Florida Senate - 2012                                     SB 460
       
       
       
       By Senator Altman
       
       
       
       
       24-00003-12                                            2012460__
    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 the of testimony of a victim or witness
   97  under age 16 or who has an intellectual disability person with
   98  mental 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 during with mental retardation throughout proceedings
  148  conducted under this section.
  149         (6) The motion referred to in subsection (1) may be made at
  150  any time with reasonable notice to each party to the cause, and
  151  videotaping of testimony may be made any time after the court
  152  grants the motion. The videotaped testimony 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 must shall be provided by any
  201  appropriate electronic method.
  202         (5) The court shall make specific findings of fact, on the
  203  record, as to the basis for its ruling under this section.
  204         Section 6. Section 92.55, Florida Statutes, is amended to
  205  read:
  206         92.55 Judicial or other proceedings involving victim or
  207  witness under the age of 16 or person who has an intellectual
  208  disability with mental retardation; special protections; use of
  209  registered service or therapy animals.—
  210         (1) Upon motion of any party, upon motion of a parent,
  211  guardian, attorney, or guardian ad litem for a victim or witness
  212  child under the age of 16 or person who has an intellectual
  213  disability with mental retardation, or upon its own motion, the
  214  court may enter any order necessary to protect such a child
  215  under the age of 16 or person with mental retardation who is a
  216  victim or witness in any judicial proceeding or other official
  217  proceeding from severe emotional or mental harm due to the
  218  presence of the defendant if the victim or witness child or
  219  person with mental retardation is required to testify in open
  220  court. Such orders must shall relate to the taking of testimony
  221  and shall include, but are not be limited to:
  222         (a) Interviewing or the taking of depositions as part of a
  223  civil or criminal proceeding.
  224         (b) Examination and cross-examination for the purpose of
  225  qualifying as a witness or testifying in any proceeding.
  226         (c) The use of testimony taken outside of the courtroom,
  227  including proceedings under ss. 92.53 and 92.54.
  228         (2) In ruling upon the motion, the court shall consider
  229  take into consideration:
  230         (a) The age of the child, the nature of the offense or act,
  231  the relationship of the child to the parties in the case or to
  232  the defendant in a criminal action, the degree of emotional
  233  trauma that will result to the child as a consequence of the
  234  defendant’s presence, and any other fact that the court deems
  235  relevant; or
  236         (b) The age of the person who has an intellectual
  237  disability with mental retardation, the functional capacity of
  238  such the person with mental retardation, the nature of the
  239  offenses or act, the relationship of the person with mental
  240  retardation to the parties in the case or to the defendant in a
  241  criminal action, the degree of emotional trauma that will result
  242  to the person with mental retardation as a consequence of the
  243  defendant’s presence, and any other fact that the court deems
  244  relevant.
  245         (3) In addition to such other relief as is provided by law,
  246  the court may enter orders limiting the number of times that a
  247  child or a person who has an intellectual disability with mental
  248  retardation may be interviewed, prohibiting depositions of such
  249  a child or person with mental retardation, requiring the
  250  submission of questions before the prior to examination of the a
  251  child or person with mental retardation, setting the place and
  252  conditions for interviewing the a child or person with mental
  253  retardation or for conducting any other proceeding, or
  254  permitting or prohibiting the attendance of any person at any
  255  proceeding. The court shall enter any order necessary to protect
  256  the rights of all parties, including the defendant in any
  257  criminal action.
  258         (4) The court may set any other conditions it finds just
  259  and appropriate when on the taking the of testimony of by a
  260  child, including the use of a service or therapy animal that has
  261  been evaluated and registered according to national standards,
  262  in any proceeding involving a sexual offense. When deciding
  263  whether to permit a child to testify with the assistance of a
  264  registered service or therapy animal, the court shall consider
  265  take into consideration the age of the child, the interests of
  266  the child, the rights of the parties to the litigation, and any
  267  other relevant factor that would facilitate the testimony by the
  268  child.
  269         Section 7. Subsection (1) of section 320.10, Florida
  270  Statutes, is amended to read:
  271         320.10 Exemptions.—
  272         (1) The provisions of s. 320.08 do not apply to:
  273         (a) Any motor vehicle or mobile home owned by, and operated
  274  exclusively for the personal use of, any member of the United
  275  States Armed Forces who is not a resident of this state and who
  276  is stationed in the state while in compliance with military or
  277  naval orders;
  278         (b) Any motor vehicle owned or operated exclusively by the
  279  Federal Government;
  280         (c) Any motor vehicle owned and operated exclusively for
  281  the benefit of the Boys’ Clubs of America, the National Audubon
  282  Society, the National Children’s Cardiac Hospital, any humane
  283  society, any nationally chartered veterans’ organization that
  284  maintains a state headquarters in this state, the Children’s
  285  Bible Mission, the Boy Scouts of America, the Girl Scouts of
  286  America, the Salvation Army, the American National Red Cross,
  287  the United Service Organization, any local member unit of the
  288  National Urban League which provides free services to municipal
  289  and county residents who are in need of such services, the Young
  290  Men’s Christian Association, the Young Men’s Hebrew Association,
  291  the Camp Fire Girls’ Council, the Young Women’s Christian
  292  Association, the Young Women’s Hebrew Association, any local
  293  member unit of the Arc of Florida Association for Retarded
  294  Citizens, the Children’s Home Society of Florida, or the
  295  Goodwill Industries. A not-for-profit organization named in this
  296  paragraph and its local affiliate organizations is shall be
  297  eligible for the exemption if it for so long as each maintains
  298  current articles of incorporation on file with the Department of
  299  State and qualifies as a not-for-profit organization under s.
  300  212.08;
  301         (d) Any motor vehicle owned and operated by a church,
  302  temple, or synagogue for exclusive use as a community service
  303  van or to transport passengers without compensation to religious
  304  services or for religious education;
  305         (e) Any motor vehicle owned and operated by the Civil Air
  306  Patrol or the United States Coast Guard Auxiliary;
  307         (f) Any mobile blood bank unit when operated as a nonprofit
  308  service by an organization;
  309         (g) Any mobile X-ray unit or truck or bus used exclusively
  310  for public health purposes;
  311         (h) Any school bus owned and operated by a nonprofit
  312  educational or religious corporation;
  313         (i) Any vehicle used by any of the various search and
  314  rescue units of the several counties for exclusive use as a
  315  search and rescue vehicle; or and
  316         (j) Any motor vehicle used by a community transportation
  317  coordinator or a transportation operator as defined in part I of
  318  chapter 427, and which is used exclusively to transport
  319  transportation disadvantaged persons.
  320         Section 8. Paragraph (d) of subsection (3) of section
  321  383.14, Florida Statutes, is amended to read:
  322         383.14 Screening for metabolic disorders, other hereditary
  323  and congenital disorders, and environmental risk factors.—
  324         (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
  325  shall administer and provide certain services to implement the
  326  provisions of this section and shall:
  327         (d) Maintain a confidential registry of cases, including
  328  information of importance for the purpose of followup services
  329  to prevent intellectual disabilities mental retardation, to
  330  correct or ameliorate physical disabilities handicaps, and for
  331  epidemiologic studies, if indicated. Such registry shall be
  332  exempt from the provisions of s. 119.07(1).
  333  
  334  All provisions of this subsection must be coordinated with the
  335  provisions and plans established under this chapter, chapter
  336  411, and Pub. L. No. 99-457.
  337         Section 9. Subsection (9) and subsections (21) through (32)
  338  of section 393.063, Florida Statutes, are reordered and amended
  339  to read:
  340         393.063 Definitions.—For the purposes of this chapter, the
  341  term:
  342         (9) “Developmental disability” means a disorder or syndrome
  343  that is attributable to intellectual disability retardation,
  344  cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
  345  that manifests before the age of 18; and that constitutes a
  346  substantial handicap that can reasonably be expected to continue
  347  indefinitely.
  348         (22)(21) “Intermediate care facility for the
  349  developmentally disabled” or “ICF/DD” means a residential
  350  facility licensed and certified under pursuant to part VIII of
  351  chapter 400.
  352         (23)(22) “Medical/dental services” means medically
  353  necessary services that which are provided or ordered for a
  354  client by a person licensed under chapter 458, chapter 459, or
  355  chapter 466. Such services may include, but are not limited to,
  356  prescription drugs, specialized therapies, nursing supervision,
  357  hospitalization, dietary services, prosthetic devices, surgery,
  358  specialized equipment and supplies, adaptive equipment, and
  359  other services as required to prevent or alleviate a medical or
  360  dental condition.
  361         (24)(23) “Personal care services” means individual
  362  assistance with or supervision of essential activities of daily
  363  living for self-care, including ambulation, bathing, dressing,
  364  eating, grooming, and toileting, and other similar services that
  365  are incidental to the care furnished and essential to the
  366  health, safety, and welfare of the client if when there is no
  367  one else is available to perform those services.
  368         (25)(24) “Prader-Willi syndrome” means an inherited
  369  condition typified by neonatal hypotonia with failure to thrive,
  370  hyperphagia or an excessive drive to eat which leads to obesity
  371  usually at 18 to 36 months of age, mild to moderate intellectual
  372  disability mental retardation, hypogonadism, short stature, mild
  373  facial dysmorphism, and a characteristic neurobehavior.
  374         (26)(25) “Relative” means an individual who is connected by
  375  affinity or consanguinity to the client and who is 18 years of
  376  age or older.
  377         (27)(26) “Resident” means a any person who has a with
  378  developmental disability and resides disabilities residing at a
  379  residential facility, whether or not such person is a client of
  380  the agency.
  381         (28)(27) “Residential facility” means a facility providing
  382  room and board and personal care for persons who have with
  383  developmental disabilities.
  384         (29)(28) “Residential habilitation” means supervision and
  385  training with the acquisition, retention, or improvement in
  386  skills related to activities of daily living, such as personal
  387  hygiene skills, homemaking skills, and the social and adaptive
  388  skills necessary to enable the individual to reside in the
  389  community.
  390         (30)(29) “Residential habilitation center” means a
  391  community residential facility licensed under this chapter which
  392  provides habilitation services. The capacity of such a facility
  393  may shall not be fewer than nine residents. After October 1,
  394  1989, new residential habilitation centers may not be licensed
  395  and the licensed capacity for any existing residential
  396  habilitation center may not be increased.
  397         (31)(30) “Respite service” means appropriate, short-term,
  398  temporary care that is provided to a person who has a with
  399  developmental disability in order disabilities to meet the
  400  planned or emergency needs of the person or the family or other
  401  direct service provider.
  402         (32)(31) “Restraint” means a physical device, method, or
  403  drug used to control dangerous behavior.
  404         (a) A physical restraint is any manual method or physical
  405  or mechanical device, material, or equipment attached or
  406  adjacent to an the individual’s body so that he or she cannot
  407  easily remove the restraint and which restricts freedom of
  408  movement or normal access to one’s body.
  409         (b) A drug used as a restraint is a medication used to
  410  control the person’s behavior or to restrict his or her freedom
  411  of movement and is not a standard treatment for the person’s
  412  medical or psychiatric condition. Physically holding a person
  413  during a procedure to forcibly administer psychotropic
  414  medication is a physical restraint.
