Bill Text: FL S1104 | 2011 | Regular Session | Introduced
Bill Title: Intellectual Disabilities
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-05-07 - Indefinitely postponed and withdrawn from consideration [S1104 Detail]
Download: Florida-2011-S1104-Introduced.html
Florida Senate - 2011 SB 1104
By Senator Altman
24-00645-11 20111104__
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 a with
56 mental illness or with a developmental disability must be
57 informed by the court of the availability of advocacy services
58 through the department, the Arc of Florida Association for
59 Retarded 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 disability mental
67 retardation, 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, or of the estate of a
77 decedent, an infant, a mental incompetent, or insolvent may have
78 a declaration of rights or equitable or legal relations to in
79 respect thereto:
80 (1) To Ascertain any class of creditors, devisees,
81 legatees, heirs, next of kin, or others; or
82 (2) To Direct the executor, administrator, or trustee to
83 refrain from doing any particular act in his or her fiduciary
84 capacity; or
85 (3) To Determine any question relating to arising in the
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 disability mental
91 retardation, senility, excessive use of drugs or alcohol, or
92 other mental incapacity, is incapable of either managing 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 of testimony of a victim or witness under
97 age 16 or who has an intellectual disability person with mental
98 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 disability is
102 a person with mental retardation as 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 witness the child or
105 person with mental retardation is required to testify in open
106 court, or that such victim or witness is otherwise unavailable
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 used utilized at 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 unless the following
121 conditions are met:
122 (a) The child or the person who has the intellectual
123 disability with mental retardation is 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 must shall be
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 disability with mental retardation by means of a
136 two-way mirror or another similar method that ensures will
137 ensure that the defendant can observe and hear the testimony of
138 the victim or witness in person, but that the 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 disability with mental
146 retardation and in interpreting the answers of the child or
147 person with mental retardation throughout proceedings conducted
148 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 is shall be
153 admissible as evidence in the trial of the cause; however, such
154 testimony is shall not be admissible 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 witness victims or witnesses under the age
163 of 16 or who has an intellectual disability persons with mental
164 retardation.—
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 disability the
168 child or person with mental retardation will suffer at least
169 moderate emotional or mental harm due to the presence of the
170 defendant if such victim or witness the child or person with
171 mental retardation is required to testify in open court, or that
172 such victim or witness is unavailable as defined in s.
173 90.804(1), the trial court may order that the testimony of the a
174 child under the age of 16 or person with mental retardation who
175 is a victim 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 disability with mental
187 retardation and 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’s child’s or person’s
190 with mental retardation testimony 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 witness child or person with mental retardation, but must shall
195 ensure that the victim or witness child or person with mental
196 retardation cannot 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 shall be provided by any appropriate
201 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 a victim or
207 witness under the age of 16 or who has an intellectual
208 disability person with mental retardation; special protections.—
209 (1) Upon motion of any party, upon motion of a parent,
210 guardian, attorney, or guardian ad litem for a victim or witness
211 child under the age of 16 or who has an intellectual disability
212 person with mental retardation, or upon its own motion, the
213 court may enter any order necessary to protect such a child
214 under the age of 16 or person with mental retardation who is a
215 victim or witness in any judicial proceeding or other official
216 proceeding from severe emotional or mental harm due to the
217 presence of the defendant if the victim or witness child or
218 person with mental retardation is required to testify in open
219 court. Such orders must shall relate to the taking of testimony
220 and shall include, but are not be limited to:
221 (a) Interviewing or the taking of depositions as part of a
222 civil or criminal proceeding.
223 (b) Examination and cross-examination for the purpose of
224 qualifying as a witness or testifying in any proceeding.
225 (c) The use of testimony taken outside of the courtroom,
226 including proceedings under ss. 92.53 and 92.54.
227 (2) In ruling upon the motion, the court shall take into
228 consideration:
229 (a) The age of the child, the nature of the offense or act,
230 the relationship of the child to the parties in the case or to
231 the defendant in a criminal action, the degree of emotional
232 trauma that will result to the child as a consequence of the
233 defendant’s presence, and any other fact that the court deems
234 relevant; or
235 (b) The age of the person who has an intellectual
236 disability with mental retardation, the functional capacity of
237 such the person with mental retardation, the nature of the
238 offenses or act, the relationship of the person with mental
239 retardation to the parties in the case or to the defendant in a
240 criminal action, the degree of emotional trauma that will result
241 to the person with mental retardation as a consequence of the
242 defendant’s presence, and any other fact that the court deems
243 relevant.
244 (3) In addition to such other relief as is provided by law,
245 the court may enter orders limiting the number of times that a
246 child or a person who has an intellectual disability with mental
247 retardation may be interviewed, prohibiting depositions of such
248 a child or person with mental retardation, requiring the
249 submission of questions before the prior to examination of a
250 child or person with mental retardation, setting the place and
251 conditions for interviewing the a child or person with mental
252 retardation or for conducting any other proceeding, or
253 permitting or prohibiting the attendance of any person at any
254 proceeding. The court shall enter any order necessary to protect
255 the rights of all parties, including the defendant in any
256 criminal action.
257 Section 7. Subsection (1) of section 320.10, Florida
258 Statutes, is amended to read:
259 320.10 Exemptions.—
260 (1) The provisions of s. 320.08 do not apply to:
261 (a) Any motor vehicle or mobile home owned by, and operated
262 exclusively for the personal use of, any member of the United
263 States Armed Forces who is not a resident of this state and who
264 is stationed in the state while in compliance with military or
265 naval orders;
266 (b) Any motor vehicle owned or operated exclusively by the
267 Federal Government;
268 (c) Any motor vehicle owned and operated exclusively for
269 the benefit of the Boys’ Clubs of America, the National Audubon
270 Society, the National Children’s Cardiac Hospital, any humane
271 society, any nationally chartered veterans’ organization that
272 maintains a state headquarters in this state, the Children’s
273 Bible Mission, the Boy Scouts of America, the Girl Scouts of
274 America, the Salvation Army, the American National Red Cross,
275 the United Service Organization, any local member unit of the
276 National Urban League which provides free services to municipal
277 and county residents who are in need of such services, the Young
278 Men’s Christian Association, the Young Men’s Hebrew Association,
279 the Camp Fire Girls’ Council, the Young Women’s Christian
280 Association, the Young Women’s Hebrew Association, any local
281 member unit of the Arc of Florida Association for Retarded
282 Citizens, the Children’s Home Society of Florida, or the
283 Goodwill Industries. A not-for-profit organization named in this
284 paragraph and its local affiliate organizations is shall be
285 eligible for the exemption if it for so long as each maintains
286 current articles of incorporation on file with the Department of
287 State and qualifies as a not-for-profit organization under s.
288 212.08;
289 (d) Any motor vehicle owned and operated by a church,
290 temple, or synagogue for exclusive use as a community service
291 van or to transport passengers without compensation to religious
292 services or for religious education;
293 (e) Any motor vehicle owned and operated by the Civil Air
294 Patrol or the United States Coast Guard Auxiliary;
295 (f) Any mobile blood bank unit when operated as a nonprofit
296 service by an organization;
297 (g) Any mobile X-ray unit or truck or bus used exclusively
298 for public health purposes;
299 (h) Any school bus owned and operated by a nonprofit
300 educational or religious corporation;
301 (i) Any vehicle used by any of the various search and
302 rescue units of the several counties for exclusive use as a
303 search and rescue vehicle; and
304 (j) Any motor vehicle used by a community transportation
305 coordinator or a transportation operator as defined in part I of
306 chapter 427, and which is used exclusively to transport
307 transportation disadvantaged persons.
308 Section 8. Paragraph (d) of subsection (3) of section
309 383.14, Florida Statutes, is amended to read:
310 383.14 Screening for metabolic disorders, other hereditary
311 and congenital disorders, and environmental risk factors.—
312 (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
313 shall administer and provide certain services to implement the
314 provisions of this section and shall:
315 (d) Maintain a confidential registry of cases, including
316 information of importance for the purpose of followup services
317 to prevent intellectual disabilities mental retardation, to
318 correct or ameliorate physical disabilities handicaps, and for
319 epidemiologic studies, if indicated. Such registry shall be
320 exempt from the provisions of s. 119.07(1).
321
322 All provisions of this subsection must be coordinated with the
323 provisions and plans established under this chapter, chapter
324 411, and Pub. L. No. 99-457.
325 Section 9. Subsection (9) and subsections (20) through (31)
326 of section 393.063, Florida Statutes, are reordered and amended
327 to read:
328 393.063 Definitions.—For the purposes of this chapter, the
329 term:
330 (9) “Developmental disability” means a disorder or syndrome
331 that is attributable to intellectual disability retardation,
332 cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
333 that manifests before the age of 18; and that constitutes a
334 substantial handicap that can reasonably be expected to continue
335 indefinitely.
336 (21)(20) “Intermediate care facility for the
337 developmentally disabled” or “ICF/DD” means a residential
338 facility licensed and certified under pursuant to part VIII of
339 chapter 400.
340 (22)(21) “Medical/dental services” means medically
341 necessary services that which are provided or ordered for a
342 client by a person licensed under chapter 458, chapter 459, or
343 chapter 466. Such services may include, but are not limited to,
344 prescription drugs, specialized therapies, nursing supervision,
345 hospitalization, dietary services, prosthetic devices, surgery,
346 specialized equipment and supplies, adaptive equipment, and
347 other services as required to prevent or alleviate a medical or
348 dental condition.
349 (23)(22) “Personal care services” means individual
350 assistance with or supervision of essential activities of daily
351 living for self-care, including ambulation, bathing, dressing,
352 eating, grooming, and toileting, and other similar services that
353 are incidental to the care furnished and essential to the
354 health, safety, and welfare of the client if when there is no
355 one else is available to perform those services.
356 (24)(23) “Prader-Willi syndrome” means an inherited
357 condition typified by neonatal hypotonia with failure to thrive,
358 hyperphagia or an excessive drive to eat which leads to obesity
359 usually at 18 to 36 months of age, mild to moderate mental
360 retardation, hypogonadism, short stature, mild facial
361 dysmorphism, and a characteristic neurobehavior.
362 (25)(24) “Relative” means an individual who is connected by
363 affinity or consanguinity to the client and who is 18 years of
364 age or older.
365 (26)(25) “Resident” means a any person who has a with
366 developmental disability and resides disabilities residing at a
367 residential facility, whether or not such person is a client of
368 the agency.
369 (27)(26) “Residential facility” means a facility providing
370 room and board and personal care for persons who have with
371 developmental disabilities.
372 (28)(27) “Residential habilitation” means supervision and
373 training with the acquisition, retention, or improvement in
374 skills related to activities of daily living, such as personal
375 hygiene skills, homemaking skills, and the social and adaptive
376 skills necessary to enable the individual to reside in the
377 community.
