Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 1280
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/13/2018           .                                
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       The Committee on Children, Families, and Elder Affairs (Steube)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 204 - 486
    4  and insert:
    5         (g) The court Members of the examining committee shall pay
    6  what it determines to be receive a reasonable fee for the
    7  evaluation and testimony given by members of the examining
    8  committee to be determined by the court. The fees shall be paid
    9  from the general revenue fund of the county in which the person
   10  who has the intellectual disability or autism resided when the
   11  petition was filed.
   12         (6) COUNSEL; GUARDIAN AD LITEM.—
   13         (a) The person who has the intellectual disability or
   14  autism must be represented by counsel at all stages of the
   15  judicial proceeding, including annual hearings under subsection
   16  (15) which require a court to determine the continued need for a
   17  person’s involuntary placement resulting from an involuntary
   18  admission to residential services. If the person is indigent and
   19  cannot afford counsel, the court shall appoint a public defender
   20  at least 20 working days before the scheduled hearing. The
   21  person’s counsel shall have full access to the records of the
   22  service provider and the agency. In all cases, the attorney
   23  shall represent the rights and legal interests of the person,
   24  regardless of who initiates the proceedings or pays the attorney
   25  fee.
   26         (b) If the attorney, during the course of his or her
   27  representation, reasonably believes that the person who has the
   28  intellectual disability or autism cannot adequately act in his
   29  or her own interest, the attorney may seek the appointment of a
   30  guardian ad litem. A prior finding of incapacity incompetency is
   31  not required before a guardian ad litem is appointed pursuant to
   32  this section.
   33         (7) HEARING.—
   34         (a) The hearing for involuntary admission shall be
   35  conducted, and the order shall be entered, in the county in
   36  which the petition is filed. The hearing shall be conducted in a
   37  physical setting not likely to be injurious to the person’s
   38  condition. When a petition for involuntary admission to
   39  residential services is considered at a hearing, the court must
   40  consider whether there is an alternative to involuntary
   41  commitment under this section that will sufficiently address the
   42  person’s need for residential services. The court shall use the
   43  least restrictive means available to assist a person who is
   44  subject to a petition for involuntary admission to residential
   45  services. The court shall determine if the person has a guardian
   46  or guardian advocate and the scope of the authorized powers of
   47  the guardian or guardian advocate to make decisions regarding
   48  the residence, medical treatment, or other services necessary to
   49  sufficiently address the needs of the person.
   50         (b) A hearing on the petition must be held as soon as
   51  practicable after the petition is filed, but reasonable delay
   52  for the purpose of investigation, discovery, or procuring
   53  counsel or witnesses shall be granted.
   54         (c) The court may appoint a general or special magistrate
   55  to preside. Except as otherwise specified, the magistrate’s
   56  proceeding shall be governed by the Florida Rules of Civil
   57  Procedure.
   58         (d) The person who has the intellectual disability or
   59  autism must be physically present, either in person or by
   60  contemporaneous video communication technology, throughout the
   61  entire initial proceeding on the petition for involuntary
   62  admission to residential services. In accordance with Rule
   63  1.451, Florida Rules of Civil Procedure, the court may authorize
   64  testimony at the hearing by contemporaneous audio or video
   65  communication technology upon agreement of the parties or for
   66  good cause shown by written request of one party and by giving
   67  reasonable notice to all other parties. If the person’s attorney
   68  believes that the person’s presence at the hearing is not in his
   69  or her best interest, the person’s presence may be waived once
   70  the court has seen the person and the hearing has commenced.
   71         (e) The person has the right to present evidence and to
   72  cross-examine all witnesses and other evidence alleging the
   73  appropriateness of the person’s admission to residential
   74  services care. Other relevant and material evidence regarding
   75  the appropriateness of the person’s admission to residential
   76  services; the most appropriate, least restrictive residential
   77  placement; and the appropriate care, treatment, and habilitation
   78  of the person, including written or oral reports, may be
   79  introduced at the hearing by any interested person.
   80         (f) The petitioning commission may be represented by
   81  counsel at the hearing. The petitioning commission shall have
   82  the right to call witnesses, present evidence, cross-examine
   83  witnesses, and present argument on behalf of the petitioning
   84  commission.
   85         (g) All evidence shall be presented according to chapter
   86  90. The burden of proof shall be on the party alleging the
   87  appropriateness of the person’s admission to residential
   88  services. The burden of proof shall be by clear and convincing
   89  evidence.
   90         (h) All stages of each proceeding shall be recorded
   91  stenographically reported.
   92         (8) ORDER.—
   93         (a) In all cases, the court shall issue written findings of
   94  fact and conclusions of law to support its decision. The order
   95  must state the basis for the findings of fact.
   96         (b) An order of involuntary admission to residential
   97  services may not be entered unless the court finds that:
   98         1. The person is intellectually disabled or autistic;
   99         2. Placement in a residential setting is the least
  100  restrictive and most appropriate alternative to meet the
  101  person’s needs and the order specifies whether the recommended
  102  placement must be secure or nonsecure; and
  103         3. Because of the person’s degree of intellectual
  104  disability or autism, the person:
  105         a. Lacks sufficient capacity to give express and informed
  106  consent to a voluntary application for services pursuant to s.