  415         (c) Restraint does not include physical devices, such as
  416  orthopedically prescribed appliances, surgical dressings and
  417  bandages, supportive body bands, or other physical holding when
  418  necessary for routine physical examinations and tests; for
  419  purposes of orthopedic, surgical, or other similar medical
  420  treatment; when used to provide support for the achievement of
  421  functional body position or proper balance; or when used to
  422  protect a person from falling out of bed.
  423         (21)(32)Intellectual disability” “Retardation” means
  424  significantly subaverage general intellectual functioning
  425  existing concurrently with deficits in adaptive behavior which
  426  that manifests before the age of 18 and can reasonably be
  427  expected to continue indefinitely. For the purposes of this
  428  definition, the term:
  429         (a) “Adaptive behavior” means the effectiveness or degree
  430  with which an individual meets the standards of personal
  431  independence and social responsibility expected of his or her
  432  age, cultural group, and community.
  433         (b) “Significantly subaverage general intellectual
  434  functioning,for the purpose of this definition, means
  435  performance that which is two or more standard deviations from
  436  the mean score on a standardized intelligence test specified in
  437  the rules of the agency. “Adaptive behavior,” for the purpose of
  438  this definition, means the effectiveness or degree with which an
  439  individual meets the standards of personal independence and
  440  social responsibility expected of his or her age, cultural
  441  group, and community.
  442  
  443  For purposes of the application of the criminal laws and
  444  procedural rules of this state to matters relating to pretrial,
  445  trial, sentencing, and any matters relating to the imposition
  446  and execution of the death penalty, the terms “intellectual
  447  disability” or “intellectually disabled” are interchangeable
  448  with and have the same meaning as the terms “mental retardation”
  449  or “retardation” and “mentally retarded” as defined in this
  450  section before July 1, 2012.
  451         Section 10. Subsection (1), paragraphs (c) and (d) of
  452  subsection (2), paragraphs (b) through (d) of subsection (3),
  453  paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
  454  (g) of subsection (5), subsection (6), paragraph (d) of
  455  subsection (7), paragraph (b) of subsection (8), subsection
  456  (10), and paragraph (b) of subsection (12) of section 393.11,
  457  Florida Statutes, are amended to read:
  458         393.11 Involuntary admission to residential services.—
  459         (1) JURISDICTION.—If When a person has an intellectual
  460  disability is mentally retarded and requires involuntary
  461  admission to residential services provided by the agency, the
  462  circuit court of the county in which the person resides has
  463  shall have jurisdiction to conduct a hearing and enter an order
  464  involuntarily admitting the person in order for that the person
  465  to may receive the care, treatment, habilitation, and
  466  rehabilitation that which the person needs. For the purpose of
  467  identifying intellectual disability mental retardation,
  468  diagnostic capability shall be established by the agency. Except
  469  as otherwise specified, the proceedings under this section are
  470  shall be governed by the Florida Rules of Civil Procedure.
  471         (2) PETITION.—
  472         (c) The petition shall be verified and must shall:
  473         1. State the name, age, and present address of the
  474  commissioners and their relationship to the person who has an
  475  intellectual disability with mental retardation or autism;
  476         2. State the name, age, county of residence, and present
  477  address of the person who has an intellectual disability with
  478  mental retardation or autism;
  479         3. Allege that the commission believes that the person
  480  needs involuntary residential services and specify the factual
  481  information on which the belief is based;
  482         4. Allege that the person lacks sufficient capacity to give
  483  express and informed consent to a voluntary application for
  484  services and lacks the basic survival and self-care skills to
  485  provide for the person’s well-being or is likely to physically
  486  injure others if allowed to remain at liberty; and
  487         5. State which residential setting is the least restrictive
  488  and most appropriate alternative and specify the factual
  489  information on which the belief is based.
  490         (d) The petition must shall be filed in the circuit court
  491  of the county in which the person who has the intellectual
  492  disability with mental retardation or autism resides.
  493         (3) NOTICE.—
  494         (b) If Whenever a motion or petition has been filed
  495  pursuant to s. 916.303 to dismiss criminal charges against a
  496  defendant who has an intellectual disability with retardation or
  497  autism, and a petition is filed to involuntarily admit the
  498  defendant to residential services under this section, the notice
  499  of the filing of the petition must shall also be given to the
  500  defendant’s attorney, the state attorney of the circuit from
  501  which the defendant was committed, and the agency.
  502         (c) The notice must shall state that a hearing shall be set
  503  to inquire into the need of the person who has an intellectual
  504  disability with mental retardation or autism for involuntary
  505  residential services. The notice must shall also state the date
  506  of the hearing on the petition.
  507         (d) The notice must shall state that the individual who has
  508  an intellectual disability with mental retardation or autism has
  509  the right to be represented by counsel of his or her own choice
  510  and that, if the person cannot afford an attorney, the court
  511  shall appoint one.
  512         (4) AGENCY PARTICIPATION.—
  513         (b) Following examination, the agency shall file a written
  514  report with the court at least not less than 10 working days
  515  before the date of the hearing. The report must be served on the
  516  petitioner, the person who has the intellectual disability with
  517  mental retardation, and the person’s attorney at the time the
  518  report is filed with the court.
  519         (5) EXAMINING COMMITTEE.—
  520         (b) The court shall appoint at least no fewer than three
  521  disinterested experts who have demonstrated to the court an
  522  expertise in the diagnosis, evaluation, and treatment of persons
  523  who have intellectual disabilities with mental retardation. The
  524  committee must include at least one licensed and qualified
  525  physician, one licensed and qualified psychologist, and one
  526  qualified professional who, at with a minimum, has of a masters
  527  degree in social work, special education, or vocational
  528  rehabilitation counseling, to examine the person and to testify
  529  at the hearing on the involuntary admission to residential
  530  services.
  531         (e) The committee shall prepare a written report for the
  532  court. The report must explicitly document the extent that the
  533  person meets the criteria for involuntary admission. The report,
  534  and expert testimony, must include, but not be limited to:
  535         1. The degree of the person’s intellectual disability
  536  mental retardation and whether, using diagnostic capabilities
  537  established by the agency, the person is eligible for agency
  538  services;
  539         2. Whether, because of the person’s degree of intellectual
  540  disability mental retardation, the person:
  541         a. Lacks sufficient capacity to give express and informed
  542  consent to a voluntary application for services pursuant to s.
  543  393.065;
  544         b. Lacks basic survival and self-care skills to such a
  545  degree that close supervision and habilitation in a residential
  546  setting is necessary and if not provided would result in a real
  547  and present threat of substantial harm to the person’s well
  548  being; or
  549         c. Is likely to physically injure others if allowed to
  550  remain at liberty.
  551         3. The purpose to be served by residential care;
  552         4. A recommendation on the type of residential placement
  553  which would be the most appropriate and least restrictive for
  554  the person; and
  555         5. The appropriate care, habilitation, and treatment.
  556         (f) The committee shall file the report with the court at
  557  least not less than 10 working days before the date of the
  558  hearing. The report must shall be served on the petitioner, the
  559  person who has the intellectual disability with mental
  560  retardation, the person’s attorney at the time the report is
  561  filed with the court, and the agency.
  562         (g) Members of the examining committee shall receive a
  563  reasonable fee to be determined by the court. The fees shall are
  564  to be paid from the general revenue fund of the county in which
  565  the person who has the intellectual disability with mental
  566  retardation resided when the petition was filed.
  567         (6) COUNSEL; GUARDIAN AD LITEM.—
  568         (a) The person who has the intellectual disability must
  569  with mental retardation shall be represented by counsel at all
  570  stages of the judicial proceeding. If In the event the person is
  571  indigent and cannot afford counsel, the court shall appoint a
  572  public defender at least not less than 20 working days before
  573  the scheduled hearing. The person’s counsel shall have full
  574  access to the records of the service provider and the agency. In
  575  all cases, the attorney shall represent the rights and legal
  576  interests of the person with mental retardation, regardless of
  577  who initiates may initiate the proceedings or pays pay the
  578  attorney’s fee.
  579         (b) If the attorney, during the course of his or her
  580  representation, reasonably believes that the person who has the
  581  intellectual disability with mental retardation cannot
  582  adequately act in his or her own interest, the attorney may seek
  583  the appointment of a guardian ad litem. A prior finding of
  584  incompetency is not required before a guardian ad litem is
  585  appointed pursuant to this section.
  586         (7) HEARING.—
  587         (d) The person who has the intellectual disability must
  588  with mental retardation shall be physically present throughout
  589  the entire proceeding. If the person’s attorney believes that
  590  the person’s presence at the hearing is not in his or her the
  591  person’s best interest, the person’s presence may be waived once
  592  the court has seen the person and the hearing has commenced.
  593         (8) ORDER.—
  594         (b) An order of involuntary admission to residential
  595  services may not be entered unless the court finds that:
  596         1. The person is intellectually disabled mentally retarded
  597  or autistic;
  598         2. Placement in a residential setting is the least
  599  restrictive and most appropriate alternative to meet the
  600  person’s needs; and
  601         3. Because of the person’s degree of intellectual
  602  disability mental retardation or autism, the person:
  603         a. Lacks sufficient capacity to give express and informed
  604  consent to a voluntary application for services pursuant to s.
  605  393.065 and lacks basic survival and self-care skills to such a
  606  degree that close supervision and habilitation in a residential
  607  setting is necessary and, if not provided, would result in a
  608  real and present threat of substantial harm to the person’s
  609  well-being; or
  610         b. Is likely to physically injure others if allowed to
  611  remain at liberty.
  612         (10) COMPETENCY.—
  613         (a) The issue of competency is shall be separate and
  614  distinct from a determination of the appropriateness of
  615  involuntary admission to residential services due to
  616  intellectual disability for a condition of mental retardation.
  617         (b) The issue of the competency of a person who has an
  618  intellectual disability with mental retardation for purposes of
  619  assigning guardianship shall be determined in a separate
  620  proceeding according to the procedures and requirements of
  621  chapter 744. The issue of the competency of a person who has an
  622  intellectual disability with mental retardation or autism for
  623  purposes of determining whether the person is competent to
  624  proceed in a criminal trial shall be determined in accordance
  625  with chapter 916.
  626         (12) APPEAL.—
  627         (b) The filing of an appeal by the person who has an
  628  intellectual disability stays with mental retardation shall stay
  629  admission of the person into residential care. The stay remains
  630  shall remain in effect during the pendency of all review
  631  proceedings in Florida courts until a mandate issues.
  632         Section 11. Subsection (18) of section 394.455, Florida
  633  Statutes, is amended to read:
  634         394.455 Definitions.—As used in this part, unless the
  635  context clearly requires otherwise, the term:
  636         (18) “Mental illness” means an impairment of the mental or
  637  emotional processes that exercise conscious control of one’s
  638  actions or of the ability to perceive or understand reality,
  639  which impairment substantially interferes with the a person’s
  640  ability to meet the ordinary demands of living, regardless of
  641  etiology. For the purposes of this part, the term does not
  642  include a retardation or developmental disability as defined in
  643  chapter 393, intoxication, or conditions manifested only by
  644  antisocial behavior or substance abuse impairment.