378 (29)(28) “Residential habilitation center” means a
379 community residential facility licensed under this chapter which
380 provides habilitation services. The capacity of such a facility
381 may shall not be fewer than nine residents. After October 1,
382 1989, new residential habilitation centers may not be licensed
383 and the licensed capacity for any existing residential
384 habilitation center may not be increased.
385 (30)(29) “Respite service” means appropriate, short-term,
386 temporary care that is provided to a person who has a with
387 developmental disability in order disabilities to meet the
388 planned or emergency needs of the person or the family or other
389 direct service provider.
390 (31)(30) “Restraint” means a physical device, method, or
391 drug used to control dangerous behavior.
392 (a) A physical restraint is any manual method or physical
393 or mechanical device, material, or equipment attached or
394 adjacent to an the individual’s body so that he or she cannot
395 easily remove the restraint and which restricts freedom of
396 movement or normal access to one’s body.
397 (b) A drug used as a restraint is a medication used to
398 control the person’s behavior or to restrict his or her freedom
399 of movement and is not a standard treatment for the person’s
400 medical or psychiatric condition. Physically holding a person
401 during a procedure to forcibly administer psychotropic
402 medication is a physical restraint.
403 (c) Restraint does not include physical devices, such as
404 orthopedically prescribed appliances, surgical dressings and
405 bandages, supportive body bands, or other physical holding when
406 necessary for routine physical examinations and tests; for
407 purposes of orthopedic, surgical, or other similar medical
408 treatment; when used to provide support for the achievement of
409 functional body position or proper balance; or when used to
410 protect a person from falling out of bed.
411 (20)(31) “Intellectual disability” “Retardation” means
412 significantly subaverage general intellectual functioning
413 existing concurrently with deficits in adaptive behavior which
414 that manifests before the age of 18 and can reasonably be
415 expected to continue indefinitely. For the purposes of this
416 definition, the term:
417 (a) “Adaptive behavior” means the effectiveness or degree
418 with which an individual meets the standards of personal
419 independence and social responsibility expected of his or her
420 age, cultural group, and community.
421 (b) “Significantly subaverage general intellectual
422 functioning,” for the purpose of this definition, means
423 performance that which is two or more standard deviations from
424 the mean score on a standardized intelligence test specified in
425 the rules of the agency. “Adaptive behavior,” for the purpose of
426 this definition, means the effectiveness or degree with which an
427 individual meets the standards of personal independence and
428 social responsibility expected of his or her age, cultural
429 group, and community.
430
431 For purposes of the application of the criminal laws and
432 procedural rules of this state to matters relating to pretrial,
433 trial, sentencing, and any matters relating to the imposition
434 and execution of the death penalty, the terms “intellectual
435 disability” or “intellectually disabled” are interchangeable
436 with and have the same meaning as the terms “mental retardation”
437 or “retardation” and “mentally retarded” as defined in s.
438 393.063 before July 1, 2011.
439 Section 10. Subsection (1), paragraphs (c) and (d) of
440 subsection (2), paragraphs (b) through (d) of subsection (3),
441 paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
442 (g) of subsection (5), subsection (6), paragraph (d) of
443 subsection (7), paragraph (b) of subsection (8), subsection
444 (10), and paragraph (b) of subsection (12) of section 393.11,
445 Florida Statutes, are amended to read:
446 393.11 Involuntary admission to residential services.—
447 (1) JURISDICTION.—If When a person has an intellectual
448 disability is mentally retarded and requires involuntary
449 admission to residential services provided by the agency, the
450 circuit court of the county in which the person resides has
451 shall have jurisdiction to conduct a hearing and enter an order
452 involuntarily admitting the person in order for that the person
453 to may receive the care, treatment, habilitation, and
454 rehabilitation that which the person needs. For the purpose of
455 identifying intellectual disability mental retardation,
456 diagnostic capability shall be established by the agency. Except
457 as otherwise specified, the proceedings under this section are
458 shall be governed by the Florida Rules of Civil Procedure.
459 (2) PETITION.—
460 (c) The petition shall be verified and must shall:
461 1. State the name, age, and present address of the
462 commissioners and their relationship to the person who has an
463 intellectual disability with mental retardation or autism;
464 2. State the name, age, county of residence, and present
465 address of the person who has an intellectual disability with
466 mental retardation or autism;
467 3. Allege that the commission believes that the person
468 needs involuntary residential services and specify the factual
469 information on which the belief is based;
470 4. Allege that the person lacks sufficient capacity to give
471 express and informed consent to a voluntary application for
472 services and lacks the basic survival and self-care skills to
473 provide for the person’s well-being or is likely to physically
474 injure others if allowed to remain at liberty; and
475 5. State which residential setting is the least restrictive
476 and most appropriate alternative and specify the factual
477 information on which the belief is based.
478 (d) The petition shall be filed in the circuit court of the
479 county in which the person who has the intellectual disability
480 with mental retardation or autism resides.
481 (3) NOTICE.—
482 (b) If Whenever a motion or petition has been filed
483 pursuant to s. 916.303 to dismiss criminal charges against a
484 defendant who has an intellectual disability with retardation or
485 autism, and a petition is filed to involuntarily admit the
486 defendant to residential services under this section, the notice
487 of the filing of the petition must shall also be given to the
488 defendant’s attorney, the state attorney of the circuit from
489 which the defendant was committed, and the agency.
490 (c) The notice must shall state that a hearing shall be set
491 to inquire into the need of the person who has an intellectual
492 disability with mental retardation or autism for involuntary
493 residential services. The notice must shall also state the date
494 of the hearing on the petition.
495 (d) The notice must shall state that the individual who has
496 an intellectual disability with mental retardation or autism has
497 the right to be represented by counsel of his or her own choice
498 and that, if the person cannot afford an attorney, the court
499 shall appoint one.
500 (4) AGENCY PARTICIPATION.—
501 (b) Following examination, the agency shall file a written
502 report with the court at least not less than 10 working days
503 before the date of the hearing. The report must be served on the
504 petitioner, the person who has the intellectual disability with
505 mental retardation, and the person’s attorney at the time the
506 report is filed with the court.
507 (5) EXAMINING COMMITTEE.—
508 (b) The court shall appoint at least no fewer than three
509 disinterested experts who have demonstrated to the court an
510 expertise in the diagnosis, evaluation, and treatment of persons
511 who have intellectual disabilities with mental retardation. The
512 committee must include at least one licensed and qualified
513 physician, one licensed and qualified psychologist, and one
514 qualified professional who, at with a minimum, has of a masters
515 degree in social work, special education, or vocational
516 rehabilitation counseling, to examine the person and to testify
517 at the hearing on the involuntary admission to residential
518 services.
519 (e) The committee shall prepare a written report for the
520 court. The report must explicitly document the extent that the
521 person meets the criteria for involuntary admission. The report,
522 and expert testimony, must include, but not be limited to:
523 1. The degree of the person’s intellectual disability
524 mental retardation and whether, using diagnostic capabilities
525 established by the agency, the person is eligible for agency
526 services;
527 2. Whether, because of the person’s degree of intellectual
528 disability mental retardation, the person:
529 a. Lacks sufficient capacity to give express and informed
530 consent to a voluntary application for services pursuant to s.
531 393.065;
532 b. Lacks basic survival and self-care skills to such a
533 degree that close supervision and habilitation in a residential
534 setting is necessary and if not provided would result in a real
535 and present threat of substantial harm to the person’s well
536 being; or
537 c. Is likely to physically injure others if allowed to
538 remain at liberty.
539 3. The purpose to be served by residential care;
540 4. A recommendation on the type of residential placement
541 which would be the most appropriate and least restrictive for
542 the person; and
543 5. The appropriate care, habilitation, and treatment.
544 (f) The committee shall file the report with the court at
545 least not less than 10 working days before the date of the
546 hearing. The report must shall be served on the petitioner, the
547 person who has the intellectual disability with mental
548 retardation, the person’s attorney at the time the report is
549 filed with the court, and the agency.
550 (g) Members of the examining committee shall receive a
551 reasonable fee to be determined by the court. The fees shall are
552 to be paid from the general revenue fund of the county in which
553 the person who has the intellectual disability with mental
554 retardation resided when the petition was filed.
555 (6) COUNSEL; GUARDIAN AD LITEM.—
556 (a) The person who has the intellectual disability must
557 with mental retardation shall be represented by counsel at all
558 stages of the judicial proceeding. If In the event the person is
559 indigent and cannot afford counsel, the court shall appoint a
560 public defender at least not less than 20 working days before
561 the scheduled hearing. The person’s counsel shall have full
562 access to the records of the service provider and the agency. In
563 all cases, the attorney shall represent the rights and legal
564 interests of the person with mental retardation, regardless of
565 who initiates may initiate the proceedings or pays pay the
566 attorney’s fee.
567 (b) If the attorney, during the course of his or her
568 representation, reasonably believes that the person who has the
569 intellectual disability with mental retardation cannot
570 adequately act in his or her own interest, the attorney may seek
571 the appointment of a guardian ad litem. A prior finding of
572 incompetency is not required before a guardian ad litem is
573 appointed pursuant to this section.
574 (7) HEARING.—
575 (d) The person who has the intellectual disability must
576 with mental retardation shall be physically present throughout
577 the entire proceeding. If the person’s attorney believes that
578 the person’s presence at the hearing is not in his or her the
579 person’s best interest, the person’s presence may be waived once
580 the court has seen the person and the hearing has commenced.
581 (8) ORDER.—
582 (b) An order of involuntary admission to residential
583 services may not be entered unless the court finds that:
584 1. The person is intellectually disabled mentally retarded
585 or autistic;
586 2. Placement in a residential setting is the least
587 restrictive and most appropriate alternative to meet the
588 person’s needs; and
589 3. Because of the person’s degree of intellectual
590 disability mental retardation or autism, the person:
591 a. Lacks sufficient capacity to give express and informed
592 consent to a voluntary application for services pursuant to s.
593 393.065 and lacks basic survival and self-care skills to such a
594 degree that close supervision and habilitation in a residential
595 setting is necessary and, if not provided, would result in a
596 real and present threat of substantial harm to the person’s
597 well-being; or
598 b. Is likely to physically injure others if allowed to
599 remain at liberty.
600 (10) COMPETENCY.—
601 (a) The issue of competency is shall be separate and
602 distinct from a determination of the appropriateness of
603 involuntary admission to residential services due to
604 intellectual disability for a condition of mental retardation.
605 (b) The issue of the competency of a person who has an
606 intellectual disability with mental retardation for purposes of
607 assigning guardianship shall be determined in a separate
608 proceeding according to the procedures and requirements of
609 chapter 744. The issue of the competency of a person who has an
610 intellectual disability with mental retardation or autism for
611 purposes of determining whether the person is competent to
612 proceed in a criminal trial shall be determined in accordance
613 with chapter 916.
