The Florida Senate

415.101  Adult Protective Services Act; legislative intent.

415.102  Definitions of terms used in ss. 415.101-415.113.

415.103  Central abuse registry and tracking system.

415.1034  Mandatory reporting of abuse, neglect, or exploitation of disabled adults or elderly persons; mandatory reports of death.

415.1035  Facility's duty to inform residents of their right to report abusive, neglectful, or exploitive practices.

415.1036  Immunity.

415.104  Protective services investigations of cases of abuse, neglect, or exploitation of aged persons or disabled adults; transmittal of records to state attorney.

415.1045  Protective investigations; onsite investigations; photographs, videotapes, and medical examinations; abrogation of privileged communications; confidential records and documents; classification or closure of records.

415.105  Provision of protective services with consent; withdrawal of consent.

415.1051  Protective services interventions when capacity to consent is lacking; nonemergencies; emergencies; orders; limitations.

415.1052  Interference with investigation or with the provision of protective services.

415.1055  Notification to administrative entities, subjects, and reporters; notification to law enforcement and state attorneys.

415.106  Cooperation by the department and criminal justice and other agencies.

415.1065  Records management.

415.107  Confidentiality of reports and records.

415.1075  Administrative remedies; request for amendment or expunction; appeals; excusable neglect or fraud; requests for exemption.

415.1085  Photographs, medical examinations, and X rays of abused or neglected aged persons or disabled adults.

415.109  Abrogation of privileged communications in cases involving abuse, neglect, or exploitation of aged persons or disabled adults.

415.1099  Court and witness fees not allowed.

415.1102  Adult protection teams; services; eligible cases.

415.1105  Training programs.

415.111  Criminal penalties.

415.1111  Civil penalties.

415.1113  Administrative fines for false report of abuse, neglect, or exploitation of a disabled adult or an elderly person.

415.1115  Civil actions involving elderly parties; speedy trial.

415.112  Rules for implementation of ss. 415.101-415.113.

415.113  Statutory construction; treatment by spiritual means.

415.101  Adult Protective Services Act; legislative intent.--

(1)  Sections 415.101-415.113 may be cited as the "Adult Protective Services Act."

(2)  The Legislature recognizes that there are many persons in this state who, because of age or disability, are in need of protective services. Such services should allow such an individual the same rights as other citizens and, at the same time, protect the individual from abuse, neglect, and exploitation. It is the intent of the Legislature to provide for the detection and correction of abuse, neglect, and exploitation through social services and criminal investigations and to establish a program of protective services for all disabled adults or elderly persons in need of them. It is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation of disabled adults or elderly persons. In taking this action, the Legislature intends to place the fewest possible restrictions on personal liberty and the exercise of constitutional rights, consistent with due process and protection from abuse, neglect, and exploitation. Further, the Legislature intends to encourage the constructive involvement of families in the care and protection of disabled adults or elderly persons.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 61, ch. 85-81; s. 27, ch. 86-220; s. 93, ch. 95-418.

415.102  Definitions of terms used in ss. 415.101-415.113.--As used in ss. 415.101-415.113, the term:

(1)  "Abuse" means the nonaccidental infliction of physical or psychological injury or sexual abuse upon a disabled adult or an elderly person by a relative, caregiver, or household member, or an action by any of those persons which could reasonably be expected to result in physical or psychological injury, or sexual abuse of a disabled adult or an elderly person by any person. "Abuse" also means the active encouragement of any person by a relative, caregiver, or household member to commit an act that inflicts or could reasonably be expected to result in physical or psychological injury to a disabled adult or an elderly person.

(2)  "Alleged perpetrator" means a person who has been named by a reporter as the person responsible for abusing, neglecting, or exploiting a disabled adult or an elderly person. "Alleged perpetrator" also means a person who has been named by an adult protective investigator, in a report that has been classified as proposed confirmed, as the person responsible for abusing, neglecting, or exploiting a disabled adult or an elderly person.

(3)  "Capacity to consent" means that a disabled adult or elderly person has sufficient understanding to make and communicate responsible decisions regarding the disabled adult's or elderly person's person or property, including whether or not to accept protective services offered by the department.