  645         Section 12. Subsections (3) through (13) of section
  646  400.960, Florida Statutes, are amended to read:
  647         400.960 Definitions.—As used in this part, the term:
  648         (3)“Autism” has the same meaning as in s. 393.063.
  649         (4)“Cerebral palsy” has the same meaning as in s. 393.063.
  650         (3)(5) “Client” means any person determined by the Agency
  651  for Persons with Disabilities to be eligible for developmental
  652  services.
  653         (4)(6)Developmentally disabled” “developmental
  654  disability” has the same meaning as “developmental disability”
  655  as that term is defined in s. 393.063.
  656         (5)(7) “Direct service provider” means a person 18 years of
  657  age or older who has direct contact with individuals who have
  658  with developmental disabilities and who is unrelated to such the
  659  individuals with developmental disabilities.
  660         (6)(8) “Intermediate care facility for the developmentally
  661  disabled” means a residential facility licensed and certified in
  662  accordance with state law, and certified by the Federal
  663  Government, pursuant to the Social Security Act, as a provider
  664  of Medicaid services to persons who have with developmental
  665  disabilities.
  666         (9)“Prader-Willi syndrome” has the same meaning as in s.
  667  393.063.
  668         (7)(10)(a) “Restraint” means a physical device, method, or
  669  drug used to control behavior.
  670         (a) A physical restraint is any manual method or physical
  671  or mechanical device, material, or equipment attached or
  672  adjacent to the individual’s body so that he or she cannot
  673  easily remove the restraint and which restricts freedom of
  674  movement or normal access to one’s body.
  675         (b) A drug used as a restraint is a medication used to
  676  control the person’s behavior or to restrict his or her freedom
  677  of movement. Physically holding a person during a procedure to
  678  forcibly administer psychotropic medication is a physical
  679  restraint.
  680         (c) Restraint does not include physical devices, such as
  681  orthopedically prescribed appliances, surgical dressings and
  682  bandages, supportive body bands, or other physical holding when
  683  necessary for routine physical examinations and tests; for
  684  purposes of orthopedic, surgical, or other similar medical
  685  treatment; when used to provide support for the achievement of
  686  functional body position or proper balance; or when used to
  687  protect a person from falling out of bed.
  688         (11) “Retardation” has the same meaning as in s. 393.063.
  689         (8)(12) “Seclusion” means the physical segregation of a
  690  person in any fashion or the involuntary isolation of a person
  691  in a room or area from which the person is prevented from
  692  leaving. The prevention may be by physical barrier or by a staff
  693  member who is acting in a manner, or who is physically situated,
  694  so as to prevent the person from leaving the room or area. For
  695  purposes of this part, the term does not mean isolation due to a
  696  person’s medical condition or symptoms.
  697         (13)“Spina bifida” has the same meaning as in s. 393.063.
  698         Section 13. Subsection (12) of section 408.032, Florida
  699  Statutes, is amended to read:
  700         408.032 Definitions relating to Health Facility and
  701  Services Development Act.—As used in ss. 408.031-408.045, the
  702  term:
  703         (12) “Intermediate care facility for the developmentally
  704  disabled” means a residential facility licensed under part VIII
  705  of chapter 400 chapter 393 and certified by the Federal
  706  Government pursuant to the Social Security Act as a provider of
  707  Medicaid services to persons who are mentally retarded or who
  708  have a related condition.
  709         Section 14. Subsection (8) of section 409.908, Florida
  710  Statutes, is amended to read:
  711         (8) A provider of home-based or community-based services
  712  rendered pursuant to a federally approved waiver shall be
  713  reimbursed based on an established or negotiated rate for each
  714  service. These rates shall be established according to an
  715  analysis of the expenditure history and prospective budget
  716  developed by each contract provider participating in the waiver
  717  program, or under any other methodology adopted by the agency
  718  and approved by the Federal Government in accordance with the
  719  waiver. Privately owned and operated community-based residential
  720  facilities which meet agency requirements and which formerly
  721  received Medicaid reimbursement for the optional intermediate
  722  care facility for the intellectually disabled mentally retarded
  723  service may participate in the developmental services waiver as
  724  part of a home-and-community-based continuum of care for
  725  Medicaid recipients who receive waiver services.
  726         Section 15. Subsection (16) of section 413.20, Florida
  727  Statutes, is amended to read:
  728         413.20 Definitions.—As used in this part, the term:
  729         (16) “Person who has a significant disability” means an
  730  individual who has a disability that is a severe physical or
  731  mental impairment that seriously limits one or more functional
  732  capacities, such as mobility, communication, self-care, self
  733  direction, interpersonal skills, work tolerance, or work skills,
  734  in terms of an employment outcome; whose vocational
  735  rehabilitation may be expected to require multiple vocational
  736  rehabilitation services over an extended period of time; and who
  737  has one or more physical or mental disabilities resulting from
  738  amputation, arthritis, autism, blindness, burn injury, cancer,
  739  cerebral palsy, cystic fibrosis, deafness, head injury, heart
  740  disease, hemiplegia, hemophilia, respiratory or pulmonary
  741  dysfunction, intellectual disability mental retardation, mental
  742  illness, multiple sclerosis, muscular dystrophy, musculoskeletal
  743  disorder, neurological disorder, including stroke and epilepsy,
  744  paraplegia, quadriplegia, or other spinal cord condition,
  745  sickle-cell anemia, specific learning disability, end-stage
  746  renal disease, or another disability or a combination of
  747  disabilities that is determined, after an assessment for
  748  determining eligibility and vocational rehabilitation needs, to
  749  cause comparable substantial functional limitation.
  750         Section 16. Paragraph (a) of subsection (6) of section
  751  440.49, Florida Statutes, is amended to read:
  752         440.49 Limitation of liability for subsequent injury
  753  through Special Disability Trust Fund.—
  754         (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
  755         (a) Reimbursement is not allowed under this section unless
  756  it is established that the employer knew of the preexisting
  757  permanent physical impairment before prior to the occurrence of
  758  the subsequent injury or occupational disease, and that the
  759  permanent physical impairment is one of the following:
  760         1. Epilepsy.
  761         2. Diabetes.
  762         3. Cardiac disease.
  763         4. Amputation of foot, leg, arm, or hand.
  764         5. Total loss of sight of one or both eyes or a partial
  765  loss of corrected vision of more than 75 percent bilaterally.
  766         6. Residual disability from poliomyelitis.
  767         7. Cerebral palsy.
  768         8. Multiple sclerosis.
  769         9. Parkinson’s disease.
  770         10. Meniscectomy.
  771         11. Patellectomy.
  772         12. Ruptured cruciate ligament.
  773         13. Hemophilia.
  774         14. Chronic osteomyelitis.
  775         15. Surgical or spontaneous fusion of a major weight
  776  bearing joint.
  777         16. Hyperinsulinism.
  778         17. Muscular dystrophy.
  779         18. Thrombophlebitis.
  780         19. Herniated intervertebral disk.
  781         20. Surgical removal of an intervertebral disk or spinal
  782  fusion.
  783         21. One or more back injuries or a disease process of the
  784  back resulting in disability over a total of 120 or more days,
  785  if substantiated by a doctor’s opinion that there was a
  786  preexisting impairment to the claimant’s back.
  787         22. Total deafness.
  788         23. Intellectual disability if Mental retardation, provided
  789  the employee’s intelligence quotient is such that she or he
  790  falls within the lowest 2 percentile of the general population.
  791  However, it shall not be necessary for the employer does not
  792  need to know the employee’s actual intelligence quotient or
  793  actual relative ranking in relation to the intelligence quotient
  794  of the general population.
  795         24. Any permanent physical condition that which, before
  796  prior to the industrial accident or occupational disease,
  797  constitutes a 20 percent 20-percent impairment of a member or of
  798  the body as a whole.
  799         25. Obesity if, provided the employee is 30 percent or more
  800  over the average weight designated for her or his height and age
  801  in the Table of Average Weight of Americans by Height and Age
  802  prepared by the Society of Actuaries using data from the 1979
  803  Build and Blood Pressure Study.
  804         26. Any permanent physical impairment as provided defined
  805  in s. 440.15(3) which is a result of a prior industrial accident
  806  with the same employer or the employer’s parent company,
  807  subsidiary, sister company, or affiliate located within the
  808  geographical boundaries of this state.
  809         Section 17. Paragraph (g) of subsection (1) of section
  810  499.0054, Florida Statutes, is amended to read:
  811         499.0054 Advertising and labeling of drugs, devices, and
  812  cosmetics; exemptions.—
  813         (1) It is a violation of the Florida Drug and Cosmetic Act
  814  to perform or cause the performance of any of the following
  815  acts:
  816         (g) The advertising of any drug or device represented to
  817  have any effect in any of the following conditions, disorders,
  818  diseases, or processes:
  819         1. Blood disorders.
  820         2. Bone or joint diseases.
  821         3. Kidney diseases or disorders.
  822         4. Cancer.
  823         5. Diabetes.
  824         6. Gall bladder diseases or disorders.
  825         7. Heart and vascular diseases.
  826         8. High blood pressure.
  827         9. Diseases or disorders of the ear or auditory apparatus,
  828  including hearing loss or deafness.
  829         10. Mental disease or intellectual disability mental
  830  retardation.
  831         11. Paralysis.
  832         12. Prostate gland disorders.
  833         13. Conditions of the scalp affecting hair loss.
  834         14. Baldness.
  835         15. Endocrine disorders.
  836         16. Sexual impotence.
  837         17. Tumors.
  838         18. Venereal diseases.
  839         19. Varicose ulcers.
  840         20. Breast enlargement.
  841         21. Purifying blood.
  842         22. Metabolic disorders.
  843         23. Immune system disorders or conditions affecting the
  844  immune system.
  845         24. Extension of life expectancy.
  846         25. Stress and tension.
  847         26. Brain stimulation or performance.
  848         27. The body’s natural defense mechanisms.
  849         28. Blood flow.
  850         29. Depression.
  851         30. Human immunodeficiency virus or acquired immune
  852  deficiency syndrome or related disorders or conditions.
  853         Section 18. Section 514.072, Florida Statutes, is amended
  854  to read:
  855         514.072 Certification of swimming instructors for people
  856  who have developmental disabilities required.—Any person working
  857  at a swimming pool who holds himself or herself out as a
  858  swimming instructor specializing in training people who have
  859  developmental disabilities, as defined in s. 393.063(10), may be
  860  certified by the Dan Marino Foundation, Inc., in addition to
  861  being certified under s. 514.071. The Dan Marino Foundation,
  862  Inc., must develop certification requirements and a training
  863  curriculum for swimming instructors for people who have
  864  developmental disabilities and must submit the certification
  865  requirements to the Department of Health for review by January
  866  1, 2007. A person certified under s. 514.071 before July 1,
  867  2007, must meet the additional certification requirements of
  868  this section before January 1, 2008. A person certified under s.
  869  514.071 on or after July 1, 2007, must meet the additional
  870  certification requirements of this section within 6 months after
  871  receiving certification under s. 514.071.
