Florida Senate - 2022                                    SB 1772
       
       
        
       By Senator Torres
       
       
       
       
       
       15-01268-22                                           20221772__
    1                        A bill to be entitled                      
    2         An act relating to supported decisionmaking for adults
    3         with disabilities; amending s. 393.063, F.S.; defining
    4         terms; amending s. 393.065, F.S.; revising a
    5         requirement that the Agency for Persons with
    6         Disabilities provide specified information to certain
    7         persons to conform to changes made by the act;
    8         amending s. 393.12, F.S.; revising the requirements
    9         for petitions to appoint guardian advocates for
   10         persons with developmental disabilities to conform to
   11         changes made by the act; creating s. 393.121, F.S.;
   12         authorizing adults with disabilities to enter into
   13         supported decisionmaking agreements under certain
   14         circumstances; prohibiting the use of such agreements
   15         as evidence of incapacity; providing that such
   16         agreements do not preclude a decisionmaker from acting
   17         independently; providing criteria for supporters;
   18         specifying actions supporters may be authorized to
   19         take pursuant to a supported decisionmaking agreement;
   20         requiring that a supporter act in good faith;
   21         authorizing adults with disabilities who have
   22         appointed guardian advocates to enter into supported
   23         decisionmaking agreements under certain circumstances;
   24         amending ss. 383.141 and 1002.394, F.S.; conforming
   25         cross-references; providing an effective date.
   26          
   27  Be It Enacted by the Legislature of the State of Florida:
   28  
   29         Section 1. Present subsections (11) through (42) and (43),
   30  (44), (45), and (46) of section 393.063, Florida Statutes, are
   31  redesignated as subsections (12) through (43) and (46), (47),
   32  (49), and (50), respectively, and new subsections (11), (44),
   33  (45), and (48) are added to that section, to read:
   34         393.063 Definitions.—For the purposes of this chapter, the
   35  term:
   36         (11)“Decisionmaker” means an adult with a disability who
   37  has entered into a supported decisionmaking agreement with at
   38  least one supporter.
   39         (44)“Supported decisionmaking” means a process of
   40  supporting an adult with a disability to assist him or her with
   41  understanding the options, responsibilities, and consequences of
   42  a life decision and enabling him or her to make a life decision
   43  without impeding self-determination.
   44         (45)“Supported decisionmaking agreement” means a written
   45  agreement between a decisionmaker and at least one supporter.
   46         (48)“Supporter” means a qualified adult who has entered
   47  into a supported decisionmaking agreement under s. 393.121.
   48         Section 2. Paragraph (a) of subsection (10) of section
   49  393.065, Florida Statutes, is amended, and paragraphs (b) and
   50  (c) of that subsection are republished, to read:
   51         393.065 Application and eligibility determination.—
   52         (10)(a) The agency shall provide the following information
   53  to all applicants or their parents, legal guardians, or family
   54  members:
   55         1. A brief overview of the vocational rehabilitation
   56  services offered through the Division of Vocational
   57  Rehabilitation of the Department of Education, including a
   58  hyperlink or website address that provides access to the
   59  application for such services;
   60         2. A brief overview of the Florida ABLE program as
   61  established under s. 1009.986, including a hyperlink or website
   62  address that provides access to the application for establishing
   63  an ABLE account as defined in s. 1009.986(2);
   64         3. A brief overview of the supplemental security income
   65  benefits and social security disability income benefits
   66  available under Title XVI of the Social Security Act, as
   67  amended, including a hyperlink or website address that provides
   68  access to the application for such benefits;
   69         4. A statement indicating that the applicant’s local public
   70  school district may provide specialized instructional services,
   71  including transition programs, for students with special
   72  education needs;
   73         5. A brief overview of programs and services funded through
   74  the Florida Center for Students with Unique Abilities, including
   75  contact information for each state-approved Florida
   76  Postsecondary Comprehensive Transition Program;
   77         6. A brief overview of decisionmaking options for
   78  individuals with disabilities, including supported
   79  decisionmaking under s. 393.121, guardianship under chapter 744,
   80  and alternatives to guardianship as defined in s. 744.334(1),
   81  which may include contact information for organizations that the
   82  agency believes would be helpful in assisting with such
   83  decisions;
   84         7. A brief overview of the referral tools made available
   85  through the agency, including a hyperlink or website address
   86  that provides access to such tools; and
   87         8. A statement indicating that some waiver providers may
   88  serve private-pay individuals.