  107  393.065, does not have a guardian or guardian advocate to
  108  consent to services on his or her behalf, and lacks basic
  109  survival and self-care skills to such a degree that close
  110  supervision and habilitation in a residential setting is
  111  necessary and, if not provided, would result in a real and
  112  present threat of substantial harm to the person’s well-being;
  113  or
  114         b. Is likely to physically injure others if allowed to
  115  remain at liberty.
  116         (c) If the evidence presented to the court is not
  117  sufficient to warrant involuntary admission to residential
  118  services, but the court feels that residential services would be
  119  beneficial, the court may recommend that the person seek
  120  voluntary admission.
  121         (d) If an order of involuntary admission to residential
  122  services provided by the agency is entered by the court, a copy
  123  of the written order shall be served upon the person and his or
  124  her guardian or guardian advocate if one has been appointed, the
  125  person’s counsel, the agency, and the state attorney and the
  126  person’s defense counsel, if applicable. The order of
  127  involuntary admission sent to the agency shall also be
  128  accompanied by a copy of the examining committee’s report and
  129  other reports contained in the court file.
  130         (e) The court may also order special provisions for
  131  residential services and adequate supervision of the person,
  132  when recommended by the agency, in order to ensure that the
  133  person is placed and maintained in the least restrictive, most
  134  appropriate setting. Special provisions may include auxiliary
  135  services that the agency provides to reduce risk and that the
  136  person must comply with to maintain community safety. Upon
  137  receiving the order, the agency shall, within 45 days, provide
  138  the court with a copy of the person’s family or individual
  139  support plan and copies of all examinations and evaluations,
  140  outlining the treatment and rehabilitative programs. The agency
  141  shall document that the person has been placed in the most
  142  appropriate, least restrictive and cost-beneficial residential
  143  setting. A copy of the family or individual support plan and
  144  other examinations and evaluations shall be served upon the
  145  person and the person’s counsel at the same time the documents
  146  are filed with the court.
  147         (9) EFFECT OF THE ORDER OF INVOLUNTARY ADMISSION TO
  148  RESIDENTIAL SERVICES.—
  149         (a) An order authorizing an admission to residential
  150  services care may not be considered an adjudication of mental
  151  incapacity incompetency. A person is not presumed incapacitated
  152  incompetent solely by reason of the person’s involuntary
  153  admission to residential services. A person may not be denied
  154  the full exercise of all legal rights guaranteed to citizens of
  155  this state and of the United States.
  156         (b) Any minor involuntarily admitted to residential
  157  services shall be evaluated pursuant to subsection (15) and,
  158  within the 6 months before upon reaching majority, be given a
  159  hearing to determine the continued appropriateness of his or her
  160  involuntary admission.
  161         (10) CAPACITY COMPETENCY.—
  162         (a) The issue of capacity competency is separate and
  163  distinct from a determination of the appropriateness of
  164  involuntary admission to residential services due to
  165  intellectual disability or autism.
  166         (b) The issue of the capacity competency of a person who
  167  has an intellectual disability or autism for purposes of
  168  assigning guardianship shall be determined in a separate
  169  proceeding according to the procedures and requirements of
  170  chapter 744.
  171         (11)COMPETENCY.—The issue of the competency of a person
  172  who has an intellectual disability or autism for purposes of
  173  determining whether the person is competent to proceed in a
  174  criminal trial shall be determined in accordance with chapter
  175  916.
  176         (12)(11) CONTINUING JURISDICTION.—The court that which
  177  issues the initial order for involuntary admission to
  178  residential services under this section has continuing
  179  jurisdiction to enter further orders to ensure that the person
  180  is receiving adequate care, treatment, habilitation, and
  181  rehabilitation, as recommended in the person’s individualized
  182  support plan including psychotropic medication and behavioral
  183  programming. Upon request, the court may transfer the continuing
  184  jurisdiction to the court where a client resides if it is
  185  different from where the original involuntary admission order
  186  was issued. A person may not be released from an order for
  187  involuntary admission to residential services except by the
  188  order of the court.
  189         (13)(12) APPEAL.—
  190         (a) Any party to the proceeding who is affected by an order
  191  of the court, including the agency, may appeal to the
  192  appropriate district court of appeal within the time and in the
  193  manner prescribed by the Florida Rules of Appellate Procedure.
  194         (b) The filing of an appeal by the person who has an
  195  intellectual disability or autism stays admission of the person
  196  into residential services care. The stay remains in effect
  197  during the pendency of all review proceedings in Florida courts
  198  until a mandate issues.
  199         (14)(13) HABEAS CORPUS.—At any time and without notice, any
  200  person involuntarily admitted into residential services care, or
  201  the person’s parent or legal guardian in his or her behalf, is
  202  entitled to file a petition for a writ of habeas corpus to
  203  question the cause, legality, and appropriateness of the
  204  person’s involuntary admission. Each person, or the person’s
  205  parent or legal guardian, shall receive specific written notice
  206  of the right to petition for a writ of habeas corpus at the time
  207  of his or her involuntary placement.
