community-based licensed 1751 programs with clinical expertise and experience in the 1752 assessment of substance abuse problems. 1753 3. IfWhenindicated by the preliminary screening, provide 1754 for a comprehensive assessment of the child and family for 1755 mental health problems, using community-based psychologists, 1756 psychiatrists, or other licensed mental health professionals who 1757 have clinical expertise and experience in the assessment of 1758 mental health problems. 1759 (5) If the screening and assessment indicate that the 1760 interests of the child and the public will be best served 1761thereby, the juvenile probation officer, with the approval of 1762 the state attorney, may refer the child for care, diagnostic, 1763 and evaluation services; substance abuse treatment services; 1764 mental health services; intellectual disabilityretardation1765 services; a diversionary, arbitration, or mediation program; 1766 community service work; or other programs or treatment services 1767 voluntarily accepted by the child and the child’s parents or 1768 legal guardian. IfWhenevera child volunteers to participate in 1769 any work program under this chapter or volunteers to work in a 1770 specified state, county, municipal, or community service 1771 organization supervised work program or to work for the victim, 1772 the child isshall beconsidered an employee of the state for 1773 the purposes of liability. In determining the child’s average 1774 weekly wage, unless otherwise determined by a specific funding 1775 program, all remuneration received from the employer is 1776 considered a gratuity, and the child is not entitled to any 1777 benefits otherwise payable under s. 440.15,regardless of 1778 whether the child may be receiving wages and remuneration from 1779 other employment with another employer and regardless of the 1780 child’s future wage-earning capacity. 1781 Section 48. Subsections (2) and (6) of section 985.18, 1782 Florida Statutes, are amended to read: 1783 985.18 Medical, psychiatric, psychological, substance 1784 abuse, and educational examination and treatment.— 1785 (2) IfWhenevera child has been found to have committed a 1786 delinquent act, or before such finding with the consent of any 1787 parent or legal custodian of the child, the court may order the 1788 child to be treated by a physician. The court may also order the 1789 child to receive mental health, substance abuse, or intellectual 1790 disabilityretardationservices from a psychiatrist, 1791 psychologist, or other appropriate service provider. If it is 1792 necessary to place the child in a residential facility for such 1793 services, the procedures and criteria established in chapter 1794 393, chapter 394, or chapter 397, aswhichever isapplicable, 1795 mustshallbe used. After a child has been adjudicated 1796 delinquent, if an educational needs assessment by the district 1797 school board or the Department of Children and Family Services 1798 has beenpreviouslyconducted, the court shall order the report 1799of such needs assessmentincluded in the child’s court record in 1800 lieu of a new assessment. For purposes of this section, an 1801 educational needs assessment includes, but is not limited to, 1802 reports of intelligence and achievement tests, screening for 1803 learning and other disabilitiesand other handicaps, and 1804 screening for the need for alternative education. 1805 (6) A physician mustshallbe immediately notified by the 1806 person taking the child into custody or the person having 1807 custody if there are indications of physical injury or illness, 1808 or the child shall be taken to the nearest available hospital 1809 for emergency care. A child may be provided mental health, 1810 substance abuse, or intellectual disabilityretardation1811 services,in emergency situations,pursuant to chapter 393, 1812 chapter 394, or chapter 397, aswhichever isapplicable. After a 1813 hearing, the court may order the custodial parent or parents, 1814 guardian, or other custodian, if found able to do so, to 1815 reimburse the county or state for the expense involved in such 1816 emergency treatment or care. 1817 Section 49. Paragraph (e) of subsection (1), subsections 1818 (2) through (4), and paragraph (a) of subsection (6) of section 1819 985.19, Florida Statutes, are amended to read: 1820 985.19 Incompetency in juvenile delinquency cases.— 1821 (1) If, at any time prior to or during a delinquency case, 1822 the court has reason to believe that the child named in the 1823 petition may be incompetent to proceed with the hearing, the 1824 court on its own motion may, or on the motion of the child’s 1825 attorney or state attorney must, stay all proceedings and order 1826 an evaluation of the child’s mental condition. 1827 (e) For incompetency evaluations related to intellectual 1828 disabilitymental retardationor autism, the court shall order 1829 the Agency for Persons with Disabilities to examine the child to 1830 determine if the child meets the definition of “intellectual 1831 disability”“retardation”or “autism” in s. 393.063 and, if so, 1832 whether the child is competent to proceed with delinquency 1833 proceedings. 1834 (2) A child who is adjudicated incompetent to proceed, and 1835 who has committed a delinquent act or violation of law, either 1836 of which would be a felony if committed by an adult, must be 1837 committed to the Department of Children and Family Services for 1838 treatment or training. A child who has been adjudicated 1839 incompetent to proceed because of age or immaturity, or for any 1840 reason other than for mental illness, intellectual disability, 1841or retardationor autism, must not be committed to the 1842 department or to the Department of Children and Family Services 1843 for restoration-of-competency treatment or training services. 1844 For purposes of this section, a child who has committed a 1845 delinquent act or violation of law, either of which would be a 1846 misdemeanor if committed by an adult, may not be committed to 1847 the department or to the Department of Children and Family 1848 Services for restoration-of-competency treatment or training 1849 services. 