614 (12) APPEAL.—
615 (b) The filing of an appeal by the person who has an
616 intellectual disability stays with mental retardation shall stay
617 admission of the person into residential care. The stay remains
618 shall remain in effect during the pendency of all review
619 proceedings in Florida courts until a mandate issues.
620 Section 11. Subsection (18) of section 394.455, Florida
621 Statutes, is amended to read:
622 394.455 Definitions.—As used in this part, unless the
623 context clearly requires otherwise, the term:
624 (18) “Mental illness” means an impairment of the mental or
625 emotional processes that exercise conscious control of one’s
626 actions or of the ability to perceive or understand reality,
627 which impairment substantially interferes with the a person’s
628 ability to meet the ordinary demands of living, regardless of
629 etiology. For the purposes of this part, the term does not
630 include a retardation or developmental disability as defined in
631 chapter 393, intoxication, or conditions manifested only by
632 antisocial behavior or substance abuse impairment.
633 Section 12. Subsections (3) through (13) of section
634 400.960, Florida Statutes, are amended to read:
635 400.960 Definitions.—As used in this part, the term:
636 (3) “Autism” has the same meaning as in s. 393.063.
637 (4) “Cerebral palsy” has the same meaning as in s. 393.063.
638 (3)(5) “Client” means any person determined by the Agency
639 for Persons with Disabilities to be eligible for developmental
640 services.
641 (4)(6) “Developmentally disabled” “developmental
642 disability” has the same meaning as “developmental disability”
643 as that term is defined in s. 393.063.
644 (5)(7) “Direct service provider” means a person 18 years of
645 age or older who has direct contact with individuals who have
646 with developmental disabilities and who is unrelated to such the
647 individuals with developmental disabilities.
648 (6)(8) “Intermediate care facility for the developmentally
649 disabled” means a residential facility licensed and certified in
650 accordance with state law, and certified by the Federal
651 Government, pursuant to the Social Security Act, as a provider
652 of Medicaid services to persons who have with developmental
653 disabilities.
654 (9) “Prader-Willi syndrome” has the same meaning as in s.
655 393.063.
656 (7)(10)(a) “Restraint” means a physical device, method, or
657 drug used to control behavior.
658 (a) A physical restraint is any manual method or physical
659 or mechanical device, material, or equipment attached or
660 adjacent to the individual’s body so that he or she cannot
661 easily remove the restraint and which restricts freedom of
662 movement or normal access to one’s body.
663 (b) A drug used as a restraint is a medication used to
664 control the person’s behavior or to restrict his or her freedom
665 of movement. Physically holding a person during a procedure to
666 forcibly administer psychotropic medication is a physical
667 restraint.
668 (c) Restraint does not include physical devices, such as
669 orthopedically prescribed appliances, surgical dressings and
670 bandages, supportive body bands, or other physical holding when
671 necessary for routine physical examinations and tests; for
672 purposes of orthopedic, surgical, or other similar medical
673 treatment; when used to provide support for the achievement of
674 functional body position or proper balance; or when used to
675 protect a person from falling out of bed.
676 (11) “Retardation” has the same meaning as in s. 393.063.
677 (8)(12) “Seclusion” means the physical segregation of a
678 person in any fashion or the involuntary isolation of a person
679 in a room or area from which the person is prevented from
680 leaving. The prevention may be by physical barrier or by a staff
681 member who is acting in a manner, or who is physically situated,
682 so as to prevent the person from leaving the room or area. For
683 purposes of this part, the term does not mean isolation due to a
684 person’s medical condition or symptoms.
685 (13) “Spina bifida” has the same meaning as in s. 393.063.
686 Section 13. Subsection (12) of section 408.032, Florida
687 Statutes, is amended to read:
688 408.032 Definitions relating to Health Facility and
689 Services Development Act.—As used in ss. 408.031-408.045, the
690 term:
691 (12) “Intermediate care facility for the developmentally
692 disabled” means a residential facility licensed under part VIII
693 of chapter 400 chapter 393 and certified by the Federal
694 Government pursuant to the Social Security Act as a provider of
695 Medicaid services to persons who are mentally retarded or who
696 have a related condition.
697 Section 14. Subsection (8) of section 409.908, Florida
698 Statutes, is amended to read
699 (8) A provider of home-based or community-based services
700 rendered pursuant to a federally approved waiver shall be
701 reimbursed based on an established or negotiated rate for each
702 service. These rates shall be established according to an
703 analysis of the expenditure history and prospective budget
704 developed by each contract provider participating in the waiver
705 program, or under any other methodology adopted by the agency
706 and approved by the Federal Government in accordance with the
707 waiver. Privately owned and operated community-based residential
708 facilities which meet agency requirements and which formerly
709 received Medicaid reimbursement for the optional intermediate
710 care facility for the intellectually disabled mentally retarded
711 service may participate in the developmental services waiver as
712 part of a home-and-community-based continuum of care for
713 Medicaid recipients who receive waiver services.
714 Section 15. Subsection (16) of section 413.20, Florida
715 Statutes, is amended to read:
716 413.20 Definitions.—As used in this part, the term:
717 (16) “Person who has a significant disability” means an
718 individual who has a disability that is a severe physical or
719 mental impairment that seriously limits one or more functional
720 capacities, such as mobility, communication, self-care, self
721 direction, interpersonal skills, work tolerance, or work skills,
722 in terms of an employment outcome; whose vocational
723 rehabilitation may be expected to require multiple vocational
724 rehabilitation services over an extended period of time; and who
725 has one or more physical or mental disabilities resulting from
726 amputation, arthritis, autism, blindness, burn injury, cancer,
727 cerebral palsy, cystic fibrosis, deafness, head injury, heart
728 disease, hemiplegia, hemophilia, respiratory or pulmonary
729 dysfunction, intellectual disability mental retardation, mental
730 illness, multiple sclerosis, muscular dystrophy, musculoskeletal
731 disorder, neurological disorder, including stroke and epilepsy,
732 paraplegia, quadriplegia, or other spinal cord condition,
733 sickle-cell anemia, specific learning disability, end-stage
734 renal disease, or another disability or a combination of
735 disabilities that is determined, after an assessment for
736 determining eligibility and vocational rehabilitation needs, to
737 cause comparable substantial functional limitation.
738 Section 16. Paragraph (a) of subsection (6) of section
739 440.49, Florida Statutes, is amended to read:
740 440.49 Limitation of liability for subsequent injury
741 through Special Disability Trust Fund.—
742 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
743 (a) Reimbursement is not allowed under this section unless
744 it is established that the employer knew of the preexisting
745 permanent physical impairment before prior to the occurrence of
746 the subsequent injury or occupational disease, and that the
747 permanent physical impairment is one of the following:
748 1. Epilepsy.
749 2. Diabetes.
750 3. Cardiac disease.
751 4. Amputation of foot, leg, arm, or hand.
752 5. Total loss of sight of one or both eyes or a partial
753 loss of corrected vision of more than 75 percent bilaterally.
754 6. Residual disability from poliomyelitis.
755 7. Cerebral palsy.
756 8. Multiple sclerosis.
757 9. Parkinson’s disease.
758 10. Meniscectomy.
759 11. Patellectomy.
760 12. Ruptured cruciate ligament.
761 13. Hemophilia.
762 14. Chronic osteomyelitis.
763 15. Surgical or spontaneous fusion of a major weight
764 bearing joint.
765 16. Hyperinsulinism.
766 17. Muscular dystrophy.
767 18. Thrombophlebitis.
768 19. Herniated intervertebral disk.
769 20. Surgical removal of an intervertebral disk or spinal
770 fusion.
771 21. One or more back injuries or a disease process of the
772 back resulting in disability over a total of 120 or more days,
773 if substantiated by a doctor’s opinion that there was a
774 preexisting impairment to the claimant’s back.
775 22. Total deafness.
776 23. Intellectual disability if Mental retardation, provided
777 the employee’s intelligence quotient is such that she or he
778 falls within the lowest 2 percentile of the general population.
779 However, it shall not be necessary for the employer does not
780 need to know the employee’s actual intelligence quotient or
781 actual relative ranking in relation to the intelligence quotient
782 of the general population.
783 24. Any permanent physical condition that which, before
784 prior to the industrial accident or occupational disease,
785 constitutes a 20 percent 20-percent impairment of a member or of
786 the body as a whole.
787 25. Obesity if, provided the employee is 30 percent or more
788 over the average weight designated for her or his height and age
789 in the Table of Average Weight of Americans by Height and Age
790 prepared by the Society of Actuaries using data from the 1979
791 Build and Blood Pressure Study.
792 26. Any permanent physical impairment as provided defined
793 in s. 440.15(3) which is a result of a prior industrial accident
794 with the same employer or the employer’s parent company,
795 subsidiary, sister company, or affiliate located within the
796 geographical boundaries of this state.
797 Section 17. Paragraph (g) of subsection (1) of section
798 499.0054, Florida Statutes, is amended to read:
799 499.0054 Advertising and labeling of drugs, devices, and
800 cosmetics; exemptions.—
801 (1) It is a violation of the Florida Drug and Cosmetic Act
802 to perform or cause the performance of any of the following
803 acts:
804 (g) The advertising of any drug or device represented to
805 have any effect in any of the following conditions, disorders,
806 diseases, or processes:
807 1. Blood disorders.
808 2. Bone or joint diseases.
809 3. Kidney diseases or disorders.
810 4. Cancer.
811 5. Diabetes.
812 6. Gall bladder diseases or disorders.
813 7. Heart and vascular diseases.
814 8. High blood pressure.
815 9. Diseases or disorders of the ear or auditory apparatus,
816 including hearing loss or deafness.
817 10. Mental disease or intellectual disability mental
818 retardation.
819 11. Paralysis.
820 12. Prostate gland disorders.
821 13. Conditions of the scalp affecting hair loss.
822 14. Baldness.
823 15. Endocrine disorders.
824 16. Sexual impotence.
825 17. Tumors.
826 18. Venereal diseases.
827 19. Varicose ulcers.
828 20. Breast enlargement.
829 21. Purifying blood.
830 22. Metabolic disorders.
831 23. Immune system disorders or conditions affecting the
832 immune system.
833 24. Extension of life expectancy.
834 25. Stress and tension.
835 26. Brain stimulation or performance.
836 27. The body’s natural defense mechanisms.
837 28. Blood flow.
838 29. Depression.
839 30. Human immunodeficiency virus or acquired immune
840 deficiency syndrome or related disorders or conditions.