  208         (15)(14) REVIEW OF CONTINUED INVOLUNTARY ADMISSION TO
  209  RESIDENTIAL SERVICES.—
  210         (a) If a person is involuntarily admitted to residential
  211  services provided by the agency, the agency shall employ or, if
  212  necessary, contract with a qualified evaluator to conduct a
  213  review annually, unless otherwise ordered, to determine the
  214  propriety of the person’s continued involuntary admission to
  215  residential services based on the criteria in paragraph (8)(b).
  216  The review shall include an assessment of the most appropriate
  217  and least restrictive type of residential placement for the
  218  person. If the person was committed under the criteria in sub
  219  subparagraph (8)(b)3.a., the review must also address whether
  220  the person has had a guardian or guardian advocate appointed
  221  since the commitment.
  222         (b) A placement resulting from an involuntary admission to
  223  residential services must be reviewed by the court at a hearing
  224  annually, unless a shorter review period is ordered at a
  225  previous hearing. The agency shall provide to the court the
  226  completed review reviews by the qualified evaluator. The review
  227  and hearing must occur within 30 days after the court receives
  228  the review and determines determine whether the person continues
  229  to be eligible for agency services and meets meet the criteria
  230  in paragraph (8)(b) and, if so, whether the person still
  231  requires involuntary placement in a residential setting and
  232  whether the person is receiving adequate care, treatment,
  233  habilitation, and rehabilitation in the residential setting.
  234         (c) The agency shall provide a copy of the review and
  235  reasonable notice of the hearing to the appropriate state
  236  attorney, if applicable, the person, the person’s attorney, and
  237  the person’s guardian or guardian advocate, if appointed.
  238         (d) For purposes of this section, the term “qualified
  239  evaluator” means a psychiatrist licensed under chapter 458 or
  240  chapter 459, or a psychologist licensed under chapter 490, who
  241  has demonstrated to the court an expertise in the diagnosis,
  242  evaluation, and treatment of persons who have an intellectual
  243  disability or autism disabilities.
  244         Section 2. Section 916.301, Florida Statutes, is amended to
  245  read:
  246         916.301 Appointment of experts.—
  247         (1) All evaluations ordered by the court under this part
  248  must be conducted by a qualified expert experts who meets the
  249  requirements for a qualified evaluator as defined in s. 393.11
  250  have expertise in evaluating persons who have an intellectual
  251  disability or autism. The agency shall maintain and provide the
  252  courts annually with a list of available professionals who are
  253  appropriately licensed and qualified to perform evaluations of
  254  defendants alleged to be incompetent to proceed due to
  255  intellectual disability or autism. The courts may use
  256  professionals from this list when appointing experts and
  257  ordering evaluations under this part.
  258         (2) For a competency evaluation when If a defendant’s
  259  suspected mental condition is intellectual disability or autism,
  260  the court shall order the agency to select an expert to evaluate
  261  whether the defendant meets the definition of intellectual
  262  disability or autism and, if so, whether the defendant is
  263  incompetent to proceed due to intellectual disability or autism.
  264  appoint the following:
  265         (a)At least one, or At the request of any party, the court
  266  may appoint an additional expert or direct the agency to select
  267  an additional expert two experts to evaluate whether the
  268  defendant meets the definition of intellectual disability or
  269  autism and, if so, whether the defendant is competent to
  270  proceed; and
  271         (b)A psychologist selected by the agency who is licensed
  272  or authorized by law to practice in this state, with experience
  273  in evaluating persons suspected of having an intellectual
  274  disability or autism, and a social service professional, with
  275  experience in working with persons who have an intellectual
  276  disability or autism.
  277         1.The psychologist shall evaluate whether the defendant
  278  meets the definition of intellectual disability or autism and,
  279  if so, whether the defendant is incompetent to proceed due to
  280  intellectual disability or autism.
  281         2.The social service professional shall provide a social
  282  and developmental history of the defendant.
  283         (3) The experts may examine the defendant in jail, in
  284  another appropriate local facility, in a facility of the
  285  Department of Corrections, or on an outpatient basis.
  286         (4) Experts appointed by the court, including experts
  287  selected by the agency, to evaluate the mental condition of a
  288  defendant in a criminal case shall be allowed reasonable fees,
  289  as determined and paid by the court, for services rendered as
  290  evaluators and as witnesses, which shall be paid by the court.
  291  State employees shall be paid
  292  
  293  ================= T I T L E  A M E N D M E N T ================
  294  And the title is amended as follows:
  295         Delete line 10
  296  and insert:
  297         involuntary admission; requiring the court to pay
  298         reasonable fees for the evaluation and testimony by
  299         members of the examining committee; deleting a
  300         provision requiring such fees to be paid from each
  301         county’s general revenue fund; providing for
  302         participation of