(4)  "Caregiver" means a person who has been entrusted with or has assumed the responsibility for frequent and regular care of or services to a disabled adult or an elderly person on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. "Caregiver" includes, but is not limited to, relatives, household members, guardians, neighbors, and employees and volunteers of facilities as defined in ¹subsection (13). For the purpose of departmental investigative jurisdiction, the term "caregiver" does not include law enforcement officers or employees of municipal or county detention facilities or the Department of Corrections while acting in an official capacity.

(5)  "Closed without classification" means the closure of a report in which an adult protective investigator determines that:

(a)  Some evidence exists that abuse, neglect, or exploitation has occurred, but a preponderance of evidence cannot be established; or

(b)  A preponderance of the evidence exists that abuse, neglect, or exploitation has occurred, but no perpetrator can be identified.

(6)  "Confirmed report" means a proposed confirmed report that has been determined to be valid after a hearing under s. 415.1075(2), a proposed confirmed report for which the alleged perpetrator has failed to request amendment or expunction within the time allotted for such a request under s. 415.1075(1), or a proposed confirmed report for which the alleged perpetrator has failed to request an administrative hearing within the time allotted by s. 415.1075(2).

(7)  "Criminal justice agency" means any court, any law enforcement agency, or any government agency or subunit thereof as defined under s. 943.045(10).

(8)  "Deception" means a misrepresentation or concealment of a material fact relating to services rendered, disposition of property, or the use of property intended to benefit a disabled adult or an elderly person.

(9)  "Department" means the Department of Children and Family Services.

(10)  "Disabled adult" means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that substantially restrict the ability to perform the normal activities of daily living.

(11)  "Disabled adult in need of services" means a disabled adult who has been determined by an adult protective services investigator to be suffering from the ill effects of neglect not caused by a second party perpetrator and is in need of protective services or other services to prevent further harm.

(12)  "Elderly person" means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning to the extent that the ability of the person to provide adequately for the person's own care or protection is impaired.

(13)  "Elderly person in need of services" means an elderly person who has been determined by an adult protective services investigator to be suffering from the ill effects of neglect not caused by a second party perpetrator and is in need of protective services or other services to prevent further harm.

(14)(a)  "Exploitation" means a person who:

1.  Stands in a position of trust and confidence with a disabled adult or an elderly person and knowingly, by deception or intimidation, obtains or uses, or endeavors to obtain or use, a disabled adult's or an elderly person's funds, assets, or property with the intent to temporarily or permanently deprive a disabled adult or an elderly person of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the disabled adult or elderly person; or

2.  Knows or should know that the disabled adult or elderly person lacks the capacity to consent, and obtains or uses, or endeavors to obtain or use, the disabled adult's or elderly person's funds, assets, or property with the intent to temporarily or permanently deprive the disabled adult or elderly person of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the disabled adult or elderly person.

(b)  "Exploitation" may include, but is not limited to:

1.  Breaches of fiduciary relationships, such as the misuse of a power of attorney or the abuse of guardianship duties, resulting in the unauthorized appropriation, sale, or transfer of property;

2.  Unauthorized taking of personal assets;

3.  Misappropriation, misuse, or transfer of moneys belonging to a disabled adult or elderly person from a personal or joint account; or

4.  Intentional or negligent failure to effectively use a disabled adult's or elderly person's income and assets for the necessities required for that person's support and maintenance.

(15)  "Facility" means any location providing day or residential care or treatment for disabled adults or elderly persons. The term "facility" may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, or mental health treatment center.

(16)  "False report" means a report of abuse, neglect, or exploitation of a disabled adult or an elderly person to the central abuse registry and tracking system which is unfounded and is maliciously made for the purpose of:

(a)  Harassing, embarrassing, or harming another person;

(b)  Personal financial gain for the reporting person;

(c)  Acquiring custody of a disabled adult or an elderly person; or

(d)  Personal benefit for the reporting person in any other private dispute involving a disabled adult or an elderly person.

The term "false report" does not include a report of abuse, neglect, or exploitation of a disabled adult or an elderly person which is made in good faith to the central abuse registry and tracking system and which is classified as unfounded at the conclusion of the investigation.