841 Section 18. Section 514.072, Florida Statutes, is amended
842 to read:
843 514.072 Certification of swimming instructors for people
844 who have developmental disabilities required.—Any person working
845 at a swimming pool who holds himself or herself out as a
846 swimming instructor specializing in training people who have
847 developmental disabilities, as defined in s. 393.063(10), may be
848 certified by the Dan Marino Foundation, Inc., in addition to
849 being certified under s. 514.071. The Dan Marino Foundation,
850 Inc., must develop certification requirements and a training
851 curriculum for swimming instructors for people who have
852 developmental disabilities and must submit the certification
853 requirements to the Department of Health for review by January
854 1, 2007. A person certified under s. 514.071 before July 1,
855 2007, must meet the additional certification requirements of
856 this section before January 1, 2008. A person certified under s.
857 514.071 on or after July 1, 2007, must meet the additional
858 certification requirements of this section within 6 months after
859 receiving certification under s. 514.071.
860 Section 19. Section 627.6041, Florida Statutes, is amended
861 to read:
862 627.6041 Handicapped Children with disabilities;
863 continuation of coverage.—
864 (1) A hospital or medical expense insurance policy or
865 health care services plan contract that is delivered or issued
866 for delivery in this state and that provides that coverage of a
867 dependent child terminates will terminate upon attainment of the
868 limiting age for dependent children specified in the policy or
869 contract must shall also provide in substance that attainment of
870 the limiting age does not terminate the coverage of the child
871 while the child continues to be both:
872 (a)(1) Incapable of self-sustaining employment by reason of
873 an intellectual mental retardation or physical disability.
874 handicap; and
875 (b)(2) Chiefly dependent upon the policyholder or
876 subscriber for support and maintenance.
877 (2) If a claim is denied under a policy or contract for the
878 stated reason that the child has attained the limiting age for
879 dependent children specified in the policy or contract, the
880 notice of denial must state that the policyholder has the burden
881 of establishing that the child continues to meet the criteria
882 specified in subsection subsections (1) and (2).
883 Section 20. Section 627.6615, Florida Statutes, is amended
884 to read:
885 627.6615 Handicapped Children with disabilities;
886 continuation of coverage under group policy.—
887 (1) A group health insurance policy or health care services
888 plan contract that is delivered or issued for delivery in this
889 state and that provides that coverage of a dependent child of an
890 employee or other member of the covered group terminates will
891 terminate upon attainment of the limiting age for dependent
892 children specified in the policy or contract must shall also
893 provide in substance that attainment of the limiting age does
894 not terminate the coverage of the child while the child
895 continues to be both:
896 (a)(1) Incapable of self-sustaining employment by reason of
897 an intellectual mental retardation or physical disability.
898 handicap; and
899 (b)(2) Chiefly dependent upon the employee or member for
900 support and maintenance.
901 (2) If a claim is denied under a policy or contract for the
902 stated reason that the child has attained the limiting age for
903 dependent children specified in the policy or contract, the
904 notice of denial must state that the certificateholder or
905 subscriber has the burden of establishing that the child
906 continues to meet the criteria specified in subsection
907 subsections (1) and (2).
908 Section 21. Subsection (29) of section 641.31, Florida
909 Statutes, is amended to read:
910 641.31 Health maintenance contracts.—
911 (29) If a health maintenance contract provides that
912 coverage of a dependent child of the subscriber terminates will
913 terminate upon attainment of the limiting age for dependent
914 children which is specified in the contract, the contract must
915 also provide in substance that attainment of the limiting age
916 does not terminate the coverage of the child while the child
917 continues to be both:
918 (a) Incapable of self-sustaining employment by reason of an
919 intellectual mental retardation or physical disability.
920 handicap, and
921 (b) Chiefly dependent upon the employee or member for
922 support and maintenance.
923
924 If the claim is denied under a contract for the stated reason
925 that the child has attained the limiting age for dependent
926 children specified in the contract, the notice or denial must
927 state that the subscriber has the burden of establishing that
928 the child continues to meet the criteria specified in this
929 subsection paragraphs (a) and (b).
930 Section 22. Subsection (4) of section 650.05, Florida
931 Statutes, is amended to read:
932 650.05 Plans for coverage of employees of political
933 subdivisions.—
934 (4)(a) Notwithstanding any other provision of this chapter,
935 effective January 1, 1972, all state political subdivisions
936 receiving financial aid which that provide social security
937 coverage for their employees pursuant to the provisions of this
938 chapter and the provisions of the various retirement systems as
939 authorized by law shall, in addition to other purposes, use
940 utilize all grants-in-aid and other revenue received from the
941 state to pay the employer’s share of social security cost.
942 (b) The grants-in-aid and other revenue referred to in
943 paragraph (a) specifically include, but are not limited to,
944 minimum foundation program grants to public school districts and
945 community colleges; gasoline, motor fuel, cigarette, racing, and
946 insurance premium taxes distributed to political subdivisions;
947 and amounts specifically appropriated as grants-in-aid for
948 mental health, intellectual disabilities mental retardation, and
949 mosquito control programs.
950 Section 23. Subsection (1) of section 765.204, Florida
951 Statutes, is amended to read:
952 765.204 Capacity of principal; procedure.—
953 (1) A principal is presumed to be capable of making health
954 care decisions for herself or himself unless she or he is
955 determined to be incapacitated. Incapacity may not be inferred
956 from the person’s voluntary or involuntary hospitalization for
957 mental illness or from her or his intellectual disability mental
958 retardation.
959 Section 24. Section 849.04, Florida Statutes, is amended to
960 read:
961 849.04 Permitting minors and persons under guardianship to
962 gamble.—Whoever being The proprietor, owner, or keeper of any E.
963 O., keno or pool table, or billiard table, wheel of fortune, or
964 other game of chance, kept for the purpose of betting, who
965 willfully and knowingly allows a any minor or any person who is
966 mentally incompetent or under guardianship to play at such game
967 or to bet on such game of chance; or whoever aids or abets or
968 otherwise encourages such playing or betting of any money or
969 other valuable thing upon the result of such game of chance by a
970 any minor or any person who is mentally incompetent or under
971 guardianship, commits shall be guilty of a felony of the third
972 degree, punishable as provided in s. 775.082, s. 775.083, or s.
973 775.084. For the purpose of this section, the term a “person who
974 is mentally incompetent person” means a person is one who
975 because of mental illness, intellectual disability mental
976 retardation, senility, excessive use of drugs or alcohol, or
977 other mental incapacity is incapable of either managing his or
978 her property or caring for himself or herself or both.
979 Section 25. Section 914.16, Florida Statutes, is amended to
980 read:
981 914.16 Child abuse and sexual abuse of victims under age 16
982 or who have an intellectual disability persons with mental
983 retardation; limits on interviews.—The chief judge of each
984 judicial circuit, after consultation with the state attorney and
985 the public defender for the judicial circuit, the appropriate
986 chief law enforcement officer, and any other person deemed
987 appropriate by the chief judge, shall provide by order
988 reasonable limits on the number of interviews which that a
989 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
990 847.0135(5) who is under 16 years of age or a victim of a
991 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
992 has an intellectual disability is a person with mental
993 retardation as defined in s. 393.063 must submit to for law
994 enforcement or discovery purposes. The order shall, To the
995 extent possible, the order must protect the victim from the
996 psychological damage of repeated interrogations while preserving
997 the rights of the public, the victim, and the person charged
998 with the violation.
999 Section 26. Section 914.17, Florida Statutes, is amended to
1000 read:
1001 914.17 Appointment of advocate for victims or witnesses who
1002 are minors or intellectually disabled persons with mental
1003 retardation.—
1004 (1) A guardian ad litem or other advocate shall be
1005 appointed by the court to represent a minor in any criminal
1006 proceeding if the minor is a victim of or witness to child abuse
1007 or neglect, or if the minor is a victim of a sexual offense, or
1008 a witness to a sexual offense committed against another minor.
1009 The court may appoint a guardian ad litem or other advocate in
1010 any other criminal proceeding in which a minor is involved as
1011 either a victim or a witness. The guardian ad litem or other
1012 advocate shall have full access to all evidence and reports
1013 introduced during the proceedings, may interview witnesses, may
1014 make recommendations to the court, shall be noticed and have the
1015 right to appear on behalf of the minor at all proceedings, and
1016 may request additional examinations by medical doctors,
1017 psychiatrists, or psychologists. It is the duty of The guardian
1018 ad litem or other advocate shall to perform the following
1019 services:
1020 (a) To Explain, in language understandable to the minor,
1021 all legal proceedings in which the minor is shall be involved;
1022 (b) To Act, as a friend of the court, to advise the judge,
1023 whenever appropriate, of the minor’s ability to understand and
1024 cooperate with any court proceeding; and
1025 (c) To Assist the minor and the minor’s family in coping
1026 with the emotional effects of the crime and subsequent criminal
1027 proceedings in which the minor is involved.
1028 (2) An advocate shall be appointed by the court to
1029 represent a person who has an intellectual disability with
1030 mental retardation as defined in s. 393.063 in any criminal
1031 proceeding if the person with mental retardation is a victim of
1032 or witness to abuse or neglect, or if the person with mental
1033 retardation is a victim of a sexual offense, or a witness to a
1034 sexual offense committed against a minor or person who has an
1035 intellectual disability with mental retardation. The court may
1036 appoint an advocate in any other criminal proceeding in which
1037 such a person with mental retardation is involved as either a
1038 victim or a witness. The advocate shall have full access to all
1039 evidence and reports introduced during the proceedings, may
1040 interview witnesses, may make recommendations to the court,
1041 shall be noticed and have the right to appear on behalf of the
1042 person with mental retardation at all proceedings, and may
1043 request additional examinations by medical doctors,
1044 psychiatrists, or psychologists. It is the duty of The advocate
1045 shall to perform the following services:
1046 (a) To Explain, in language understandable to the person
1047 with mental retardation, all legal proceedings in which the
1048 person is shall be involved;
1049 (b) To Act, as a friend of the court, to advise the judge,
1050 whenever appropriate, of the person’s person with mental
1051 retardation’s ability to understand and cooperate with any court
1052 proceedings; and
1053 (c) To assist the person with mental retardation and the
1054 person’s family in coping with the emotional effects of the
1055 crime and subsequent criminal proceedings in which the person
1056 with mental retardation is involved.
1057 (3) Any person participating in a judicial proceeding as a
1058 guardian ad litem or other advocate is shall be presumed prima
1059 facie to be acting in good faith and in so doing is shall be
1060 immune from any liability, civil or criminal, which that
1061 otherwise might be incurred or imposed.