1850 (3) If the court finds that a child has mental illness, 1851 intellectual disabilitymental retardation, or autism and 1852 adjudicates the child incompetent to proceed, the court must 1853 also determine whether the child meets the criteria for secure 1854 placement. A child may be placed in a secure facility or program 1855 if the court makes a finding by clear and convincing evidence 1856 that: 1857 (a) The child has mental illness, intellectual disability 1858mental retardation, or autism and because of the mental illness, 1859 intellectual disabilitymental retardation, or autism: 1860 1. The child is manifestly incapable of surviving with the 1861 help of willing and responsible family or friends, including 1862 available alternative services, and without treatment or 1863 training the child is likely toeithersuffer from neglect or 1864 refuse to care for self, and such neglect or refusal poses a 1865 real and present threat of substantial harm to the child’s well 1866 being; or 1867 2. There is a substantial likelihood that in the near 1868 future the child will inflict serious bodily harm on self or 1869 others, as evidenced by recent behavior causing, attempting, or 1870 threatening such harm; and 1871 (b) All available less restrictive alternatives, including 1872 treatment or training in community residential facilities or 1873 community settings which would offer an opportunity for 1874 improvement of the child’s condition, are inappropriate. 1875 (4) A child who is determined to have mental illness, 1876 intellectual disabilitymental retardation, or autism, who has 1877 been adjudicated incompetent to proceed, and who meets the 1878 criteria set forth in subsection (3), must be committed to the 1879 Department of Children and Family Services and receive treatment 1880 or training in a secure facility or program that is the least 1881 restrictive alternative consistent with public safety. Any 1882 placement of a child to a secure residential program must be 1883 separate from adult forensic programs. If the child attains 1884 competency,thencustody, case management, and supervision of 1885 the child shallwillbe transferred to the department in order 1886 to continue delinquency proceedings; however, the court retains 1887 authority to order the Department of Children and Family 1888 Services to provide continued treatment or training to maintain 1889 competency. 1890 (a) A child adjudicated incompetent due to intellectual 1891 disabilitymental retardationor autism may be ordered into a 1892 secure program or facility designated by the Department of 1893 Children and Family Services for children who have intellectual 1894 disabilitieswith mental retardationor autism. 1895 (b) A child adjudicated incompetent due to mental illness 1896 may be ordered into a secure program or facility designated by 1897 the Department of Children and Family Services for children 1898 having mental illnesses. 1899 (c) IfWhenevera child is placed in a secure residential 1900 facility, the department shallwillprovide transportation to 1901 the secure residential facility for admission and from the 1902 secure residential facility upon discharge. 1903 (d) The purpose of the treatment or training is the 1904 restoration of the child’s competency to proceed. 1905 (e) The service provider must file a written report with 1906 the court pursuant to the applicable Florida Rules of Juvenile 1907 Procedure withinnot later than6 months after the date of 1908 commitment, or at the end of any period of extended treatment or 1909 training, and at any time the Department of Children and Family 1910 Services, through its service provider, determines the child has 1911 attained competency or no longer meets the criteria for secure 1912 placement, or at such shorter intervals as ordered by the court. 1913 A copy of a written report evaluating the child’s competency 1914 must be filed by the provider with the court and with the state 1915 attorney, the child’s attorney, the department, and the 1916 Department of Children and Family Services. 1917 (6)(a) If a child is determined to have mental illness, 1918 intellectual disabilitymental retardation, or autism and is 1919 found to be incompetent to proceed but does not meet the 1920 criteria set forth in subsection (3), the court shall commit the 1921 child to the Department of Children and Family Services and 1922shallorder the Department of Children and Family Services to 1923 provide appropriate treatment and training in the community. The 1924 purpose of the treatment or training is the restoration of the 1925 child’s competency to proceed. 1926 Section 50. Section 985.195, Florida Statutes, is amended 1927 to read: 1928 985.195 Transfer to other treatment services.—Any child 1929 committed to the department may be transferred to intellectual 1930 disabilityretardation, mental health, or substance abuse 1931 treatment facilities for diagnosis and evaluation pursuant to 1932 chapter 393, chapter 394, or chapter 397, aswhichever is1933 applicable, for up toa period not to exceed90 days. 1934 Section 51. Paragraph (b) of subsection (1) of section 1935 985.61, Florida Statutes, is amended to read: 1936 985.61 Early delinquency intervention program; criteria.— 1937 (1) The Department of Juvenile Justice shall, contingent 1938 upon specific appropriation and with the cooperation of local 1939 law enforcement agencies, the judiciary, district school board 1940 personnel, the office of the state attorney, the office of the 1941 public defender, the Department of Children and Family Services, 1942 and community service agencies that work with children, 1943 establish an early delinquency intervention program, the 1944 components of which shall include, but not be limited to: 1945 (b) Treatment modalities, including substance abuse 1946 treatment services, mental health services, andretardation1947 services for intellectual disabilities. 1948 Section 52. It is the intent of the Legislature that this 1949 act not expand or contract the scope or application of any 1950 provision of the Florida Statutes. This act may not be construed 1951 to change the application of any provision of Florida Statutes 1952 to any person. 1953 Section 53. This act shall take effect July 1, 2012.