(17)  "Fiduciary relationship" means a relationship based upon the trust and confidence of the disabled adult or elderly person in the caregiver, relative, household member, or other person entrusted with the use or management of the property or assets of the disabled adult or elderly person. The relationship exists where there is a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the disabled adult or elderly person. For the purposes of this part, a fiduciary relationship may be formed by an informal agreement between the disabled adult or elderly person and the other person and does not require a formal declaration or court order for its existence. A fiduciary relationship includes, but is not limited to, court-appointed or voluntary guardians, trustees, or conservators of a disabled adult's or an elderly person's assets or property.

(18)  "Guardian" means a person who has been appointed by a court to act on behalf of a person; a preneed guardian, as provided in chapter 744; or a health care surrogate expressly designated by a principal to make health care decisions on behalf of the principal upon the principal's incapacity, as provided in chapter 765.

(19)  "In-home services" means the provision of nursing, personal care, supervision, or other services to disabled adults or elderly persons in their own homes.

(20)  "Intimidation" means the communication by word or act to a disabled adult or an elderly person that that person will be deprived of food, nutrition, clothing, shelter, supervision, medicine, medical services, money, or financial support or will suffer physical violence.

(21)  "Lacks capacity to consent" means a mental impairment that causes a disabled adult or an elderly person to lack sufficient understanding or capacity to make or communicate responsible decisions concerning the disabled adult's or elderly person's person or property, including whether or not to accept protective services offered by the department.

(22)  "Neglect" means the failure or omission on the part of the caregiver or disabled adult or elderly person to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a disabled adult or an elderly person. The term "neglect" also means the failure of a caregiver to make a reasonable effort to protect a disabled adult or an elderly person from abuse, neglect, or exploitation by others. "Neglect" is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

(23)  "No jurisdiction" means the disposition of a report that the department does not investigate because the report does not meet the criteria specified in ss. 415.101-415.113.

(24)  "Obtains or uses" means any manner of:

(a)  Taking or exercising control over property; or

(b)  Making any use, disposition, or transfer of property.

(25)  "Perpetrator" means the person who has been named as causing abuse, neglect, or exploitation of a disabled adult or an elderly person in a report that has been classified as confirmed.

(26)  "Position of trust and confidence" with respect to a disabled adult or an elderly person means the position of a person who:

(a)  Is a parent, spouse, adult child, or other relative by blood or marriage of the disabled adult or elderly person;

(b)  Is a joint tenant or tenant in common with the disabled adult or elderly person;

(c)  Has a legal or fiduciary relationship with the disabled adult or elderly person, including, but not limited to, a court-appointed or voluntary guardian, trustee, attorney, or conservator; or

(d)  Is a caregiver of the disabled adult or elderly person or any other person who has been entrusted with or has assumed responsibility for the use or management of the elderly person's or disabled adult's funds, assets, or property.

(27)  "Property" means anything of value, and includes:

(a)  Real property, including things growing on, affixed to, and found in land.

(b)  Tangible personal property, including, but not limited to, furniture, jewelry, or clothing and intangible personal property, including rights, privileges, interests, and claims.

(28)  "Proposed confirmed report" means a report of abuse, neglect, or exploitation which is made pursuant to s. 415.1034 when an adult protective investigation alleges that there is a preponderance of evidence that abuse, neglect, or exploitation occurred and which identifies the alleged perpetrator.

(29)  "Protective investigator" means an employee of the department responsible for:

(a)  The onsite investigation, classification, and disposition of all reports alleging abuse, neglect, or exploitation of a disabled adult or an elderly person;

(b)  The determination of immediate risk to a disabled adult or an elderly person, which determination must include the provision of emergency services and the arrangement for immediate in-home and nonemergency services to prevent the recurrence of further abuse, neglect, or exploitation; and

(c)  The evaluation of the need for and referrals to ongoing protective services for a disabled adult or an elderly person.

(30)  "Protective services" means the provision or arrangement of services to protect a disabled adult or an elderly person from further occurrences of abuse, neglect, or exploitation. Such services may include, but are not limited to, protective supervision, placement, and in-home and community-based services.

(31)  "Protective supervision" means those services arranged for or implemented by the department to protect disabled adults or elderly persons from further occurrences of abuse, neglect, or exploitation during an investigation or following a report that has been classified as proposed confirmed or confirmed, or has been closed without classification.

(32)  "Psychological injury" means an injury to the intellectual functioning or emotional state of a disabled adult or an elderly person as evidenced by an observable or measurable reduction in the disabled adult's or elderly person's ability to function within that person's customary range of performance and that person's behavior.