   89         (b) The agency must provide the information required in
   90  paragraph (a) in writing to an applicant or his or her parent,
   91  legal guardian, or family member along with a written disclosure
   92  statement in substantially the following form:
   93  
   94                        DISCLOSURE STATEMENT                       
   95  
   96  Each program and service has its own eligibility requirements.
   97  By providing the information specified in section
   98  393.065(10)(a), Florida Statutes, the agency does not guarantee
   99  an applicant’s eligibility for or enrollment in any program or
  100  service.
  101         (c) The agency shall also publish the information required
  102  in paragraph (a) and the disclosure statement in paragraph (b)
  103  on its website, and shall provide that information and statement
  104  annually to each applicant placed on the waiting list or to the
  105  parent, legal guardian, or family member of such applicant.
  106         Section 3. Subsection (3), paragraph (a) of subsection (4),
  107  and subsection (7) of section 393.12, Florida Statutes, are
  108  amended to read:
  109         393.12 Capacity; appointment of guardian advocate.—
  110         (3) PETITION.—A petition to appoint a guardian advocate for
  111  a person with a developmental disability may be executed by an
  112  adult person who is a resident of this state. The petition must
  113  be verified and must:
  114         (a) State the name, age, and present address of the
  115  petitioner and his or her relationship to the person with a
  116  developmental disability;
  117         (b) State the name, age, county of residence, and present
  118  address of the person with a developmental disability;
  119         (c) Allege that the petitioner believes that the person
  120  needs a guardian advocate and specify the factual information on
  121  which such belief is based;
  122         (d) State any effort to use decisionmaking options before
  123  seeking a guardian advocate, including entering into a supported
  124  decisionmaking agreement under s. 393.121, a durable power of
  125  attorney under chapter 709, or an advance directive under
  126  chapter 765. The statement must include all of the following
  127  information:
  128         1.Each guardianship alternative that was considered or
  129  implemented.
  130         2.If a guardianship alternative was not considered or
  131  implemented, the reason why a guardianship alternative was not
  132  considered or implemented.
  133         3.Any reason why a guardianship alternative is
  134  insufficient to meet the needs of the person with a
  135  developmental disability;
  136         (e) Specify the exact areas in which the person lacks the
  137  decisionmaking ability to make informed decisions about his or
  138  her care and treatment services or to meet the essential
  139  requirements for his or her physical health or safety;
  140         (f)(e) Specify the legal disabilities to which the person
  141  is subject; and
  142         (g)(f) State the name of the proposed guardian advocate,
  143  the relationship of that person to the person with a
  144  developmental disability; the relationship that the proposed
  145  guardian advocate had or has with a provider of health care
  146  services, residential services, or other services to the person
  147  with a developmental disability; and the reason why this person
  148  should be appointed. If a willing and qualified guardian
  149  advocate cannot be located, the petition shall so state.
  150         (4) NOTICE.—
  151         (a) Notice of the filing of the petition must be given to
  152  the person with a developmental disability, verbally and in
  153  writing in the language of the person and in English. Notice
  154  must also be given to the next of kin of the person with a
  155  developmental disability under as defined in chapter 744, a
  156  health care surrogate designated under pursuant to an advance
  157  directive under chapter 765, an agent under a durable power of
  158  attorney, a supporter who has entered into a supported
  159  decisionmaking agreement under s. 393.121, and such other
  160  persons as the court may direct. A copy of the petition to
  161  appoint a guardian advocate must be served with the notice.
  162         (7) ADVANCE DIRECTIVES FOR HEALTH CARE, AND DURABLE POWER
  163  OF ATTORNEY, AND SUPPORTED DECISIONMAKING AGREEMENTS.—In each
  164  proceeding in which a guardian advocate is appointed under this
  165  section, the court shall determine whether the person with a
  166  developmental disability has executed any valid advance
  167  directive under chapter 765, or a durable power of attorney
  168  under chapter 709, or a supported decisionmaking agreement under
  169  s. 393.121.