1062 Section 27. Subsections (1), (2), and (3) of section
1063 916.105, Florida Statutes, are amended to read:
1064 916.105 Legislative intent.—
1065 (1) It is the intent of the Legislature that the Department
1066 of Children and Family Services and the Agency for Persons with
1067 Disabilities, as appropriate, establish, locate, and maintain
1068 separate and secure forensic facilities and programs for the
1069 treatment or training of defendants who have been charged with a
1070 felony and who have been found to be incompetent to proceed due
1071 to their mental illness, intellectual disability mental
1072 retardation, or autism, or who have been acquitted of a felony
1073 by reason of insanity, and who, while still under the
1074 jurisdiction of the committing court, are committed to the
1075 department or agency under the provisions of this chapter. Such
1076 facilities must shall be sufficient to accommodate the number of
1077 defendants committed under the conditions noted above. Except
1078 for those defendants found by the department or agency to be
1079 appropriate for treatment or training in a civil facility or
1080 program pursuant to subsection (3), forensic facilities must
1081 shall be designed and administered so that ingress and egress,
1082 together with other requirements of this chapter, may be
1083 strictly controlled by staff responsible for security in order
1084 to protect the defendant, facility personnel, other clients, and
1085 citizens in adjacent communities.
1086 (2) It is the intent of the Legislature that treatment or
1087 training programs for defendants who are found to have mental
1088 illness, intellectual disability mental retardation, or autism
1089 and are involuntarily committed to the department or agency, and
1090 who are still under the jurisdiction of the committing court, be
1091 provided in a manner, subject to security requirements and other
1092 mandates of this chapter, which ensures as to ensure the rights
1093 of the defendants as provided in this chapter.
1094 (3) It is the intent of the Legislature that evaluation and
1095 services to defendants who have mental illness, intellectual
1096 disability mental retardation, or autism be provided in
1097 community settings, in community residential facilities, or in
1098 civil facilities, whenever this is a feasible alternative to
1099 treatment or training in a state forensic facility.
1100 Section 28. Subsections (10) through (17) of section
1101 916.106, Florida Statutes, are reordered and amended to read:
1102 916.106 Definitions.—For the purposes of this chapter, the
1103 term:
1104 (10) “Forensic facility” means a separate and secure
1105 facility established within the department or agency to serve
1106 forensic clients. A separate and secure facility means a
1107 security-grade building for the purpose of separately housing
1108 persons who have mental illness from persons who have
1109 intellectual disabilities with retardation or autism and
1110 separately housing persons who have been involuntarily committed
1111 pursuant to this chapter from nonforensic residents.
1112 (11) “Incompetent to proceed” means unable to proceed at
1113 any material stage of a criminal proceeding, which includes
1114 shall include trial of the case, pretrial hearings involving
1115 questions of fact on which the defendant might be expected to
1116 testify, entry of a plea, proceedings for violation of probation
1117 or violation of community control, sentencing, and hearings on
1118 issues regarding a defendant’s failure to comply with court
1119 orders or conditions or other matters in which the mental
1120 competence of the defendant is necessary for a just resolution
1121 of the issues being considered.
1122 (12) “Institutional security personnel” means the staff of
1123 forensic facilities who meet or exceed the requirements of s.
1124 943.13 and who are responsible for providing security,
1125 protecting clients and personnel, enforcing rules, preventing
1126 and investigating unauthorized activities, and safeguarding the
1127 interests of residents citizens in the surrounding communities.
1128 (14)(13) “Mental illness” means an impairment of the
1129 emotional processes that exercise conscious control of one’s
1130 actions, or of the ability to perceive or understand reality,
1131 which impairment substantially interferes with the a defendant’s
1132 ability to meet the ordinary demands of living. For the purposes
1133 of this chapter, the term does not apply to defendants who have
1134 only an intellectual disability with only mental retardation or
1135 autism and does not include intoxication or conditions
1136 manifested only by antisocial behavior or substance abuse
1137 impairment.
1138 (15)(14) “Restraint” means a physical device, method, or
1139 drug used to control dangerous behavior.
1140 (a) A physical restraint is any manual method or physical
1141 or mechanical device, material, or equipment attached or
1142 adjacent to a person’s body so that he or she cannot easily
1143 remove the restraint and that restricts freedom of movement or
1144 normal access to one’s body.
1145 (b) A drug used as a restraint is a medication used to
1146 control the person’s behavior or to restrict his or her freedom
1147 of movement and not part of the standard treatment regimen of
1148 the person with a diagnosed mental illness who is a client of
1149 the department. Physically holding a person during a procedure
1150 to forcibly administer psychotropic medication is a physical
1151 restraint.
1152 (c) Restraint does not include physical devices, such as
1153 orthopedically prescribed appliances, surgical dressings and
1154 bandages, supportive body bands, or other physical holding when
1155 necessary for routine physical examinations and tests; for
1156 purposes of orthopedic, surgical, or other similar medical
1157 treatment; when used to provide support for the achievement of
1158 functional body position or proper balance; or when used to
1159 protect a person from falling out of bed.
1160 (13)(15) “Intellectual disability” “Retardation” has the
1161 same meaning as in s. 393.063.
1162 (16) “Seclusion” means the physical segregation of a person
1163 in any fashion or the involuntary isolation of a person in a
1164 room or area from which the person is prevented from leaving.
1165 The prevention may be by physical barrier or by a staff member
1166 who is acting in a manner, or who is physically situated, so as
1167 to prevent the person from leaving the room or area. For
1168 purposes of this chapter, the term does not mean isolation due
1169 to a person’s medical condition or symptoms, the confinement in
1170 a forensic facility to a bedroom or area during normal hours of
1171 sleep when there is not an active order for seclusion, or during
1172 an emergency such as a riot or hostage situation when clients
1173 may be temporarily placed in their rooms for their own safety.
1174 (17) “Social service professional” means a person whose
1175 minimum qualifications include a bachelor’s degree and at least
1176 2 years of social work, clinical practice, special education,
1177 habilitation, or equivalent experience working directly with
1178 persons who have intellectual disabilities with retardation,
1179 autism, or other developmental disabilities.
1180 Section 29. Paragraph (a) of subsection (1) and paragraph
1181 (a) of subsection (3) of section 916.107, Florida Statutes, are
1182 amended to read:
1183 916.107 Rights of forensic clients.—
1184 (1) RIGHT TO INDIVIDUAL DIGNITY.—
1185 (a) The policy of the state is that the individual dignity
1186 of the client shall be respected at all times and upon all
1187 occasions, including any occasion when the forensic client is
1188 detained, transported, or treated. Clients with mental illness,
1189 intellectual disability retardation, or autism and who are
1190 charged with committing felonies shall receive appropriate
1191 treatment or training. In a criminal case involving a client who
1192 has been adjudicated incompetent to proceed or not guilty by
1193 reason of insanity, a jail may be used as an emergency facility
1194 for up to 15 days following the date the department or agency
1195 receives a completed copy of the court commitment order
1196 containing all documentation required by the applicable Florida
1197 Rules of Criminal Procedure. For a forensic client who is held
1198 in a jail awaiting admission to a facility of the department or
1199 agency, evaluation and treatment or training may be provided in
1200 the jail by the local community mental health provider for
1201 mental health services, by the developmental disabilities
1202 program for persons with intellectual disability retardation or
1203 autism, the client’s physician or psychologist, or any other
1204 appropriate program until the client is transferred to a civil
1205 or forensic facility.
1206 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
1207 (a) A forensic client shall be asked to give express and
1208 informed written consent for treatment. If a client refuses such
1209 treatment as is deemed necessary and essential by the client’s
1210 multidisciplinary treatment team for the appropriate care of the
1211 client, such treatment may be provided under the following
1212 circumstances:
1213 1. In an emergency situation in which there is immediate
1214 danger to the safety of the client or others, such treatment may
1215 be provided upon the written order of a physician for a period
1216 not to exceed 48 hours, excluding weekends and legal holidays.
1217 If, after the 48-hour period, the client has not given express
1218 and informed consent to the treatment initially refused, the
1219 administrator or designee of the civil or forensic facility
1220 shall, within 48 hours, excluding weekends and legal holidays,
1221 petition the committing court or the circuit court serving the
1222 county in which the facility is located, at the option of the
1223 facility administrator or designee, for an order authorizing the
1224 continued treatment of the client. In the interim, the need for
1225 treatment shall be reviewed every 48 hours and may be continued
1226 without the consent of the client upon the continued written
1227 order of a physician who has determined that the emergency
1228 situation continues to present a danger to the safety of the
1229 client or others.
1230 2. In a situation other than an emergency situation, the
1231 administrator or designee of the facility shall petition the
1232 court for an order authorizing necessary and essential treatment
1233 for the client. The order shall allow such treatment for a
1234 period not to exceed 90 days following the date of the entry of
1235 the order. Unless the court is notified in writing that the
1236 client has provided express and informed consent in writing or
1237 that the client has been discharged by the committing court, the
1238 administrator or designee shall, before prior to the expiration
1239 of the initial 90-day order, petition the court for an order
1240 authorizing the continuation of treatment for another 90-day
1241 period. This procedure shall be repeated until the client
1242 provides consent or is discharged by the committing court.
1243 3. At the hearing on the issue of whether the court should
1244 enter an order authorizing treatment for which a client was
1245 unable to or refused to give express and informed consent, the
1246 court shall determine by clear and convincing evidence that the
1247 client has mental illness, intellectual disability retardation,
1248 or autism, that the treatment not consented to is essential to
1249 the care of the client, and that the treatment not consented to
1250 is not experimental and does not present an unreasonable risk of
1251 serious, hazardous, or irreversible side effects. In arriving at
1252 the substitute judgment decision, the court must consider at
1253 least the following factors:
1254 a. The client’s expressed preference regarding treatment;
1255 b. The probability of adverse side effects;
1256 c. The prognosis without treatment; and
1257 d. The prognosis with treatment.
1258
1259 The hearing shall be as convenient to the client as may be
1260 consistent with orderly procedure and shall be conducted in
1261 physical settings not likely to be injurious to the client’s
1262 condition. The court may appoint a general or special magistrate
1263 to preside at the hearing. The client or the client’s guardian,
1264 and the representative, shall be provided with a copy of the
1265 petition and the date, time, and location of the hearing. The
1266 client has the right to have an attorney represent him or her at
1267 the hearing, and, if the client is indigent, the court shall
1268 appoint the office of the public defender to represent the
1269 client at the hearing. The client may testify or not, as he or
1270 she chooses, and has the right to cross-examine witnesses and
1271 may present his or her own witnesses.
1272 Section 30. The Division of Statutory Revision is requested
1273 to rename part III of chapter 916, Florida Statutes, consisting
1274 of ss. 916.301-916.304, as “Forensic Services for Persons who
1275 are Intellectually Disabled or Autistic.”
1276 Section 31. Subsections (1) and (2) of section 916.301,
1277 Florida Statutes, are amended to read:
1278 916.301 Appointment of experts.—
1279 (1) All evaluations ordered by the court under this part
1280 must be conducted by qualified experts who have expertise in
1281 evaluating persons who have an intellectual disability with
1282 retardation or autism. The agency shall maintain and provide the
1283 courts annually with a list of available retardation and autism
1284 professionals who are appropriately licensed and qualified to
1285 perform evaluations of defendants alleged to be incompetent to
1286 proceed due to intellectual disability retardation or autism.