(33)  "Records" means all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, videotapes, or other material, regardless of physical form or characteristics, made or received pursuant to an adult protective investigation.

(34)  "Sexual abuse" means acts of a sexual nature committed for the sexual gratification of the abuser and in the presence of a disabled adult or an elderly person without that person's informed consent. "Sexual abuse" includes, but is not limited to, the acts defined in s. 794.011(1)(h), fondling, exposure of a disabled adult's or elderly person's sexual organs, or the use of a disabled adult or an elderly person to solicit for or engage in prostitution or sexual performance. "Sexual abuse" does not include any act intended for a valid medical purpose or any act that may reasonably be construed to be normal caregiving action or appropriate display of affection.

(35)  "Specified medical personnel" means licensed or certified physicians, osteopathic physicians, nurses, paramedics, advanced registered nurse practitioners, psychologists, psychiatrists, mental health professionals, or any other licensed or certified medical personnel.

(36)  "Unfounded report" means a report made pursuant to s. 415.1034 in which the department determines that no evidence of abuse, neglect, or exploitation exists.

(37)  "Victim" means any disabled adult or elderly person named in a report of abuse, neglect, or exploitation.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 28, ch. 86-220; s. 29, ch. 87-238; s. 26, ch. 89-294; s. 1, ch. 90-50; s. 44, ch. 90-306; s. 1, ch. 91-57; s. 35, ch. 95-210; s. 94, ch. 95-418; s. 9, ch. 97-98; s. 127, ch. 97-101; s. 41, ch. 97-264; s. 1, ch. 98-182.

¹Note.--Redesignated subsection (15) by s. 1, ch. 98-182.

415.103  Central abuse registry and tracking system.--

(1)  The department shall establish and maintain a central abuse registry and tracking system that receives all reports made pursuant to s. 415.1034 in writing or through a single statewide toll-free telephone number. Any person may use the statewide toll-free telephone number to report known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person at any hour of the day or night, any day of the week. The central abuse registry and tracking system must be operated in such a manner as to enable the department to:

(a)  Accept reports for investigation when there is a reasonable cause to suspect that a disabled adult or an elderly person has been or is being abused, neglected, or exploited.

(b)  Determine whether the allegations made by the reporter require an immediate, 24-hour, or next-working-day response priority.

(c)  When appropriate, refer calls that do not allege the abuse, neglect, or exploitation of a disabled adult or an elderly person to other organizations that might better resolve the reporter's concerns.

(d)  Immediately identify and locate prior reports of abuse, neglect, or exploitation through the central abuse registry and tracking system.

(e)  Track critical steps in the investigative process to ensure compliance with all requirements for all reports.

(f)  Maintain data to facilitate the production of aggregate statistical reports for monitoring patterns of abuse, neglect, or exploitation of disabled adults or elderly persons.

(g)  Serve as a resource for the evaluation, management, and planning of preventive and remedial services for disabled adults or elderly persons who have been subject to abuse, neglect, or exploitation.

(2)  Upon receiving an oral or written report of known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person, the central abuse registry and tracking system must determine if the report requires an immediate onsite protective investigation. For reports requiring an immediate onsite protective investigation, the central abuse registry and tracking system must immediately notify the department's designated adult protective investigative district staff responsible for protective investigations to ensure prompt initiation of an onsite investigation. For reports not requiring an immediate onsite protective investigation, the central abuse registry and tracking system must notify the department's designated adult protective investigative district staff responsible for protective investigations in sufficient time to allow for an investigation to be commenced within 24 hours. At the time of notification of district staff with respect to the report, the central abuse registry and tracking system must also provide any known information on any previous report concerning a subject of the present report or any pertinent information relative to the present report or any noted earlier reports.

(3)  The department shall set standards, priorities, and policies to maximize the efficiency and effectiveness of the central abuse registry and tracking system.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 67, ch. 86-163; s. 29, ch. 86-220; s. 30, ch. 87-238; s. 16, ch. 88-337; s. 27, ch. 89-294; s. 2, ch. 90-50; s. 45, ch. 90-306; s. 2, ch. 91-57; s. 14, ch. 91-71; s. 36, ch. 95-210; s. 95, ch. 95-418.