  170         (a) If the person with a developmental disability has
  171  executed an advance directive, a or durable power of attorney,
  172  or a supported decisionmaking agreement, the court must consider
  173  and find whether the documents will sufficiently address the
  174  needs of the person with a developmental disability for whom the
  175  guardian advocate is sought. A guardian advocate may not be
  176  appointed if the court finds that the advance directive, or
  177  durable power of attorney, or supported decisionmaking agreement
  178  provides an alternative to the appointment of a guardian
  179  advocate which will sufficiently address the needs of the person
  180  with a developmental disability.
  181         (b) If an interested person seeks to contest an advance
  182  directive, a or durable power of attorney, or a supported
  183  decisionmaking agreement executed by a person with a
  184  developmental disability, the interested person must shall file
  185  a verified statement. The verified statement must shall include
  186  the factual basis for the belief that the advance directive, or
  187  durable power of attorney, or supported decisionmaking agreement
  188  is invalid or does not sufficiently address the needs of the
  189  person for whom a guardian advocate is sought or that the person
  190  with authority under the advance directive, or durable power of
  191  attorney, or supported decisionmaking agreement is abusing his
  192  or her power.
  193         (c) If an advance directive exists, the court must shall
  194  specify in its order and letters of guardian advocacy what
  195  authority, if any, the guardian advocate shall exercise over the
  196  person’s health care surrogate. Pursuant to the grounds listed
  197  in s. 765.105, the court, upon its own motion, may, with notice
  198  to the health care surrogate and any other appropriate parties,
  199  modify or revoke the authority of the health care surrogate to
  200  make health care decisions for the person with a developmental
  201  disability. For purposes of this section, the term “health care
  202  decision” has the same meaning as in s. 765.101.
  203         (d) If any durable power of attorney exists, the court must
  204  shall specify in its order and letters of guardian advocacy what
  205  powers of the agent, if any, are suspended and granted to the
  206  guardian advocate. The court, however, may not suspend any
  207  powers of the agent unless the court determines the durable
  208  power of attorney is invalid or there is an abuse by the agent
  209  of the powers granted.
  210         (e)If a supported decisionmaking agreement exists, the
  211  court must specify in its order and letters of guardian advocacy
  212  the part of the agreement which is suspended.
  213         Section 4. Section 393.121, Florida Statutes, is created to
  214  read:
  215         393.121Supported decisionmaking.—
  216         (1)An adult with a disability may enter into a supported
  217  decisionmaking agreement if he or she:
  218         (a)Voluntarily enters into the agreement without coercion
  219  or undue influence; and
  220         (b)Understands the nature and effect of the agreement.
  221         (2)The existence of a supported decisionmaking agreement
  222  may not be used as evidence of incapacity and does not preclude
  223  the decisionmaker from acting independently.
  224         (3)A supporter must be an adult and, unless he or she is
  225  an immediate family member of the decisionmaker, may not be:
  226         (a)An employer or employee of the decisionmaker;
  227         (b)A health care provider of the decisionmaker;
  228         (c) A creditor or debtor of the decisionmaker;
  229         (d) An employee or a contractor of a state agency who
  230  provides services directly to the decisionmaker;
  231         (e) A person who provides paid support services, excluding
  232  decisionmaking assistance, directly to the decisionmaker;
  233         (f) A landlord, nursing home, assisted living facility, or
  234  an employee of a landlord, nursing home, or assisted living
  235  facility of the decisionmaker; or
  236         (g) A person against whom a protective order or restraining
  237  order has been entered by a court at the request of or on behalf
  238  of the decisionmaker.