  872         Section 19. Section 627.6041, Florida Statutes, is amended
  873  to read:
  874         627.6041 Handicapped Children with disabilities;
  875  continuation of coverage.—
  876         (1) A hospital or medical expense insurance policy or
  877  health care services plan contract that is delivered or issued
  878  for delivery in this state and that provides that coverage of a
  879  dependent child terminates will terminate upon attainment of the
  880  limiting age for dependent children specified in the policy or
  881  contract must shall also provide in substance that attainment of
  882  the limiting age does not terminate the coverage of the child
  883  while the child continues to be both:
  884         (a)(1) Incapable of self-sustaining employment by reason of
  885  an intellectual mental retardation or physical disability.
  886  handicap; and
  887         (b)(2) Chiefly dependent upon the policyholder or
  888  subscriber for support and maintenance.
  889         (2) If a claim is denied under a policy or contract for the
  890  stated reason that the child has attained the limiting age for
  891  dependent children specified in the policy or contract, the
  892  notice of denial must state that the policyholder has the burden
  893  of establishing that the child continues to meet the criteria
  894  specified in subsection subsections (1) and (2).
  895         Section 20. Section 627.6615, Florida Statutes, is amended
  896  to read:
  897         627.6615 Handicapped Children with disabilities;
  898  continuation of coverage under group policy.—
  899         (1) A group health insurance policy or health care services
  900  plan contract that is delivered or issued for delivery in this
  901  state and that provides that coverage of a dependent child of an
  902  employee or other member of the covered group terminates will
  903  terminate upon attainment of the limiting age for dependent
  904  children specified in the policy or contract must shall also
  905  provide in substance that attainment of the limiting age does
  906  not terminate the coverage of the child while the child
  907  continues to be both:
  908         (a)(1) Incapable of self-sustaining employment by reason of
  909  an intellectual mental retardation or physical disability.
  910  handicap; and
  911         (b)(2) Chiefly dependent upon the employee or member for
  912  support and maintenance.
  913         (2) If a claim is denied under a policy or contract for the
  914  stated reason that the child has attained the limiting age for
  915  dependent children specified in the policy or contract, the
  916  notice of denial must state that the certificateholder or
  917  subscriber has the burden of establishing that the child
  918  continues to meet the criteria specified in subsection
  919  subsections (1) and (2).
  920         Section 21. Subsection (29) of section 641.31, Florida
  921  Statutes, is amended to read:
  922         641.31 Health maintenance contracts.—
  923         (29) If a health maintenance contract provides that
  924  coverage of a dependent child of the subscriber terminates will
  925  terminate upon attainment of the limiting age for dependent
  926  children which is specified in the contract, the contract must
  927  also provide in substance that attainment of the limiting age
  928  does not terminate the coverage of the child while the child
  929  continues to be both:
  930         (a) Incapable of self-sustaining employment by reason of an
  931  intellectual mental retardation or physical disability.
  932  handicap, and
  933         (b) Chiefly dependent upon the employee or member for
  934  support and maintenance.
  935  
  936  If the claim is denied under a contract for the stated reason
  937  that the child has attained the limiting age for dependent
  938  children specified in the contract, the notice or denial must
  939  state that the subscriber has the burden of establishing that
  940  the child continues to meet the criteria specified in this
  941  subsection paragraphs (a) and (b).
  942         Section 22. Subsection (4) of section 650.05, Florida
  943  Statutes, is amended to read:
  944         650.05 Plans for coverage of employees of political
  945  subdivisions.—
  946         (4)(a) Notwithstanding any other provision of this chapter,
  947  effective January 1, 1972, all state political subdivisions
  948  receiving financial aid which that provide social security
  949  coverage for their employees pursuant to the provisions of this
  950  chapter and the provisions of the various retirement systems as
  951  authorized by law shall, in addition to other purposes, use
  952  utilize all grants-in-aid and other revenue received from the
  953  state to pay the employer’s share of social security cost.
  954         (b) The grants-in-aid and other revenue referred to in
  955  paragraph (a) specifically include, but are not limited to,
  956  minimum foundation program grants to public school districts and
  957  community colleges; gasoline, motor fuel, cigarette, racing, and
  958  insurance premium taxes distributed to political subdivisions;
  959  and amounts specifically appropriated as grants-in-aid for
  960  mental health, intellectual disabilities mental retardation, and
  961  mosquito control programs.
  962         Section 23. Subsection (1) of section 765.204, Florida
  963  Statutes, is amended to read:
  964         765.204 Capacity of principal; procedure.—
  965         (1) A principal is presumed to be capable of making health
  966  care decisions for herself or himself unless she or he is
  967  determined to be incapacitated. Incapacity may not be inferred
  968  from the person’s voluntary or involuntary hospitalization for
  969  mental illness or from her or his intellectual disability mental
  970  retardation.
  971         Section 24. Section 849.04, Florida Statutes, is amended to
  972  read:
  973         849.04 Permitting minors and persons under guardianship to
  974  gamble.—Whoever being The proprietor, owner, or keeper of any E.
  975  O., keno or pool table, or billiard table, wheel of fortune, or
  976  other game of chance, kept for the purpose of betting, who
  977  willfully and knowingly allows a any minor or any person who is
  978  mentally incompetent or under guardianship to play at such game
  979  or to bet on such game of chance; or whoever aids or abets or
  980  otherwise encourages such playing or betting of any money or
  981  other valuable thing upon the result of such game of chance by a
  982  any minor or any person who is mentally incompetent or under
  983  guardianship, commits shall be guilty of a felony of the third
  984  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  985  775.084. For the purpose of this section, the term aperson who
  986  is mentally incompetent personmeans a person is one who
  987  because of mental illness, intellectual disability mental
  988  retardation, senility, excessive use of drugs or alcohol, or
  989  other mental incapacity is incapable of either managing his or
  990  her property or caring for himself or herself or both.
  991         Section 25. Section 914.16, Florida Statutes, is amended to
  992  read:
  993         914.16 Child abuse and sexual abuse of victims under age 16
  994  or who have an intellectual disability persons with mental
  995  retardation; limits on interviews.—The chief judge of each
  996  judicial circuit, after consultation with the state attorney and
  997  the public defender for the judicial circuit, the appropriate
  998  chief law enforcement officer, and any other person deemed
  999  appropriate by the chief judge, shall provide by order
 1000  reasonable limits on the number of interviews which that a
 1001  victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
 1002  847.0135(5) who is under 16 years of age or a victim of a
 1003  violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
 1004  has an intellectual disability is a person with mental
 1005  retardation as defined in s. 393.063 must submit to for law
 1006  enforcement or discovery purposes. The order shall, To the
 1007  extent possible, the order must protect the victim from the
 1008  psychological damage of repeated interrogations while preserving
 1009  the rights of the public, the victim, and the person charged
 1010  with the violation.
 1011         Section 26. Section 914.17, Florida Statutes, is amended to
 1012  read:
 1013         914.17 Appointment of advocate for victims or witnesses who
 1014  are minors or intellectually disabled persons with mental
 1015  retardation.—
 1016         (1) A guardian ad litem or other advocate shall be
 1017  appointed by the court to represent a minor in any criminal
 1018  proceeding if the minor is a victim of or witness to child abuse
 1019  or neglect, or if the minor is a victim of a sexual offense, or
 1020  a witness to a sexual offense committed against another minor.
 1021  The court may appoint a guardian ad litem or other advocate in
 1022  any other criminal proceeding in which a minor is involved as
 1023  either a victim or a witness. The guardian ad litem or other
 1024  advocate shall have full access to all evidence and reports
 1025  introduced during the proceedings, may interview witnesses, may
 1026  make recommendations to the court, shall be noticed and have the
 1027  right to appear on behalf of the minor at all proceedings, and
 1028  may request additional examinations by medical doctors,
 1029  psychiatrists, or psychologists. It is the duty of The guardian
 1030  ad litem or other advocate shall to perform the following
 1031  services:
 1032         (a) To Explain, in language understandable to the minor,
 1033  all legal proceedings in which the minor is shall be involved;
 1034         (b) To Act, as a friend of the court, to advise the judge,
 1035  whenever appropriate, of the minor’s ability to understand and
 1036  cooperate with any court proceeding; and
 1037         (c) To Assist the minor and the minor’s family in coping
 1038  with the emotional effects of the crime and subsequent criminal
 1039  proceedings in which the minor is involved.
 1040         (2) An advocate shall be appointed by the court to
 1041  represent a person who has an intellectual disability with
 1042  mental retardation as defined in s. 393.063 in any criminal
 1043  proceeding if the person with mental retardation is a victim of
 1044  or witness to abuse or neglect, or if the person with mental
 1045  retardation is a victim of a sexual offense, or a witness to a
 1046  sexual offense committed against a minor or person who has an
 1047  intellectual disability with mental retardation. The court may
 1048  appoint an advocate in any other criminal proceeding in which
 1049  such a person with mental retardation is involved as either a
 1050  victim or a witness. The advocate shall have full access to all
 1051  evidence and reports introduced during the proceedings, may
 1052  interview witnesses, may make recommendations to the court,
 1053  shall be noticed and have the right to appear on behalf of the
 1054  person with mental retardation at all proceedings, and may
 1055  request additional examinations by medical doctors,
 1056  psychiatrists, or psychologists. It is the duty of The advocate
 1057  shall to perform the following services:
 1058         (a) To Explain, in language understandable to the person
 1059  with mental retardation, all legal proceedings in which the
 1060  person is shall be involved;
 1061         (b) To Act, as a friend of the court, to advise the judge,
 1062  whenever appropriate, of the person’s person with mental
 1063  retardation’s ability to understand and cooperate with any court
 1064  proceedings; and
 1065         (c) To Assist the person with mental retardation and the
 1066  person’s family in coping with the emotional effects of the
 1067  crime and subsequent criminal proceedings in which the person
 1068  with mental retardation is involved.
 1069         (3) Any person participating in a judicial proceeding as a
 1070  guardian ad litem or other advocate is shall be presumed prima
 1071  facie to be acting in good faith and in so doing is shall be
 1072  immune from any liability, civil or criminal, which that
 1073  otherwise might be incurred or imposed.
 1074         Section 27. Subsections (1), (2), and (3) of section
 1075  916.105, Florida Statutes, are amended to read:
 1076         916.105 Legislative intent.—
 1077         (1) It is the intent of the Legislature that the Department
 1078  of Children and Family Services and the Agency for Persons with
 1079  Disabilities, as appropriate, establish, locate, and maintain
 1080  separate and secure forensic facilities and programs for the
 1081  treatment or training of defendants who have been charged with a
 1082  felony and who have been found to be incompetent to proceed due
 1083  to their mental illness, intellectual disability mental
 1084  retardation, or autism, or who have been acquitted of a felony
 1085  by reason of insanity, and who, while still under the
 1086  jurisdiction of the committing court, are committed to the
 1087  department or agency under the provisions of this chapter. Such
 1088  facilities must shall be sufficient to accommodate the number of
 1089  defendants committed under the conditions noted above. Except
 1090  for those defendants found by the department or agency to be
 1091  appropriate for treatment or training in a civil facility or
 1092  program pursuant to subsection (3), forensic facilities must
 1093  shall be designed and administered so that ingress and egress,
 1094  together with other requirements of this chapter, may be
 1095  strictly controlled by staff responsible for security in order
 1096  to protect the defendant, facility personnel, other clients, and
 1097  citizens in adjacent communities.