415.1034  Mandatory reporting of abuse, neglect, or exploitation of disabled adults or elderly persons; mandatory reports of death.--

(1)  MANDATORY REPORTING.--

(a)  Any person, including, but not limited to, any:

1.  Physician, osteopathic physician, medical examiner, chiropractic physician, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of disabled adults or elderly persons;

2.  Health professional or mental health professional other than one listed in subparagraph 1.;

3.  Practitioner who relies solely on spiritual means for healing;

4.  Nursing home staff; assisted living facility staff; adult day care center staff; adult family-care home staff; social worker; or other professional adult care, residential, or institutional staff;

5.  State, county, or municipal criminal justice employee or law enforcement officer;

6.  Human rights advocacy committee or long-term care ombudsman council member; or

7.  Bank, savings and loan, or credit union officer, trustee, or employee,

who knows, or has reasonable cause to suspect, that a disabled adult or an elderly person has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse registry and tracking system on the single statewide toll-free telephone number.

(b)  To the extent possible, a report made pursuant to paragraph (a) must contain, but need not be limited to, the following information:

1.  Name, age, race, sex, physical description, and location of each disabled adult or an elderly person alleged to have been abused, neglected, or exploited.

2.  Names, addresses, and telephone numbers of the disabled adult's or elderly person's family members.

3.  Name, address, and telephone number of each alleged perpetrator.

4.  Name, address, and telephone number of the caregiver of the disabled adult or elderly person, if different from the alleged perpetrator.

5.  Name, address, and telephone number of the person reporting the alleged abuse, neglect, or exploitation.

6.  Description of the physical or psychological injuries sustained.

7.  Actions taken by the reporter, if any, such as notification of the criminal justice agency.

8.  Any other information available to the reporting person which may establish the cause of abuse, neglect, or exploitation that occurred or is occurring.

(2)  MANDATORY REPORTS OF DEATH.--Any person who is required to investigate reports of abuse, neglect, or exploitation and who has reasonable cause to suspect that a disabled adult or an elderly person died as a result of abuse, neglect, or exploitation shall immediately report the suspicion to the appropriate medical examiner, to the appropriate criminal justice agency, and to the department, notwithstanding the existence of a death certificate signed by a practicing physician. The medical examiner shall accept the report for investigation pursuant to s. 406.11 and shall report the findings of the investigation, in writing, to the appropriate local criminal justice agency, the appropriate state attorney, and the department. Autopsy reports maintained by the medical examiner are not subject to the confidentiality requirements provided for in s. 415.107.

History.--s. 96, ch. 95-418; s. 10, ch. 97-98; s. 42, ch. 97-264; s. 256, ch. 98-166.

415.1035  Facility's duty to inform residents of their right to report abusive, neglectful, or exploitive practices.--

(1)  Every facility that serves disabled adults or elderly persons must inform residents of their right to report abusive, neglectful, or exploitive practices and must establish appropriate policies and procedures to facilitate such reporting.

(2)  The statewide toll-free telephone number for the central abuse registry and tracking system must be posted in all facilities operated by, under contract with, or licensed by the department or the Agency for Health Care Administration which provide services to disabled adults or elderly persons. Such posting must be clearly visible and in a prominent place within the facility and must be accompanied by the words, "To Report the Abuse, Neglect, or Exploitation of a Disabled Adult or an Elderly Person, Please Call:_____."

History.--s. 97, ch. 95-418.

415.1036  Immunity.--

(1)  Any person who participates in making a report under s. 415.1034 or participates in a judicial proceeding resulting therefrom is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from any liability, civil or criminal, that otherwise might be incurred or imposed. This section does not grant immunity, civil or criminal, to any person who is suspected of having abused, neglected, or exploited, or committed any illegal act upon or against, a disabled adult or an elderly person. Further, a resident or employee of a facility that serves disabled adults or elderly persons may not be subjected to reprisal or discharge because of the resident's or employee's actions in reporting abuse, neglect, or exploitation pursuant to s. 415.1034.

(2)  Any person who makes a report under s. 415.1034 has a civil cause of action for appropriate compensatory and punitive damages against any person who causes detrimental changes in the employment status of the reporting party by reason of the reporting party's making the report. Any detrimental change made in the residency or employment status of such a person, such as, but not limited to, discharge, termination, demotion, transfer, or reduction in pay or benefits or work privileges, or negative evaluations, within 120 days after the report is made establishes a rebuttable presumption that the detrimental action was retaliatory.