  239         (4) An adult with a disability may voluntarily, without
  240  undue influence or coercion, enter into a supported
  241  decisionmaking agreement that authorizes a supporter to:
  242         (a) Assist the decisionmaker in understanding the options,
  243  responsibilities, and consequences of life decisions;
  244         (b) Assist the decisionmaker in accessing, collecting, and
  245  obtaining information and records relevant to a life decision,
  246  including, but not limited to, medical, psychological,
  247  financial, educational, or treatment records, to which the
  248  decisionmaker is entitled, from any person or entity. Such
  249  information and records must include, but need not be limited
  250  to, protected health information under the Health Insurance
  251  Portability and Accountability Act of 1996, 42 U.S.C. s. 1320d;
  252  educational records under the Family Educational Rights and
  253  Privacy Act of 1974, 20 U.S.C. s. 1232g; information available
  254  under the Individuals with Disabilities Education Act, 20 U.S.C.
  255  ss. 1400, et seq.; or records of the identity, diagnosis,
  256  prognosis, or treatment of a patient maintained in connection
  257  with the performance of any program or activity relating to
  258  substance abuse, education, prevention, training, treatment,
  259  rehabilitation, or research which are protected by 42 U.S.C. s.
  260  290dd-2 and 42 C.F.R. part II;
  261         (c) Assist the decisionmaker in communicating his or her
  262  decisions; or
  263         (d) Access the decisionmaker’s personal information, to the
  264  extent authorized by the supported decisionmaking agreement.
  265         (5) A supporter shall act in good faith in all actions
  266  taken under the supported decisionmaking agreement.
  267         (6) An adult with a disability who has a guardian advocate
  268  may enter into a supported decisionmaking agreement if the
  269  guardian advocate grants written approval to do so. The adult
  270  with a disability does not need approval from the guardian
  271  advocate if the supported decisionmaking agreement only affects
  272  rights that were not removed by the court.
  273         Section 5. Paragraph (b) of subsection (1) of section
  274  383.141, Florida Statutes, is amended to read:
  275         383.141 Prenatally diagnosed conditions; patient to be
  276  provided information; definitions; information clearinghouse;
  277  advisory council.—
  278         (1) As used in this section, the term:
  279         (b) “Developmental disability” includes Down syndrome and
  280  other developmental disabilities defined by s. 393.063 s.
  281  393.063(12).
  282         Section 6. Paragraph (d) of subsection (2) of section
  283  1002.394, Florida Statutes, is amended to read:
  284         1002.394 The Family Empowerment Scholarship Program.—
  285         (2) DEFINITIONS.—As used in this section, the term:
  286         (d) “Disability” means, for a 3- or 4-year-old child or for
  287  a student in kindergarten to grade 12, autism spectrum disorder,
  288  as defined in the Diagnostic and Statistical Manual of Mental
  289  Disorders, Fifth Edition, published by the American Psychiatric
  290  Association; cerebral palsy, as defined in s. 393.063; Down
  291  syndrome, as defined in s. 393.063; an intellectual disability,
  292  as defined in s. 393.063; a speech impairment; a language
  293  impairment; an orthopedic impairment; another an other health
  294  impairment; an emotional or a behavioral disability; a specific
  295  learning disability, including, but not limited to, dyslexia,
  296  dyscalculia, or developmental aphasia; Phelan-McDermid syndrome,
  297  as defined in s. 393.063; Prader-Willi syndrome, as defined in
  298  s. 393.063; spina bifida, as defined in s. 393.063; being a
  299  high-risk child, as defined in s. 393.063(24)(a) s.
  300  393.063(23)(a); muscular dystrophy; Williams syndrome; rare
  301  diseases which affect patient populations of fewer than 200,000
  302  individuals in the United States, as defined by the National
  303  Organization for Rare Disorders; anaphylaxis; a hearing
  304  impairment, including deafness; a visual impairment, including
  305  blindness; traumatic brain injury; hospital or homebound; or
  306  identification as dual sensory impaired, as defined by rules of
  307  the State Board of Education and evidenced by reports from local
  308  school districts. The term “hospital or homebound” includes a
  309  student who has a medically diagnosed physical or psychiatric
  310  condition or illness, as defined by the state board in rule, and
  311  who is confined to the home or hospital for more than 6 months.
  312         Section 7. This act shall take effect July 1, 2022.