1287 The courts may use professionals from this list when appointing
1288 experts and ordering evaluations under this part.
1289 (2) If a defendant’s suspected mental condition is
1290 intellectual disability retardation or autism, the court shall
1291 appoint the following:
1292 (a) At least one, or at the request of any party, two
1293 experts to evaluate whether the defendant meets the definition
1294 of intellectual disability retardation or autism and, if so,
1295 whether the defendant is competent to proceed; and
1296 (b) A psychologist selected by the agency who is licensed
1297 or authorized by law to practice in this state, with experience
1298 in evaluating persons suspected of having an intellectual
1299 disability retardation or autism, and a social service
1300 professional, with experience in working with persons who have
1301 an intellectual disability with retardation or autism.
1302 1. The psychologist shall evaluate whether the defendant
1303 meets the definition of intellectual disability retardation or
1304 autism and, if so, whether the defendant is incompetent to
1305 proceed due to intellectual disability retardation or autism.
1306 2. The social service professional shall provide a social
1307 and developmental history of the defendant.
1308 Section 32. Subsections (1), (2), and (4) of section
1309 916.3012, Florida Statutes, are amended to read:
1310 916.3012 Mental competence to proceed.—
1311 (1) A defendant whose suspected mental condition is
1312 intellectual disability retardation or autism is incompetent to
1313 proceed within the meaning of this chapter if the defendant does
1314 not have sufficient present ability to consult with the
1315 defendant’s lawyer with a reasonable degree of rational
1316 understanding or if the defendant has no rational, as well as
1317 factual, understanding of the proceedings against the defendant.
1318 (2) Experts in intellectual disability retardation or
1319 autism appointed pursuant to s. 916.301 shall first consider
1320 whether the defendant meets the definition of intellectual
1321 disability retardation or autism and, if so, consider the
1322 factors related to the issue of whether the defendant meets the
1323 criteria for competence to proceed as described in subsection
1324 (1).
1325 (4) If the experts should find that the defendant is
1326 incompetent to proceed, the experts shall report on any
1327 recommended training for the defendant to attain competence to
1328 proceed. In considering the issues relating to training, the
1329 examining experts shall specifically report on:
1330 (a) The intellectual disability retardation or autism
1331 causing the incompetence;
1332 (b) The training appropriate for the intellectual
1333 disability retardation or autism of the defendant and an
1334 explanation of each of the possible training alternatives in
1335 order of choices;
1336 (c) The availability of acceptable training and, if
1337 training is available in the community, the expert shall so
1338 state in the report; and
1339 (d) The likelihood of the defendant’s attaining competence
1340 under the training recommended, an assessment of the probable
1341 duration of the training required to restore competence, and the
1342 probability that the defendant will attain competence to proceed
1343 in the foreseeable future.
1344 Section 33. Subsection (1), paragraphs (a) and (b) of
1345 subsection (2), and paragraph (a) of subsection (3) of section
1346 916.302, Florida Statutes, are amended to read:
1347 916.302 Involuntary commitment of defendant determined to
1348 be incompetent to proceed.—
1349 (1) CRITERIA.—Every defendant who is charged with a felony
1350 and who is adjudicated incompetent to proceed due to
1351 intellectual disability retardation or autism may be
1352 involuntarily committed for training upon a finding by the court
1353 of clear and convincing evidence that:
1354 (a) The defendant has an intellectual disability
1355 retardation or autism;
1356 (b) There is a substantial likelihood that in the near
1357 future the defendant will inflict serious bodily harm on himself
1358 or herself or another person, as evidenced by recent behavior
1359 causing, attempting, or threatening such harm;
1360 (c) All available, less restrictive alternatives, including
1361 services provided in community residential facilities or other
1362 community settings, which would offer an opportunity for
1363 improvement of the condition have been judged to be
1364 inappropriate; and
1365 (d) There is a substantial probability that the
1366 intellectual disability retardation or autism causing the
1367 defendant’s incompetence will respond to training and the
1368 defendant will regain competency to proceed in the reasonably
1369 foreseeable future.
1370 (2) ADMISSION TO A FACILITY.—
1371 (a) A defendant who has been charged with a felony and who
1372 is found to be incompetent to proceed due to intellectual
1373 disability retardation or autism, and who meets the criteria for
1374 involuntary commitment to the agency under the provisions of
1375 this chapter, shall be committed to the agency, and the agency
1376 shall retain and provide appropriate training for the defendant.
1377 Within No later than 6 months after the date of admission or at
1378 the end of any period of extended commitment or at any time the
1379 administrator or designee determines shall have determined that
1380 the defendant has regained competency to proceed or no longer
1381 meets the criteria for continued commitment, the administrator
1382 or designee shall file a report with the court pursuant to this
1383 chapter and the applicable Florida Rules of Criminal Procedure.
1384 (b) A defendant determined to be incompetent to proceed due
1385 to intellectual disability retardation or autism may be ordered
1386 by a circuit court into a forensic facility designated by the
1387 agency for defendants who have an intellectual disability mental
1388 retardation or autism.
1389 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
1390 (a) If a defendant has both an intellectual disability
1391 mental retardation or autism and has a mental illness,
1392 evaluations must address which condition is primarily affecting
1393 the defendant’s competency to proceed. Referral of the defendant
1394 should be made to a civil or forensic facility most appropriate
1395 to address the symptoms that are the cause of the defendant’s
1396 incompetence.
1397 Section 34. Subsection (1) of section 916.3025, Florida
1398 Statutes, is amended to read:
1399 916.3025 Jurisdiction of committing court.—
1400 (1) The committing court shall retain jurisdiction in the
1401 case of any defendant found to be incompetent to proceed due to
1402 intellectual disability retardation or autism and ordered into a
1403 forensic facility designated by the agency for defendants who
1404 have intellectual disabilities mental retardation or autism. A
1405 defendant may not be released except by the order of the
1406 committing court. An administrative hearing examiner does not
1407 have jurisdiction to determine issues of continuing commitment
1408 or release of any defendant involuntarily committed pursuant to
1409 this chapter.
1410 Section 35. Section 916.303, Florida Statutes, is amended
1411 to read:
1412 916.303 Determination of incompetency due to retardation or
1413 autism; dismissal of charges.—
1414 (1) The charges against any defendant found to be
1415 incompetent to proceed due to intellectual disability
1416 retardation or autism shall be dismissed without prejudice to
1417 the state if the defendant remains incompetent to proceed within
1418 a reasonable time after such determination, not to exceed 2
1419 years, unless the court in its order specifies its reasons for
1420 believing that the defendant will become competent to proceed
1421 within the foreseeable future and specifies the time within
1422 which the defendant is expected to become competent to proceed.
1423 The charges may be refiled by the state if the defendant is
1424 declared competent to proceed in the future.
1425 (2) If the charges are dismissed and if the defendant is
1426 considered to lack sufficient capacity to give express and
1427 informed consent to a voluntary application for services and
1428 lacks the basic survival and self-care skills to provide for his
1429 or her well-being or is likely to physically injure himself or
1430 herself or others if allowed to remain at liberty, the agency,
1431 the state attorney, or the defendant’s attorney shall apply to
1432 the committing court to involuntarily admit the defendant to
1433 residential services pursuant to s. 393.11.
1434 (3) If the defendant is considered to need involuntary
1435 residential services for reasons described in subsection (2)
1436 and, further, there is a substantial likelihood that the
1437 defendant will injure another person or continues to present a
1438 danger of escape, and all available less restrictive
1439 alternatives, including services in community residential
1440 facilities or other community settings, which would offer an
1441 opportunity for improvement of the condition have been judged to
1442 be inappropriate, the agency, the state attorney, or the
1443 defendant’s counsel may request the committing court to continue
1444 the defendant’s placement in a secure facility pursuant to this
1445 part. Any placement so continued under this subsection must be
1446 reviewed by the court at least annually at a hearing. The annual
1447 review and hearing must shall determine whether the defendant
1448 continues to meet the criteria described in this subsection and,
1449 if so, whether the defendant still requires involuntary
1450 placement in a secure facility and whether the defendant is
1451 receiving adequate care, treatment, habilitation, and
1452 rehabilitation, including psychotropic medication and behavioral
1453 programming. Notice of the annual review and review hearing
1454 shall be given to the state attorney and the defendant’s
1455 attorney. In no instance may A defendant’s placement in a secure
1456 facility may not exceed the maximum sentence for the crime for
1457 which the defendant was charged.
1458 Section 36. Subsection (1) of section 916.304, Florida
1459 Statutes, is amended to read:
1460 916.304 Conditional release.—
1461 (1) Except for an inmate currently serving a prison
1462 sentence, the committing court may order a conditional release
1463 of any defendant who has been found to be incompetent to proceed
1464 due to intellectual disability retardation or autism, based on
1465 an approved plan for providing community-based training. The
1466 committing criminal court may order a conditional release of any
1467 defendant to a civil facility in lieu of an involuntary
1468 commitment to a forensic facility pursuant to s. 916.302. Upon a
1469 recommendation that community-based training for the defendant
1470 is appropriate, a written plan for community-based training,
1471 including recommendations from qualified professionals, may be
1472 filed with the court, with copies to all parties. Such a plan
1473 may also be submitted by the defendant and filed with the court,
1474 with copies to all parties. The plan must include:
1475 (a) Special provisions for residential care and adequate
1476 supervision of the defendant, including recommended location of
1477 placement.
1478 (b) Recommendations for auxiliary services such as
1479 vocational training, psychological training, educational
1480 services, leisure services, and special medical care.
1481
1482 In its order of conditional release, the court shall specify the
1483 conditions of release based upon the release plan and shall
1484 direct the appropriate agencies or persons to submit periodic
1485 reports to the courts regarding the defendant’s compliance with
1486 the conditions of the release and progress in training, with
1487 copies to all parties.
1488 Section 37. Subsection (1) of section 918.16, Florida
1489 Statutes, is amended to read:
1490 918.16 Sex offenses; testimony of person under age 16 or
1491 person with mental retardation; testimony of victim; courtroom
1492 cleared; exceptions.—
1493 (1) Except as provided in subsection (2), in the trial of
1494 any case, civil or criminal, when any person under the age of 16
1495 or any person with intellectual disability mental retardation as
1496 defined in s. 393.063 is testifying concerning any sex offense,
1497 the court shall clear the courtroom of all persons except
1498 parties to the cause and their immediate families or guardians,
1499 attorneys and their secretaries, officers of the court, jurors,
1500 newspaper reporters or broadcasters, court reporters, and, at
1501 the request of the victim, victim or witness advocates
1502 designated by the state attorney’s office.