 1098         (2) It is the intent of the Legislature that treatment or
 1099  training programs for defendants who are found to have mental
 1100  illness, intellectual disability mental retardation, or autism
 1101  and are involuntarily committed to the department or agency, and
 1102  who are still under the jurisdiction of the committing court, be
 1103  provided in a manner, subject to security requirements and other
 1104  mandates of this chapter, which ensures as to ensure the rights
 1105  of the defendants as provided in this chapter.
 1106         (3) It is the intent of the Legislature that evaluation and
 1107  services to defendants who have mental illness, intellectual
 1108  disability mental retardation, or autism be provided in
 1109  community settings, in community residential facilities, or in
 1110  civil facilities, whenever this is a feasible alternative to
 1111  treatment or training in a state forensic facility.
 1112         Section 28. Subsections (1), (10), (11), (12), and (17) of
 1113  section 916.106, Florida Statutes, are amended, and subsections
 1114  (13) through (15) of that section are reordered and amended, to
 1115  read:
 1116         916.106 Definitions.—For the purposes of this chapter, the
 1117  term:
 1118         (1) “Agency” means the Agency for Persons with
 1119  Disabilities. The agency is responsible for training forensic
 1120  clients who are developmentally disabled due to intellectual
 1121  disability mental retardation or autism and have been determined
 1122  incompetent to proceed.
 1123         (10) “Forensic facility” means a separate and secure
 1124  facility established within the department or agency to serve
 1125  forensic clients. A separate and secure facility means a
 1126  security-grade building for the purpose of separately housing
 1127  persons who have mental illness from persons who have
 1128  intellectual disabilities with retardation or autism and
 1129  separately housing persons who have been involuntarily committed
 1130  pursuant to this chapter from nonforensic residents.
 1131         (11) “Incompetent to proceed” means unable to proceed at
 1132  any material stage of a criminal proceeding, which includes the
 1133  shall include trial of the case, pretrial hearings involving
 1134  questions of fact on which the defendant might be expected to
 1135  testify, entry of a plea, proceedings for violation of probation
 1136  or violation of community control, sentencing, and hearings on
 1137  issues regarding a defendant’s failure to comply with court
 1138  orders or conditions or other matters in which the mental
 1139  competence of the defendant is necessary for a just resolution
 1140  of the issues being considered.
 1141         (12) “Institutional security personnel” means the staff of
 1142  forensic facilities who meet or exceed the requirements of s.
 1143  943.13 and who are responsible for providing security,
 1144  protecting clients and personnel, enforcing rules, preventing
 1145  and investigating unauthorized activities, and safeguarding the
 1146  interests of residents citizens in the surrounding communities.
 1147         (14)(13) “Mental illness” means an impairment of the
 1148  emotional processes that exercise conscious control of one’s
 1149  actions, or of the ability to perceive or understand reality,
 1150  which impairment substantially interferes with the a defendant’s
 1151  ability to meet the ordinary demands of living. For the purposes
 1152  of this chapter, the term does not apply to defendants who have
 1153  only an intellectual disability with only mental retardation or
 1154  autism and does not include intoxication or conditions
 1155  manifested only by antisocial behavior or substance abuse
 1156  impairment.
 1157         (15)(14) “Restraint” means a physical device, method, or
 1158  drug used to control dangerous behavior.
 1159         (a) A physical restraint is any manual method or physical
 1160  or mechanical device, material, or equipment attached or
 1161  adjacent to a person’s body so that he or she cannot easily
 1162  remove the restraint and that restricts freedom of movement or
 1163  normal access to one’s body.
 1164         (b) A drug used as a restraint is a medication used to
 1165  control the person’s behavior or to restrict his or her freedom
 1166  of movement and not part of the standard treatment regimen of
 1167  the person with a diagnosed mental illness who is a client of
 1168  the department. Physically holding a person during a procedure
 1169  to forcibly administer psychotropic medication is a physical
 1170  restraint.
 1171         (c) Restraint does not include physical devices, such as
 1172  orthopedically prescribed appliances, surgical dressings and
 1173  bandages, supportive body bands, or other physical holding when
 1174  necessary for routine physical examinations and tests; for
 1175  purposes of orthopedic, surgical, or other similar medical
 1176  treatment; when used to provide support for the achievement of
 1177  functional body position or proper balance; or when used to
 1178  protect a person from falling out of bed.
 1179         (13)(15)“Intellectual disability” “Retardation” has the
 1180  same meaning as in s. 393.063.
 1181         (17) “Social service professional” means a person whose
 1182  minimum qualifications include a bachelor’s degree and at least
 1183  2 years of social work, clinical practice, special education,
 1184  habilitation, or equivalent experience working directly with
 1185  persons who have intellectual disabilities with retardation,
 1186  autism, or other developmental disabilities.
 1187         Section 29. Paragraph (a) of subsection (1) and paragraph
 1188  (a) of subsection (3) of section 916.107, Florida Statutes, are
 1189  amended to read:
 1190         916.107 Rights of forensic clients.—
 1191         (1) RIGHT TO INDIVIDUAL DIGNITY.—
 1192         (a) The policy of the state is that the individual dignity
 1193  of the client shall be respected at all times and upon all
 1194  occasions, including any occasion when the forensic client is
 1195  detained, transported, or treated. Clients with mental illness,
 1196  intellectual disability retardation, or autism and who are
 1197  charged with committing felonies shall receive appropriate
 1198  treatment or training. In a criminal case involving a client who
 1199  has been adjudicated incompetent to proceed or not guilty by
 1200  reason of insanity, a jail may be used as an emergency facility
 1201  for up to 15 days following the date the department or agency
 1202  receives a completed copy of the court commitment order
 1203  containing all documentation required by the applicable Florida
 1204  Rules of Criminal Procedure. For a forensic client who is held
 1205  in a jail awaiting admission to a facility of the department or
 1206  agency, evaluation and treatment or training may be provided in
 1207  the jail by the local community mental health provider for
 1208  mental health services, by the developmental disabilities
 1209  program for persons with intellectual disability retardation or
 1210  autism, the client’s physician or psychologist, or any other
 1211  appropriate program until the client is transferred to a civil
 1212  or forensic facility.
 1213         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
 1214         (a) A forensic client shall be asked to give express and
 1215  informed written consent for treatment. If a client refuses such
 1216  treatment as is deemed necessary and essential by the client’s
 1217  multidisciplinary treatment team for the appropriate care of the
 1218  client, such treatment may be provided under the following
 1219  circumstances:
 1220         1. In an emergency situation in which there is immediate
 1221  danger to the safety of the client or others, such treatment may
 1222  be provided upon the written order of a physician for a period
 1223  not to exceed 48 hours, excluding weekends and legal holidays.
 1224  If, after the 48-hour period, the client has not given express
 1225  and informed consent to the treatment initially refused, the
 1226  administrator or designee of the civil or forensic facility
 1227  shall, within 48 hours, excluding weekends and legal holidays,
 1228  petition the committing court or the circuit court serving the
 1229  county in which the facility is located, at the option of the
 1230  facility administrator or designee, for an order authorizing the
 1231  continued treatment of the client. In the interim, the need for
 1232  treatment shall be reviewed every 48 hours and may be continued
 1233  without the consent of the client upon the continued written
 1234  order of a physician who has determined that the emergency
 1235  situation continues to present a danger to the safety of the
 1236  client or others.
 1237         2. In a situation other than an emergency situation, the
 1238  administrator or designee of the facility shall petition the
 1239  court for an order authorizing necessary and essential treatment
 1240  for the client. The order shall allow such treatment for a
 1241  period not to exceed 90 days following the date of the entry of
 1242  the order. Unless the court is notified in writing that the
 1243  client has provided express and informed consent in writing or
 1244  that the client has been discharged by the committing court, the
 1245  administrator or designee shall, before prior to the expiration
 1246  of the initial 90-day order, petition the court for an order
 1247  authorizing the continuation of treatment for another 90-day
 1248  period. This procedure shall be repeated until the client
 1249  provides consent or is discharged by the committing court.
 1250         3. At the hearing on the issue of whether the court should
 1251  enter an order authorizing treatment for which a client was
 1252  unable to or refused to give express and informed consent, the
 1253  court shall determine by clear and convincing evidence that the
 1254  client has mental illness, intellectual disability retardation,
 1255  or autism, that the treatment not consented to is essential to
 1256  the care of the client, and that the treatment not consented to
 1257  is not experimental and does not present an unreasonable risk of
 1258  serious, hazardous, or irreversible side effects. In arriving at
 1259  the substitute judgment decision, the court must consider at
 1260  least the following factors:
 1261         a. The client’s expressed preference regarding treatment;
 1262         b. The probability of adverse side effects;
 1263         c. The prognosis without treatment; and
 1264         d. The prognosis with treatment.
 1265  
 1266  The hearing shall be as convenient to the client as may be
 1267  consistent with orderly procedure and shall be conducted in
 1268  physical settings not likely to be injurious to the client’s
 1269  condition. The court may appoint a general or special magistrate
 1270  to preside at the hearing. The client or the client’s guardian,
 1271  and the representative, shall be provided with a copy of the
 1272  petition and the date, time, and location of the hearing. The
 1273  client has the right to have an attorney represent him or her at
 1274  the hearing, and, if the client is indigent, the court shall
 1275  appoint the office of the public defender to represent the
 1276  client at the hearing. The client may testify or not, as he or
 1277  she chooses, and has the right to cross-examine witnesses and
 1278  may present his or her own witnesses.
 1279         Section 30. The Division of Statutory Revision is requested
 1280  to rename part III of chapter 916, Florida Statutes, consisting
 1281  of ss. 916.301-916.304, as “Forensic Services for Persons who
 1282  are Intellectually Disabled or Autistic.”
 1283         Section 31. Subsections (1) and (2) of section 916.301,
 1284  Florida Statutes, are amended to read:
 1285         916.301 Appointment of experts.—
 1286         (1) All evaluations ordered by the court under this part
 1287  must be conducted by qualified experts who have expertise in
 1288  evaluating persons who have an intellectual disability with
 1289  retardation or autism. The agency shall maintain and provide the
 1290  courts annually with a list of available retardation and autism
 1291  professionals who are appropriately licensed and qualified to
 1292  perform evaluations of defendants alleged to be incompetent to
 1293  proceed due to intellectual disability retardation or autism.
 1294  The courts may use professionals from this list when appointing
 1295  experts and ordering evaluations under this part.
 1296         (2) If a defendant’s suspected mental condition is
 1297  intellectual disability retardation or autism, the court shall
 1298  appoint the following:
 1299         (a) At least one, or at the request of any party, two
 1300  experts to evaluate whether the defendant meets the definition
 1301  of intellectual disability retardation or autism and, if so,
 1302  whether the defendant is competent to proceed; and
 1303         (b) A psychologist selected by the agency who is licensed
 1304  or authorized by law to practice in this state, with experience
 1305  in evaluating persons suspected of having an intellectual
 1306  disability retardation or autism, and a social service
 1307  professional, with experience in working with persons who have
 1308  an intellectual disability with retardation or autism.
 1309         1. The psychologist shall evaluate whether the defendant
 1310  meets the definition of intellectual disability retardation or
 1311  autism and, if so, whether the defendant is incompetent to
 1312  proceed due to intellectual disability retardation or autism.