1503 Section 38. Section 921.137, Florida Statutes, is amended
1504 to read:
1505 921.137 Imposition of the death sentence upon an
1506 intellectually disabled a defendant with mental retardation
1507 prohibited.—
1508 (1) As used in this section, the term “intellectually
1509 disabled” or “intellectual disability” “mental retardation”
1510 means significantly subaverage general intellectual functioning
1511 existing concurrently with deficits in adaptive behavior and
1512 manifested during the period from conception to age 18. The term
1513 “significantly subaverage general intellectual functioning,” for
1514 the purpose of this section, means performance that is two or
1515 more standard deviations from the mean score on a standardized
1516 intelligence test specified in the rules of the Agency for
1517 Persons with Disabilities. The term “adaptive behavior,” for the
1518 purpose of this definition, means the effectiveness or degree
1519 with which an individual meets the standards of personal
1520 independence and social responsibility expected of his or her
1521 age, cultural group, and community. The Agency for Persons with
1522 Disabilities shall adopt rules to specify the standardized
1523 intelligence tests as provided in this subsection.
1524 (2) A sentence of death may not be imposed upon a defendant
1525 convicted of a capital felony if it is determined in accordance
1526 with this section that the defendant is intellectually disabled
1527 has mental retardation.
1528 (3) A defendant charged with a capital felony who intends
1529 to raise intellectual disability mental retardation as a bar to
1530 the death sentence must give notice of such intention in
1531 accordance with the rules of court governing notices of intent
1532 to offer expert testimony regarding mental health mitigation
1533 during the penalty phase of a capital trial.
1534 (4) After a defendant who has given notice of his or her
1535 intention to raise intellectual disability mental retardation as
1536 a bar to the death sentence is convicted of a capital felony and
1537 an advisory jury has returned a recommended sentence of death,
1538 the defendant may file a motion to determine whether the
1539 defendant is intellectually disabled has mental retardation.
1540 Upon receipt of the motion, the court shall appoint two experts
1541 in the field of intellectual disabilities mental retardation who
1542 shall evaluate the defendant and report their findings to the
1543 court and all interested parties prior to the final sentencing
1544 hearing. Notwithstanding s. 921.141 or s. 921.142, the final
1545 sentencing hearing shall be held without a jury. At the final
1546 sentencing hearing, the court shall consider the findings of the
1547 court-appointed experts and consider the findings of any other
1548 expert which is offered by the state or the defense on the issue
1549 of whether the defendant has an intellectual disability mental
1550 retardation. If the court finds, by clear and convincing
1551 evidence, that the defendant has an intellectual disability
1552 mental retardation as defined in subsection (1), the court may
1553 not impose a sentence of death and shall enter a written order
1554 that sets forth with specificity the findings in support of the
1555 determination.
1556 (5) If a defendant waives his or her right to a recommended
1557 sentence by an advisory jury following a plea of guilt or nolo
1558 contendere to a capital felony and adjudication of guilt by the
1559 court, or following a jury finding of guilt of a capital felony,
1560 upon acceptance of the waiver by the court, a defendant who has
1561 given notice as required in subsection (3) may file a motion for
1562 a determination of intellectual disability mental retardation.
1563 Upon granting the motion, the court shall proceed as provided in
1564 subsection (4).
1565 (6) If, following a recommendation by an advisory jury that
1566 the defendant be sentenced to life imprisonment, the state
1567 intends to request the court to order that the defendant be
1568 sentenced to death, the state must inform the defendant of such
1569 request if the defendant has notified the court of his or her
1570 intent to raise intellectual disability mental retardation as a
1571 bar to the death sentence. After receipt of the notice from the
1572 state, the defendant may file a motion requesting a
1573 determination by the court of whether the defendant is
1574 intellectually disabled has mental retardation. Upon granting
1575 the motion, the court shall proceed as provided in subsection
1576 (4).
1577 (7) Pursuant to s. 924.07, the state may appeal, pursuant
1578 to s. 924.07, a determination of intellectual disability mental
1579 retardation made under subsection (4).
1580 (8) This section does not apply to a defendant who was
1581 sentenced to death before June 12, 2001 prior to the effective
1582 date of this act.
1583 (9) For purposes of the application of the criminal laws
1584 and procedural rules of this state to any matters relating to
1585 the imposition and execution of the death penalty, the terms
1586 “intellectual disability” or “intellectually disabled” are
1587 interchangeable with and have the same meaning as the terms
1588 “mental retardation” or “retardation” and “mentally retarded” as
1589 those terms were defined before July 1, 2011.
1590 Section 39. Paragraph (b) of subsection (2) of section
1591 941.38, Florida Statutes, is amended to read:
1592 941.38 Extradition of persons alleged to be of unsound
1593 mind.—
1594 (2) For the purpose of this section:
1595 (b) A “mentally incompetent person” is one who because of
1596 mental illness, intellectual disability mental retardation,
1597 senility, excessive use of drugs or alcohol, or other mental
1598 incapacity is incapable of either managing his or her property
1599 or caring for himself or herself or both.
1600 Section 40. Section 944.602, Florida Statutes, is amended
1601 to read:
1602 944.602 Agency notification before release of
1603 intellectually disabled mentally retarded inmates.—Before the
1604 release by parole, release by reason of gain-time allowances
1605 provided for in s. 944.291, or expiration of sentence of any
1606 inmate who has been diagnosed as having an intellectual
1607 disability mentally retarded as defined in s. 393.063, the
1608 Department of Corrections shall notify the Agency for Persons
1609 with Disabilities in order that sufficient time be allowed to
1610 notify the inmate or the inmate’s representative, in writing, at
1611 least 7 days before prior to the inmate’s release, of available
1612 community services.
1613 Section 41. Subsection (2) of section 945.025, Florida
1614 Statutes, is amended to read:
1615 945.025 Jurisdiction of department.—
1616 (2) In establishing, operating, and using utilizing these
1617 facilities, the department shall attempt, whenever possible, to
1618 avoid the placement of nondangerous offenders who have potential
1619 for rehabilitation with repeat offenders or dangerous offenders.
1620 Medical, mental, and psychological problems must shall be
1621 diagnosed and treated whenever possible. The Department of
1622 Children and Family Services and the Agency for Persons with
1623 Disabilities shall cooperate to ensure the delivery of services
1624 to persons under the custody or supervision of the department.
1625 If When it is the intent of the department intends to transfer a
1626 mentally ill or retarded prisoner who has a mental illness or
1627 intellectual disability to the Department of Children and Family
1628 Services or the Agency for Persons with Disabilities, an
1629 involuntary commitment hearing shall be held in accordance with
1630 according to the provisions of chapter 393 or chapter 394.
1631 Section 42. Subsection (5) of section 945.12, Florida
1632 Statutes, is amended to read:
1633 945.12 Transfers for rehabilitative treatment.—
1634 (5) When the department plans to release a mentally ill or
1635 intellectually disabled retarded offender, an involuntary
1636 commitment hearing shall be held as soon as possible before
1637 prior to his or her release in accordance with, according to the
1638 provisions of chapter 393 or chapter 394.
1639 Section 43. Subsection (9) of section 945.42, Florida
1640 Statutes, is amended to read:
1641 945.42 Definitions; ss. 945.40-945.49.—As used in ss.
1642 945.40-945.49, the following terms shall have the meanings
1643 ascribed to them, unless the context shall clearly indicate
1644 otherwise:
1645 (9) “Mentally ill” means an impairment of the mental or
1646 emotional processes that, of the ability to exercise conscious
1647 control of one’s actions, or of the ability to perceive or
1648 understand reality, which impairment substantially interferes
1649 with the a person’s ability to meet the ordinary demands of
1650 living. However, regardless of etiology, except that, for the
1651 purposes of transferring transfer of an inmate to a mental
1652 health treatment facility, the term does not include a
1653 retardation or developmental disability as defined in chapter
1654 393, simple intoxication, or conditions manifested only by
1655 antisocial behavior or substance abuse addiction. However, an
1656 individual who is mentally retarded or developmentally disabled
1657 may also have a mental illness.
1658 Section 44. Section 947.185, Florida Statutes, is amended
1659 to read:
1660 947.185 Application for intellectual disability mental
1661 retardation services as condition of parole.—The Parole
1662 Commission may require as a condition of parole that any inmate
1663 who has been diagnosed as having an intellectual disability
1664 mentally retarded as defined in s. 393.063 shall, upon release,
1665 apply for services from the Agency for Persons with
1666 Disabilities.
1667 Section 45. Subsection (4) of section 984.19, Florida
1668 Statutes, is amended to read:
1669 984.19 Medical screening and treatment of child;
1670 examination of parent, guardian, or person requesting custody.—
1671 (4) A judge may order that a child alleged to be or
1672 adjudicated a child in need of services be treated by a licensed
1673 health care professional. The judge may also order such child to
1674 receive mental health or intellectual disability retardation
1675 services from a psychiatrist, psychologist, or other appropriate
1676 service provider. If it is necessary to place the child in a
1677 residential facility for such services, then the procedures and
1678 criteria established in s. 394.467 or chapter 393 shall be used,
1679 as whichever is applicable. A child may be provided mental
1680 health or retardation services in emergency situations, pursuant
1681 to the procedures and criteria contained in s. 394.463(1) or
1682 chapter 393, as whichever is applicable.
1683 Section 46. Paragraph (a) of subsection (3) of section
1684 985.14, Florida Statutes, is amended to read:
1685 985.14 Intake and case management system.—
1686 (3) The intake and case management system shall facilitate
1687 consistency in the recommended placement of each child, and in
1688 the assessment, classification, and placement process, with the
1689 following purposes:
1690 (a) An individualized, multidisciplinary assessment process
1691 that identifies the priority needs of each individual child for
1692 rehabilitation and treatment and identifies any needs of the
1693 child’s parents or guardians for services that would enhance
1694 their ability to provide adequate support, guidance, and
1695 supervision for the child. This process begins shall begin with
1696 the detention risk assessment instrument and decision, includes
1697 shall include the intake preliminary screening and comprehensive
1698 assessment for substance abuse treatment services, mental health
1699 services, intellectual disability retardation services, literacy
1700 services, and other educational and treatment services as
1701 components, additional assessment of the child’s treatment
1702 needs, and classification regarding the child’s risks to the
1703 community and, for a serious or habitual delinquent child,
1704 includes shall include the assessment for placement in a serious
1705 or habitual delinquent children program under s. 985.47. The
1706 completed multidisciplinary assessment process must shall result
1707 in the predisposition report.