 1313         2. The social service professional shall provide a social
 1314  and developmental history of the defendant.
 1315         Section 32. Subsections (1), (2), and (4) of section
 1316  916.3012, Florida Statutes, are amended to read:
 1317         916.3012 Mental competence to proceed.—
 1318         (1) A defendant whose suspected mental condition is
 1319  intellectual disability retardation or autism is incompetent to
 1320  proceed within the meaning of this chapter if the defendant does
 1321  not have sufficient present ability to consult with the
 1322  defendant’s lawyer with a reasonable degree of rational
 1323  understanding or if the defendant has no rational, as well as
 1324  factual, understanding of the proceedings against the defendant.
 1325         (2) Experts in intellectual disability retardation or
 1326  autism appointed pursuant to s. 916.301 shall first consider
 1327  whether the defendant meets the definition of intellectual
 1328  disability retardation or autism and, if so, consider the
 1329  factors related to the issue of whether the defendant meets the
 1330  criteria for competence to proceed as described in subsection
 1331  (1).
 1332         (4) If the experts should find that the defendant is
 1333  incompetent to proceed, the experts shall report on any
 1334  recommended training for the defendant to attain competence to
 1335  proceed. In considering the issues relating to training, the
 1336  examining experts shall specifically report on:
 1337         (a) The intellectual disability retardation or autism
 1338  causing the incompetence;
 1339         (b) The training appropriate for the intellectual
 1340  disability retardation or autism of the defendant and an
 1341  explanation of each of the possible training alternatives in
 1342  order of choices;
 1343         (c) The availability of acceptable training and, if
 1344  training is available in the community, the expert shall so
 1345  state in the report; and
 1346         (d) The likelihood of the defendant’s attaining competence
 1347  under the training recommended, an assessment of the probable
 1348  duration of the training required to restore competence, and the
 1349  probability that the defendant will attain competence to proceed
 1350  in the foreseeable future.
 1351         Section 33. Subsection (1), paragraphs (a) and (b) of
 1352  subsection (2), and paragraph (a) of subsection (3) of section
 1353  916.302, Florida Statutes, are amended to read:
 1354         916.302 Involuntary commitment of defendant determined to
 1355  be incompetent to proceed.—
 1356         (1) CRITERIA.—Every defendant who is charged with a felony
 1357  and who is adjudicated incompetent to proceed due to
 1358  intellectual disability retardation or autism may be
 1359  involuntarily committed for training upon a finding by the court
 1360  of clear and convincing evidence that:
 1361         (a) The defendant has an intellectual disability
 1362  retardation or autism;
 1363         (b) There is a substantial likelihood that in the near
 1364  future the defendant will inflict serious bodily harm on himself
 1365  or herself or another person, as evidenced by recent behavior
 1366  causing, attempting, or threatening such harm;
 1367         (c) All available, less restrictive alternatives, including
 1368  services provided in community residential facilities or other
 1369  community settings, which would offer an opportunity for
 1370  improvement of the condition have been judged to be
 1371  inappropriate; and
 1372         (d) There is a substantial probability that the
 1373  intellectual disability retardation or autism causing the
 1374  defendant’s incompetence will respond to training and the
 1375  defendant will regain competency to proceed in the reasonably
 1376  foreseeable future.
 1377         (2) ADMISSION TO A FACILITY.—
 1378         (a) A defendant who has been charged with a felony and who
 1379  is found to be incompetent to proceed due to intellectual
 1380  disability retardation or autism, and who meets the criteria for
 1381  involuntary commitment to the agency under the provisions of
 1382  this chapter, shall be committed to the agency, and the agency
 1383  shall retain and provide appropriate training for the defendant.
 1384  Within No later than 6 months after the date of admission or at
 1385  the end of any period of extended commitment or at any time the
 1386  administrator or designee determines shall have determined that
 1387  the defendant has regained competency to proceed or no longer
 1388  meets the criteria for continued commitment, the administrator
 1389  or designee shall file a report with the court pursuant to this
 1390  chapter and the applicable Florida Rules of Criminal Procedure.
 1391         (b) A defendant determined to be incompetent to proceed due
 1392  to intellectual disability retardation or autism may be ordered
 1393  by a circuit court into a forensic facility designated by the
 1394  agency for defendants who have an intellectual disability mental
 1395  retardation or autism.
 1396         (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
 1397         (a) If a defendant has both an intellectual disability
 1398  mental retardation or autism and has a mental illness,
 1399  evaluations must address which condition is primarily affecting
 1400  the defendant’s competency to proceed. Referral of the defendant
 1401  should be made to a civil or forensic facility most appropriate
 1402  to address the symptoms that are the cause of the defendant’s
 1403  incompetence.
 1404         Section 34. Subsection (1) of section 916.3025, Florida
 1405  Statutes, is amended to read:
 1406         916.3025 Jurisdiction of committing court.—
 1407         (1) The committing court shall retain jurisdiction in the
 1408  case of any defendant found to be incompetent to proceed due to
 1409  intellectual disability retardation or autism and ordered into a
 1410  forensic facility designated by the agency for defendants who
 1411  have intellectual disabilities mental retardation or autism. A
 1412  defendant may not be released except by the order of the
 1413  committing court. An administrative hearing examiner does not
 1414  have jurisdiction to determine issues of continuing commitment
 1415  or release of any defendant involuntarily committed pursuant to
 1416  this chapter.
 1417         Section 35. Section 916.303, Florida Statutes, is amended
 1418  to read:
 1419         916.303 Determination of incompetency due to retardation or
 1420  autism; dismissal of charges.—
 1421         (1) The charges against any defendant found to be
 1422  incompetent to proceed due to intellectual disability
 1423  retardation or autism shall be dismissed without prejudice to
 1424  the state if the defendant remains incompetent to proceed within
 1425  a reasonable time after such determination, not to exceed 2
 1426  years, unless the court in its order specifies its reasons for
 1427  believing that the defendant will become competent to proceed
 1428  within the foreseeable future and specifies the time within
 1429  which the defendant is expected to become competent to proceed.
 1430  The charges may be refiled by the state if the defendant is
 1431  declared competent to proceed in the future.
 1432         (2) If the charges are dismissed and if the defendant is
 1433  considered to lack sufficient capacity to give express and
 1434  informed consent to a voluntary application for services and
 1435  lacks the basic survival and self-care skills to provide for his
 1436  or her well-being or is likely to physically injure himself or
 1437  herself or others if allowed to remain at liberty, the agency,
 1438  the state attorney, or the defendant’s attorney shall apply to
 1439  the committing court to involuntarily admit the defendant to
 1440  residential services pursuant to s. 393.11.
 1441         (3) If the defendant is considered to need involuntary
 1442  residential services for reasons described in subsection (2)
 1443  and, further, there is a substantial likelihood that the
 1444  defendant will injure another person or continues to present a
 1445  danger of escape, and all available less restrictive
 1446  alternatives, including services in community residential
 1447  facilities or other community settings, which would offer an
 1448  opportunity for improvement of the condition have been judged to
 1449  be inappropriate, the agency, the state attorney, or the
 1450  defendant’s counsel may request the committing court to continue
 1451  the defendant’s placement in a secure facility pursuant to this
 1452  part. Any placement so continued under this subsection must be
 1453  reviewed by the court at least annually at a hearing. The annual
 1454  review and hearing must shall determine whether the defendant
 1455  continues to meet the criteria described in this subsection and,
 1456  if so, whether the defendant still requires involuntary
 1457  placement in a secure facility and whether the defendant is
 1458  receiving adequate care, treatment, habilitation, and
 1459  rehabilitation, including psychotropic medication and behavioral
 1460  programming. Notice of the annual review and review hearing
 1461  shall be given to the state attorney and the defendant’s
 1462  attorney. In no instance may A defendant’s placement in a secure
 1463  facility may not exceed the maximum sentence for the crime for
 1464  which the defendant was charged.
 1465         Section 36. Subsection (1) of section 916.304, Florida
 1466  Statutes, is amended to read:
 1467         916.304 Conditional release.—
 1468         (1) Except for an inmate currently serving a prison
 1469  sentence, the committing court may order a conditional release
 1470  of any defendant who has been found to be incompetent to proceed
 1471  due to intellectual disability retardation or autism, based on
 1472  an approved plan for providing community-based training. The
 1473  committing criminal court may order a conditional release of any
 1474  defendant to a civil facility in lieu of an involuntary
 1475  commitment to a forensic facility pursuant to s. 916.302. Upon a
 1476  recommendation that community-based training for the defendant
 1477  is appropriate, a written plan for community-based training,
 1478  including recommendations from qualified professionals, may be
 1479  filed with the court, with copies to all parties. Such a plan
 1480  may also be submitted by the defendant and filed with the court,
 1481  with copies to all parties. The plan must include:
 1482         (a) Special provisions for residential care and adequate
 1483  supervision of the defendant, including recommended location of
 1484  placement.
 1485         (b) Recommendations for auxiliary services such as
 1486  vocational training, psychological training, educational
 1487  services, leisure services, and special medical care.
 1488  
 1489  In its order of conditional release, the court shall specify the
 1490  conditions of release based upon the release plan and shall
 1491  direct the appropriate agencies or persons to submit periodic
 1492  reports to the courts regarding the defendant’s compliance with
 1493  the conditions of the release and progress in training, with
 1494  copies to all parties.
 1495         Section 37. Section 918.16, Florida Statutes, is amended to
 1496  read:
 1497         918.16 Sex offenses; testimony of person under age 16 or
 1498  who has an intellectual disability person with mental
 1499  retardation; testimony of victim; courtroom cleared;
 1500  exceptions.—
 1501         (1) Except as provided in subsection (2), in the trial of
 1502  any case, civil or criminal, if when any person under the age of
 1503  16 or any person with an intellectual disability mental
 1504  retardation as defined in s. 393.063 is testifying concerning
 1505  any sex offense, the court shall clear the courtroom of all
 1506  persons except parties to the cause and their immediate families
 1507  or guardians, attorneys and their secretaries, officers of the
 1508  court, jurors, newspaper reporters or broadcasters, court
 1509  reporters, and, at the request of the victim, victim or witness
 1510  advocates designated by the state attorney’s office.
 1511         (2) If When the victim of a sex offense is testifying
 1512  concerning that offense in any civil or criminal trial, the
 1513  court shall clear the courtroom of all persons upon the request
 1514  of the victim, regardless of the victim’s age or mental
 1515  capacity, except that parties to the cause and their immediate
 1516  families or guardians, attorneys and their secretaries, officers
 1517  of the court, jurors, newspaper reporters or broadcasters, court
 1518  reporters, and, at the request of the victim, victim or witness
 1519  advocates designated by the state attorney may remain in the
 1520  courtroom.
 1521         Section 38. Section 921.137, Florida Statutes, is amended
 1522  to read:
 1523         921.137 Imposition of the death sentence upon an
 1524  intellectually disabled a defendant with mental retardation
 1525  prohibited.—
 1526         (1) As used in this section, the term “intellectually
 1527  disabled” or “intellectual disability” “mental retardation”
 1528  means significantly subaverage general intellectual functioning
 1529  existing concurrently with deficits in adaptive behavior and
 1530  manifested during the period from conception to age 18. The term
 1531  “significantly subaverage general intellectual functioning,” for
 1532  the purpose of this section, means performance that is two or
 1533  more standard deviations from the mean score on a standardized
 1534  intelligence test specified in the rules of the Agency for
 1535  Persons with Disabilities. The term “adaptive behavior,” for the
 1536  purpose of this definition, means the effectiveness or degree
 1537  with which an individual meets the standards of personal
 1538  independence and social responsibility expected of his or her
 1539  age, cultural group, and community. The Agency for Persons with
 1540  Disabilities shall adopt rules to specify the standardized
 1541  intelligence tests as provided in this subsection.
 1542         (2) A sentence of death may not be imposed upon a defendant
 1543  convicted of a capital felony if it is determined in accordance
 1544  with this section that the defendant is intellectually disabled
 1545  has mental retardation.
 1546         (3) A defendant charged with a capital felony who intends
 1547  to raise intellectual disability mental retardation as a bar to
 1548  the death sentence must give notice of such intention in
 1549  accordance with the rules of court governing notices of intent
 1550  to offer expert testimony regarding mental health mitigation
 1551  during the penalty phase of a capital trial.
 1552         (4) After a defendant who has given notice of his or her
 1553  intention to raise intellectual disability mental retardation as
 1554  a bar to the death sentence is convicted of a capital felony and
 1555  an advisory jury has returned a recommended sentence of death,
 1556  the defendant may file a motion to determine whether the
 1557  defendant is intellectually disabled has mental retardation.
 1558  Upon receipt of the motion, the court shall appoint two experts
 1559  in the field of intellectual disabilities mental retardation who
 1560  shall evaluate the defendant and report their findings to the
 1561  court and all interested parties prior to the final sentencing
 1562  hearing. Notwithstanding s. 921.141 or s. 921.142, the final
 1563  sentencing hearing shall be held without a jury. At the final
 1564  sentencing hearing, the court shall consider the findings of the
 1565  court-appointed experts and consider the findings of any other
 1566  expert which is offered by the state or the defense on the issue
 1567  of whether the defendant has an intellectual disability mental
 1568  retardation. If the court finds, by clear and convincing
 1569  evidence, that the defendant has an intellectual disability
 1570  mental retardation as defined in subsection (1), the court may
 1571  not impose a sentence of death and shall enter a written order
 1572  that sets forth with specificity the findings in support of the
 1573  determination.
 1574         (5) If a defendant waives his or her right to a recommended
 1575  sentence by an advisory jury following a plea of guilt or nolo
 1576  contendere to a capital felony and adjudication of guilt by the
 1577  court, or following a jury finding of guilt of a capital felony,
 1578  upon acceptance of the waiver by the court, a defendant who has
 1579  given notice as required in subsection (3) may file a motion for
 1580  a determination of intellectual disability mental retardation.
 1581  Upon granting the motion, the court shall proceed as provided in
 1582  subsection (4).
 1583         (6) If, following a recommendation by an advisory jury that
 1584  the defendant be sentenced to life imprisonment, the state
 1585  intends to request the court to order that the defendant be
 1586  sentenced to death, the state must inform the defendant of such
 1587  request if the defendant has notified the court of his or her
 1588  intent to raise intellectual disability mental retardation as a
 1589  bar to the death sentence. After receipt of the notice from the
 1590  state, the defendant may file a motion requesting a
 1591  determination by the court of whether the defendant is
 1592  intellectually disabled has mental retardation. Upon granting
 1593  the motion, the court shall proceed as provided in subsection
 1594  (4).
 1595         (7) Pursuant to s. 924.07, the state may appeal, pursuant
 1596  to s. 924.07, a determination of intellectual disability mental
 1597  retardation made under subsection (4).
 1598         (8) This section does not apply to a defendant who was
 1599  sentenced to death before June 12, 2001 prior to the effective
 1600  date of this act.
 1601         (9)For purposes of the application of the criminal laws
 1602  and procedural rules of this state to any matters relating to
 1603  the imposition and execution of the death penalty, the terms
 1604  “intellectual disability” or “intellectually disabled” are
 1605  interchangeable with and have the same meaning as the terms
 1606  “mental retardation or “retardation” and “mentally retarded” as
 1607  those terms were defined before July 1, 2012.
 1608         Section 39. Paragraph (b) of subsection (2) of section
 1609  941.38, Florida Statutes, is amended to read:
 1610         941.38 Extradition of persons alleged to be of unsound
 1611  mind.—
 1612         (2) For the purpose of this section:
 1613         (b) A “mentally incompetent person” is one who because of
 1614  mental illness, intellectual disability mental retardation,
 1615  senility, excessive use of drugs or alcohol, or other mental
 1616  incapacity is incapable of either managing his or her property
 1617  or caring for himself or herself or both.
 1618         Section 40. Section 944.602, Florida Statutes, is amended
 1619  to read:
 1620         944.602 Agency notification before release of
 1621  intellectually disabled mentally retarded inmates.—Before the
 1622  release by parole, release by reason of gain-time allowances
 1623  provided for in s. 944.291, or expiration of sentence of any
 1624  inmate who has been diagnosed as having an intellectual
 1625  disability mentally retarded as defined in s. 393.063, the
 1626  Department of Corrections shall notify the Agency for Persons
 1627  with Disabilities in order that sufficient time be allowed to
 1628  notify the inmate or the inmate’s representative, in writing, at
 1629  least 7 days before prior to the inmate’s release, of available
 1630  community services.
 1631         Section 41. Subsection (2) of section 945.025, Florida
 1632  Statutes, is amended to read:
 1633         945.025 Jurisdiction of department.—
 1634         (2) In establishing, operating, and using utilizing these
 1635  facilities, the department shall attempt, whenever possible, to
 1636  avoid the placement of nondangerous offenders who have potential
 1637  for rehabilitation with repeat offenders or dangerous offenders.
 1638  Medical, mental, and psychological problems must shall be
 1639  diagnosed and treated whenever possible. The Department of
 1640  Children and Family Services and the Agency for Persons with
 1641  Disabilities shall cooperate to ensure the delivery of services
 1642  to persons under the custody or supervision of the department.
 1643  If When it is the intent of the department intends to transfer a
 1644  mentally ill or retarded prisoner who has a mental illness or
 1645  intellectual disability to the Department of Children and Family
 1646  Services or the Agency for Persons with Disabilities, an
 1647  involuntary commitment hearing shall be held in accordance with
 1648  according to the provisions of chapter 393 or chapter 394.
 1649         Section 42. Subsection (5) of section 945.12, Florida
 1650  Statutes, is amended to read:
 1651         945.12 Transfers for rehabilitative treatment.—
 1652         (5) When the department plans to release an offender who is
 1653  a mentally ill or intellectually disabled retarded offender, an
 1654  involuntary commitment hearing shall be held as soon as possible
 1655  before prior to his or her release in accordance with, according
 1656  to the provisions of chapter 393 or chapter 394.
 1657         Section 43. Subsection (9) of section 945.42, Florida
 1658  Statutes, is amended to read:
 1659         945.42 Definitions; ss. 945.40-945.49.—As used in ss.
 1660  945.40-945.49, the following terms shall have the meanings
 1661  ascribed to them, unless the context shall clearly indicate
 1662  otherwise:
 1663         (9) “Mentally ill” means an impairment of the mental or
 1664  emotional processes that, of the ability to exercise conscious
 1665  control of one’s actions, or of the ability to perceive or
 1666  understand reality, which impairment substantially interferes
 1667  with the a person’s ability to meet the ordinary demands of
 1668  living. However, regardless of etiology, except that, for the
 1669  purposes of transferring transfer of an inmate to a mental
 1670  health treatment facility, the term does not include a
 1671  retardation or developmental disability as defined in s. 393.063
 1672  chapter 393, simple intoxication, or conditions manifested only
 1673  by antisocial behavior or substance abuse addiction. However, an
 1674  individual who is mentally retarded or developmentally disabled
 1675  may also have a mental illness.
 1676         Section 44. Section 947.185, Florida Statutes, is amended
 1677  to read:
 1678         947.185 Application for intellectual disability mental
 1679  retardation services as condition of parole.—The Parole
 1680  Commission may require as a condition of parole that any inmate
 1681  who has been diagnosed as having an intellectual disability
 1682  mentally retarded as defined in s. 393.063 shall, upon release,
 1683  apply for services from the Agency for Persons with
 1684  Disabilities.
 1685         Section 45. Subsection (4) of section 984.19, Florida
 1686  Statutes, is amended to read:
 1687         984.19 Medical screening and treatment of child;
 1688  examination of parent, guardian, or person requesting custody.—
 1689         (4) A judge may order that a child alleged to be or
 1690  adjudicated a child in need of services be treated by a licensed
 1691  health care professional. The judge may also order such child to
 1692  receive mental health or intellectual disability retardation
 1693  services from a psychiatrist, psychologist, or other appropriate
 1694  service provider. If it is necessary to place the child in a
 1695  residential facility for such services, then the procedures and
 1696  criteria established in s. 394.467 or chapter 393 shall be used,
 1697  as whichever is applicable. A child may be provided mental
 1698  health or retardation services in emergency situations, pursuant
 1699  to the procedures and criteria contained in s. 394.463(1) or
 1700  chapter 393, as whichever is applicable.
 1701         Section 46. Paragraph (a) of subsection (3) of section
 1702  985.14, Florida Statutes, is amended to read:
 1703         985.14 Intake and case management system.—
 1704         (3) The intake and case management system shall facilitate
 1705  consistency in the recommended placement of each child, and in
 1706  the assessment, classification, and placement process, with the
 1707  following purposes:
 1708         (a) An individualized, multidisciplinary assessment process
 1709  that identifies the priority needs of each individual child for
 1710  rehabilitation and treatment and identifies any needs of the
 1711  child’s parents or guardians for services that would enhance
 1712  their ability to provide adequate support, guidance, and
 1713  supervision for the child. This process begins shall begin with
 1714  the detention risk assessment instrument and decision, includes
 1715  shall include the intake preliminary screening and comprehensive
 1716  assessment for substance abuse treatment services, mental health
 1717  services, intellectual disability retardation services, literacy
 1718  services, and other educational and treatment services as
 1719  components, additional assessment of the child’s treatment
 1720  needs, and classification regarding the child’s risks to the
 1721  community and, for a serious or habitual delinquent child,
 1722  includes shall include the assessment for placement in a serious
 1723  or habitual delinquent children program under s. 985.47. The
 1724  completed multidisciplinary assessment process must shall result
 1725  in the predisposition report.
 1726         Section 47. Paragraph (g) of subsection (1) and subsection
 1727  (5) of section 985.145, Florida Statutes, are amended to read:
 1728         985.145 Responsibilities of juvenile probation officer
 1729  during intake; screenings and assessments.—
 1730         (1) The juvenile probation officer shall serve as the
 1731  primary case manager for the purpose of managing, coordinating,
 1732  and monitoring the services provided to the child. Each program
 1733  administrator within the Department of Children and Family
 1734  Services shall cooperate with the primary case manager in
 1735  carrying out the duties and responsibilities described in this
 1736  section. In addition to duties specified in other sections and
 1737  through departmental rules, the assigned juvenile probation
 1738  officer shall be responsible for the following:
 1739         (g) Comprehensive assessment.—The juvenile probation
 1740  officer, pursuant to uniform procedures established by the
 1741  department and upon determining that the report, affidavit, or
 1742  complaint is complete, shall:
 1743         1. Perform the preliminary screening and make referrals for
 1744  a comprehensive assessment regarding the child’s need for
 1745  substance abuse treatment services, mental health services,
 1746  intellectual disability retardation services, literacy services,
 1747  or other educational or treatment services.