1708 Section 47. Paragraph (g) of subsection (1) and subsection
1709 (5) of section 985.145, Florida Statutes, are amended to read:
1710 985.145 Responsibilities of juvenile probation officer
1711 during intake; screenings and assessments.—
1712 (1) The juvenile probation officer shall serve as the
1713 primary case manager for the purpose of managing, coordinating,
1714 and monitoring the services provided to the child. Each program
1715 administrator within the Department of Children and Family
1716 Services shall cooperate with the primary case manager in
1717 carrying out the duties and responsibilities described in this
1718 section. In addition to duties specified in other sections and
1719 through departmental rules, the assigned juvenile probation
1720 officer shall be responsible for the following:
1721 (g) Comprehensive assessment.—The juvenile probation
1722 officer, pursuant to uniform procedures established by the
1723 department and upon determining that the report, affidavit, or
1724 complaint is complete, shall:
1725 1. Perform the preliminary screening and make referrals for
1726 a comprehensive assessment regarding the child’s need for
1727 substance abuse treatment services, mental health services,
1728 intellectual disability retardation services, literacy services,
1729 or other educational or treatment services.
1730 2. If When indicated by the preliminary screening, provide
1731 for a comprehensive assessment of the child and family for
1732 substance abuse problems, using community-based licensed
1733 programs with clinical expertise and experience in the
1734 assessment of substance abuse problems.
1735 3. If When indicated by the preliminary screening, provide
1736 for a comprehensive assessment of the child and family for
1737 mental health problems, using community-based psychologists,
1738 psychiatrists, or other licensed mental health professionals who
1739 have clinical expertise and experience in the assessment of
1740 mental health problems.
1741 (5) If the screening and assessment indicate that the
1742 interests of the child and the public will be best served
1743 thereby, the juvenile probation officer, with the approval of
1744 the state attorney, may refer the child for care, diagnostic,
1745 and evaluation services; substance abuse treatment services;
1746 mental health services; intellectual disability retardation
1747 services; a diversionary, arbitration, or mediation program;
1748 community service work; or other programs or treatment services
1749 voluntarily accepted by the child and the child’s parents or
1750 legal guardian. If Whenever a child volunteers to participate in
1751 any work program under this chapter or volunteers to work in a
1752 specified state, county, municipal, or community service
1753 organization supervised work program or to work for the victim,
1754 the child is shall be considered an employee of the state for
1755 the purposes of liability. In determining the child’s average
1756 weekly wage, unless otherwise determined by a specific funding
1757 program, all remuneration received from the employer is
1758 considered a gratuity, and the child is not entitled to any
1759 benefits otherwise payable under s. 440.15, regardless of
1760 whether the child may be receiving wages and remuneration from
1761 other employment with another employer and regardless of the
1762 child’s future wage-earning capacity.
1763 Section 48. Subsections (2) and (6) of section 985.18,
1764 Florida Statutes, are amended to read:
1765 985.18 Medical, psychiatric, psychological, substance
1766 abuse, and educational examination and treatment.—
1767 (2) If Whenever a child has been found to have committed a
1768 delinquent act, or before such finding with the consent of any
1769 parent or legal custodian of the child, the court may order the
1770 child to be treated by a physician. The court may also order the
1771 child to receive mental health, substance abuse, or intellectual
1772 disability retardation services from a psychiatrist,
1773 psychologist, or other appropriate service provider. If it is
1774 necessary to place the child in a residential facility for such
1775 services, the procedures and criteria established in chapter
1776 393, chapter 394, or chapter 397, as whichever is applicable,
1777 must shall be used. After a child has been adjudicated
1778 delinquent, if an educational needs assessment by the district
1779 school board or the Department of Children and Family Services
1780 has been previously conducted, the court shall order the report
1781 of such needs assessment included in the child’s court record in
1782 lieu of a new assessment. For purposes of this section, an
1783 educational needs assessment includes, but is not limited to,
1784 reports of intelligence and achievement tests, screening for
1785 learning and other disabilities and other handicaps, and
1786 screening for the need for alternative education.
1787 (6) A physician must shall be immediately notified by the
1788 person taking the child into custody or the person having
1789 custody if there are indications of physical injury or illness,
1790 or the child shall be taken to the nearest available hospital
1791 for emergency care. A child may be provided mental health,
1792 substance abuse, or intellectual disability retardation
1793 services, in emergency situations, pursuant to chapter 393,
1794 chapter 394, or chapter 397, as whichever is applicable. After a
1795 hearing, the court may order the custodial parent or parents,
1796 guardian, or other custodian, if found able to do so, to
1797 reimburse the county or state for the expense involved in such
1798 emergency treatment or care.
1799 Section 49. Paragraph (e) of subsection (1), subsections
1800 (2) through (4), and paragraph (a) of subsection (6) of section
1801 985.19, Florida Statutes, are amended to read:
1802 985.19 Incompetency in juvenile delinquency cases.—
1803 (1) If, at any time prior to or during a delinquency case,
1804 the court has reason to believe that the child named in the
1805 petition may be incompetent to proceed with the hearing, the
1806 court on its own motion may, or on the motion of the child’s
1807 attorney or state attorney must, stay all proceedings and order
1808 an evaluation of the child’s mental condition.
1809 (e) For incompetency evaluations related to intellectual
1810 disability mental retardation or autism, the court shall order
1811 the Agency for Persons with Disabilities to examine the child to
1812 determine if the child meets the definition of “intellectual
1813 disability” “retardation” or “autism” in s. 393.063 and, if so,
1814 whether the child is competent to proceed with delinquency
1815 proceedings.
1816 (2) A child who is adjudicated incompetent to proceed, and
1817 who has committed a delinquent act or violation of law, either
1818 of which would be a felony if committed by an adult, must be
1819 committed to the Department of Children and Family Services for
1820 treatment or training. A child who has been adjudicated
1821 incompetent to proceed because of age or immaturity, or for any
1822 reason other than for mental illness, intellectual disability,
1823 or retardation or autism, must not be committed to the
1824 department or to the Department of Children and Family Services
1825 for restoration-of-competency treatment or training services.
1826 For purposes of this section, a child who has committed a
1827 delinquent act or violation of law, either of which would be a
1828 misdemeanor if committed by an adult, may not be committed to
1829 the department or to the Department of Children and Family
1830 Services for restoration-of-competency treatment or training
1831 services.
1832 (3) If the court finds that a child has mental illness,
1833 intellectual disability mental retardation, or autism and
1834 adjudicates the child incompetent to proceed, the court must
1835 also determine whether the child meets the criteria for secure
1836 placement. A child may be placed in a secure facility or program
1837 if the court makes a finding by clear and convincing evidence
1838 that:
1839 (a) The child has mental illness, intellectual disability
1840 mental retardation, or autism and because of the mental illness,
1841 intellectual disability mental retardation, or autism:
1842 1. The child is manifestly incapable of surviving with the
1843 help of willing and responsible family or friends, including
1844 available alternative services, and without treatment or
1845 training the child is likely to either suffer from neglect or
1846 refuse to care for self, and such neglect or refusal poses a
1847 real and present threat of substantial harm to the child’s well
1848 being; or
1849 2. There is a substantial likelihood that in the near
1850 future the child will inflict serious bodily harm on self or
1851 others, as evidenced by recent behavior causing, attempting, or
1852 threatening such harm; and
1853 (b) All available less restrictive alternatives, including
1854 treatment or training in community residential facilities or
1855 community settings which would offer an opportunity for
1856 improvement of the child’s condition, are inappropriate.
1857 (4) A child who is determined to have mental illness,
1858 intellectual disability mental retardation, or autism, who has
1859 been adjudicated incompetent to proceed, and who meets the
1860 criteria set forth in subsection (3), must be committed to the
1861 Department of Children and Family Services and receive treatment
1862 or training in a secure facility or program that is the least
1863 restrictive alternative consistent with public safety. Any
1864 placement of a child to a secure residential program must be
1865 separate from adult forensic programs. If the child attains
1866 competency, then custody, case management, and supervision of
1867 the child shall will be transferred to the department in order
1868 to continue delinquency proceedings; however, the court retains
1869 authority to order the Department of Children and Family
1870 Services to provide continued treatment or training to maintain
1871 competency.
1872 (a) A child adjudicated incompetent due to intellectual
1873 disability mental retardation or autism may be ordered into a
1874 secure program or facility designated by the Department of
1875 Children and Family Services for children who have intellectual
1876 disabilities with mental retardation or autism.
1877 (b) A child adjudicated incompetent due to mental illness
1878 may be ordered into a secure program or facility designated by
1879 the Department of Children and Family Services for children
1880 having mental illnesses.
1881 (c) If Whenever a child is placed in a secure residential
1882 facility, the department shall will provide transportation to
1883 the secure residential facility for admission and from the
1884 secure residential facility upon discharge.
1885 (d) The purpose of the treatment or training is the
1886 restoration of the child’s competency to proceed.
1887 (e) The service provider must file a written report with
1888 the court pursuant to the applicable Florida Rules of Juvenile
1889 Procedure within not later than 6 months after the date of
1890 commitment, or at the end of any period of extended treatment or
1891 training, and at any time the Department of Children and Family
1892 Services, through its service provider, determines the child has
1893 attained competency or no longer meets the criteria for secure
1894 placement, or at such shorter intervals as ordered by the court.
1895 A copy of a written report evaluating the child’s competency
1896 must be filed by the provider with the court and with the state
1897 attorney, the child’s attorney, the department, and the
1898 Department of Children and Family Services.
1899 (6)(a) If a child is determined to have mental illness,
1900 intellectual disability mental retardation, or autism and is
1901 found to be incompetent to proceed but does not meet the
1902 criteria set forth in subsection (3), the court shall commit the
1903 child to the Department of Children and Family Services and
1904 shall order the Department of Children and Family Services to
1905 provide appropriate treatment and training in the community. The
1906 purpose of the treatment or training is the restoration of the
1907 child’s competency to proceed.
1908 Section 50. Section 985.195, Florida Statutes, is amended
1909 to read:
1910 985.195 Transfer to other treatment services.—Any child
1911 committed to the department may be transferred to intellectual
1912 disability retardation, mental health, or substance abuse
1913 treatment facilities for diagnosis and evaluation pursuant to
1914 chapter 393, chapter 394, or chapter 397, as whichever is
1915 applicable, for up to a period not to exceed 90 days.
1916 Section 51. Paragraph (b) of subsection (1) of section
1917 985.61, Florida Statutes, is amended to read:
1918 985.61 Early delinquency intervention program; criteria.—
1919 (1) The Department of Juvenile Justice shall, contingent
1920 upon specific appropriation and with the cooperation of local
1921 law enforcement agencies, the judiciary, district school board
1922 personnel, the office of the state attorney, the office of the
1923 public defender, the Department of Children and Family Services,
1924 and community service agencies that work with children,
1925 establish an early delinquency intervention program, the
1926 components of which shall include, but not be limited to:
1927 (b) Treatment modalities, including substance abuse
1928 treatment services, mental health services, and retardation
1929 services for intellectual disabilities.
1930 Section 52. It is the intent of the Legislature that this
1931 act not expand or contract the scope or application of any
1932 provision of the Florida Statutes. This act may not be construed
1933 to change the application of any provision of the Florida
1934 Statutes to any person.
1935 Section 53. This act shall take effect July 1, 2011.