 1748         2. If When indicated by the preliminary screening, provide
 1749  for a comprehensive assessment of the child and family for
 1750  substance abuse problems, using community-based licensed
 1751  programs with clinical expertise and experience in the
 1752  assessment of substance abuse problems.
 1753         3. If When indicated by the preliminary screening, provide
 1754  for a comprehensive assessment of the child and family for
 1755  mental health problems, using community-based psychologists,
 1756  psychiatrists, or other licensed mental health professionals who
 1757  have clinical expertise and experience in the assessment of
 1758  mental health problems.
 1759         (5) If the screening and assessment indicate that the
 1760  interests of the child and the public will be best served
 1761  thereby, the juvenile probation officer, with the approval of
 1762  the state attorney, may refer the child for care, diagnostic,
 1763  and evaluation services; substance abuse treatment services;
 1764  mental health services; intellectual disability retardation
 1765  services; a diversionary, arbitration, or mediation program;
 1766  community service work; or other programs or treatment services
 1767  voluntarily accepted by the child and the child’s parents or
 1768  legal guardian. If Whenever a child volunteers to participate in
 1769  any work program under this chapter or volunteers to work in a
 1770  specified state, county, municipal, or community service
 1771  organization supervised work program or to work for the victim,
 1772  the child is shall be considered an employee of the state for
 1773  the purposes of liability. In determining the child’s average
 1774  weekly wage, unless otherwise determined by a specific funding
 1775  program, all remuneration received from the employer is
 1776  considered a gratuity, and the child is not entitled to any
 1777  benefits otherwise payable under s. 440.15, regardless of
 1778  whether the child may be receiving wages and remuneration from
 1779  other employment with another employer and regardless of the
 1780  child’s future wage-earning capacity.
 1781         Section 48. Subsections (2) and (6) of section 985.18,
 1782  Florida Statutes, are amended to read:
 1783         985.18 Medical, psychiatric, psychological, substance
 1784  abuse, and educational examination and treatment.—
 1785         (2) If Whenever a child has been found to have committed a
 1786  delinquent act, or before such finding with the consent of any
 1787  parent or legal custodian of the child, the court may order the
 1788  child to be treated by a physician. The court may also order the
 1789  child to receive mental health, substance abuse, or intellectual
 1790  disability retardation services from a psychiatrist,
 1791  psychologist, or other appropriate service provider. If it is
 1792  necessary to place the child in a residential facility for such
 1793  services, the procedures and criteria established in chapter
 1794  393, chapter 394, or chapter 397, as whichever is applicable,
 1795  must shall be used. After a child has been adjudicated
 1796  delinquent, if an educational needs assessment by the district
 1797  school board or the Department of Children and Family Services
 1798  has been previously conducted, the court shall order the report
 1799  of such needs assessment included in the child’s court record in
 1800  lieu of a new assessment. For purposes of this section, an
 1801  educational needs assessment includes, but is not limited to,
 1802  reports of intelligence and achievement tests, screening for
 1803  learning and other disabilities and other handicaps, and
 1804  screening for the need for alternative education.
 1805         (6) A physician must shall be immediately notified by the
 1806  person taking the child into custody or the person having
 1807  custody if there are indications of physical injury or illness,
 1808  or the child shall be taken to the nearest available hospital
 1809  for emergency care. A child may be provided mental health,
 1810  substance abuse, or intellectual disability retardation
 1811  services, in emergency situations, pursuant to chapter 393,
 1812  chapter 394, or chapter 397, as whichever is applicable. After a
 1813  hearing, the court may order the custodial parent or parents,
 1814  guardian, or other custodian, if found able to do so, to
 1815  reimburse the county or state for the expense involved in such
 1816  emergency treatment or care.
 1817         Section 49. Paragraph (e) of subsection (1), subsections
 1818  (2) through (4), and paragraph (a) of subsection (6) of section
 1819  985.19, Florida Statutes, are amended to read:
 1820         985.19 Incompetency in juvenile delinquency cases.—
 1821         (1) If, at any time prior to or during a delinquency case,
 1822  the court has reason to believe that the child named in the
 1823  petition may be incompetent to proceed with the hearing, the
 1824  court on its own motion may, or on the motion of the child’s
 1825  attorney or state attorney must, stay all proceedings and order
 1826  an evaluation of the child’s mental condition.
 1827         (e) For incompetency evaluations related to intellectual
 1828  disability mental retardation or autism, the court shall order
 1829  the Agency for Persons with Disabilities to examine the child to
 1830  determine if the child meets the definition of “intellectual
 1831  disability” “retardation” or “autism” in s. 393.063 and, if so,
 1832  whether the child is competent to proceed with delinquency
 1833  proceedings.
 1834         (2) A child who is adjudicated incompetent to proceed, and
 1835  who has committed a delinquent act or violation of law, either
 1836  of which would be a felony if committed by an adult, must be
 1837  committed to the Department of Children and Family Services for
 1838  treatment or training. A child who has been adjudicated
 1839  incompetent to proceed because of age or immaturity, or for any
 1840  reason other than for mental illness, intellectual disability,
 1841  or retardation or autism, must not be committed to the
 1842  department or to the Department of Children and Family Services
 1843  for restoration-of-competency treatment or training services.
 1844  For purposes of this section, a child who has committed a
 1845  delinquent act or violation of law, either of which would be a
 1846  misdemeanor if committed by an adult, may not be committed to
 1847  the department or to the Department of Children and Family
 1848  Services for restoration-of-competency treatment or training
 1849  services.
 1850         (3) If the court finds that a child has mental illness,
 1851  intellectual disability mental retardation, or autism and
 1852  adjudicates the child incompetent to proceed, the court must
 1853  also determine whether the child meets the criteria for secure
 1854  placement. A child may be placed in a secure facility or program
 1855  if the court makes a finding by clear and convincing evidence
 1856  that:
 1857         (a) The child has mental illness, intellectual disability
 1858  mental retardation, or autism and because of the mental illness,
 1859  intellectual disability mental retardation, or autism:
 1860         1. The child is manifestly incapable of surviving with the
 1861  help of willing and responsible family or friends, including
 1862  available alternative services, and without treatment or
 1863  training the child is likely to either suffer from neglect or
 1864  refuse to care for self, and such neglect or refusal poses a
 1865  real and present threat of substantial harm to the child’s well
 1866  being; or
 1867         2. There is a substantial likelihood that in the near
 1868  future the child will inflict serious bodily harm on self or
 1869  others, as evidenced by recent behavior causing, attempting, or
 1870  threatening such harm; and
 1871         (b) All available less restrictive alternatives, including
 1872  treatment or training in community residential facilities or
 1873  community settings which would offer an opportunity for
 1874  improvement of the child’s condition, are inappropriate.
 1875         (4) A child who is determined to have mental illness,
 1876  intellectual disability mental retardation, or autism, who has
 1877  been adjudicated incompetent to proceed, and who meets the
 1878  criteria set forth in subsection (3), must be committed to the
 1879  Department of Children and Family Services and receive treatment
 1880  or training in a secure facility or program that is the least
 1881  restrictive alternative consistent with public safety. Any
 1882  placement of a child to a secure residential program must be
 1883  separate from adult forensic programs. If the child attains
 1884  competency, then custody, case management, and supervision of
 1885  the child shall will be transferred to the department in order
 1886  to continue delinquency proceedings; however, the court retains
 1887  authority to order the Department of Children and Family
 1888  Services to provide continued treatment or training to maintain
 1889  competency.
 1890         (a) A child adjudicated incompetent due to intellectual
 1891  disability mental retardation or autism may be ordered into a
 1892  secure program or facility designated by the Department of
 1893  Children and Family Services for children who have intellectual
 1894  disabilities with mental retardation or autism.
 1895         (b) A child adjudicated incompetent due to mental illness
 1896  may be ordered into a secure program or facility designated by
 1897  the Department of Children and Family Services for children
 1898  having mental illnesses.
 1899         (c) If Whenever a child is placed in a secure residential
 1900  facility, the department shall will provide transportation to
 1901  the secure residential facility for admission and from the
 1902  secure residential facility upon discharge.
 1903         (d) The purpose of the treatment or training is the
 1904  restoration of the child’s competency to proceed.
 1905         (e) The service provider must file a written report with
 1906  the court pursuant to the applicable Florida Rules of Juvenile
 1907  Procedure within not later than 6 months after the date of
 1908  commitment, or at the end of any period of extended treatment or
 1909  training, and at any time the Department of Children and Family
 1910  Services, through its service provider, determines the child has
 1911  attained competency or no longer meets the criteria for secure
 1912  placement, or at such shorter intervals as ordered by the court.
 1913  A copy of a written report evaluating the child’s competency
 1914  must be filed by the provider with the court and with the state
 1915  attorney, the child’s attorney, the department, and the
 1916  Department of Children and Family Services.
 1917         (6)(a) If a child is determined to have mental illness,
 1918  intellectual disability mental retardation, or autism and is
 1919  found to be incompetent to proceed but does not meet the
 1920  criteria set forth in subsection (3), the court shall commit the
 1921  child to the Department of Children and Family Services and
 1922  shall order the Department of Children and Family Services to
 1923  provide appropriate treatment and training in the community. The
 1924  purpose of the treatment or training is the restoration of the
 1925  child’s competency to proceed.
 1926         Section 50. Section 985.195, Florida Statutes, is amended
 1927  to read:
 1928         985.195 Transfer to other treatment services.—Any child
 1929  committed to the department may be transferred to intellectual
 1930  disability retardation, mental health, or substance abuse
 1931  treatment facilities for diagnosis and evaluation pursuant to
 1932  chapter 393, chapter 394, or chapter 397, as whichever is
 1933  applicable, for up to a period not to exceed 90 days.
 1934         Section 51. Paragraph (b) of subsection (1) of section
 1935  985.61, Florida Statutes, is amended to read:
 1936         985.61 Early delinquency intervention program; criteria.—
 1937         (1) The Department of Juvenile Justice shall, contingent
 1938  upon specific appropriation and with the cooperation of local
 1939  law enforcement agencies, the judiciary, district school board
 1940  personnel, the office of the state attorney, the office of the
 1941  public defender, the Department of Children and Family Services,
 1942  and community service agencies that work with children,
 1943  establish an early delinquency intervention program, the
 1944  components of which shall include, but not be limited to:
 1945         (b) Treatment modalities, including substance abuse
 1946  treatment services, mental health services, and retardation
 1947  services for intellectual disabilities.
 1948         Section 52. It is the intent of the Legislature that this
 1949  act not expand or contract the scope or application of any
 1950  provision of the Florida Statutes. This act may not be construed
 1951  to change the application of any provision of Florida Statutes
 1952  to any person.
 1953         Section 53. This act shall take effect July 1, 2012.