History.--s. 98, ch. 95-418.

415.104  Protective services investigations of cases of abuse, neglect, or exploitation of aged persons or disabled adults; transmittal of records to state attorney.--

(1)  The department shall, upon receipt of a report alleging abuse, neglect, or exploitation of an aged person or disabled adult, commence, or cause to be commenced within 24 hours, a protective services investigation of the facts alleged therein. If, upon arrival of the protective investigator at the scene of the incident, a caregiver refuses to allow the department to begin a protective services investigation or interferes with the department's ability to conduct such an investigation, the appropriate law enforcement agency shall be contacted to assist the department in commencing the protective services investigation. If, during the course of the investigation, the department has reason to believe that the abuse, neglect, or exploitation is perpetrated by a second party, the appropriate criminal justice agency and state attorney shall be orally notified in order that such agencies may begin a criminal investigation concurrent with the protective services investigation of the department. In an institutional investigation, the alleged perpetrator may be represented by an attorney, at his or her own expense, or accompanied by another person, if the person or the attorney executes an affidavit of understanding with the department and agrees to comply with the confidentiality provisions of s. 415.107. The absence of an attorney or other person does not prevent the department from proceeding with other aspects of the investigation, including interviews with other persons. The department shall make a preliminary written report to the criminal justice agencies within 5 working days after the oral report. The department shall, within 24 hours after receipt of the report, notify the appropriate human rights advocacy committee, or long-term care ombudsman council, when appropriate, that an alleged abuse, neglect, or exploitation perpetrated by a second party has occurred. Notice to the human rights advocacy committee or long-term care ombudsman council may be accomplished orally or in writing and shall include the name and location of the aged person or disabled adult alleged to have been abused, neglected, or exploited and the nature of the report. For each report it receives, the department shall perform an onsite investigation to:

(a)  Determine that the person is an aged person or disabled adult as defined in s. 415.102.

(b)  Determine the composition of the family or household, including the name, address, date of birth, social security number, sex, and race of each aged person or disabled adult named in the report; any others in the household or in the care of the caregiver, or any other persons responsible for the aged person's or disabled adult's welfare; and any other adults in the same household.

(c)  Determine whether there is an indication that any aged person or disabled adult is abused, neglected, or exploited, including a determination of harm or threatened harm to any aged person or disabled adult; the nature and extent of present or prior injuries, abuse, or neglect, and any evidence thereof; and a determination as to the person or persons apparently responsible for the abuse, neglect, or exploitation, including the name, address, date of birth, social security number, sex, and race of each person to be classified as an alleged perpetrator in a proposed confirmed report. An alleged perpetrator named in a proposed confirmed report of abuse, neglect, or exploitation shall cooperate in the provision of the required data for the central abuse registry and tracking system to the fullest extent possible.

(d)  Determine the immediate and long-term risk to each aged person or disabled adult through utilization of standardized risk assessment instruments.

(e)  Determine the protective, treatment, and ameliorative services necessary to safeguard and ensure the aged person's or disabled adult's well-being and cause the delivery of those services through the early intervention of the departmental worker responsible for service provision and management of identified services.

(2)  No later than 30 days after receiving the initial report, the designated adult services staff of the department shall complete its investigation and classify the report as proposed confirmed or unfounded or close the report without classification and notify the guardian of the aged person or disabled adult, the aged person or disabled adult, and the alleged perpetrator. These findings must be reported to the department's central abuse registry and tracking system. For proposed confirmed reports, after receiving the final administrative order rendered in a hearing requested pursuant to ¹s. 415.103(3)(d) or after the 30-day period during which an alleged perpetrator may request such a hearing has expired, the department shall classify the report of abuse, neglect, or exploitation as confirmed or unfounded and shall report its findings to the department's central abuse registry and tracking system, and must do so in accordance with the final order if a hearing was held.

(3)  Whenever the criminal justice agency and the department have conducted independent investigations, the criminal justice agency shall, within 5 working days after concluding its investigation, report its findings from its investigation to the state attorney and to the department.

(4)  Upon receipt of a report which alleges that an employee or agent of the department acting in an official capacity has committed an act of abuse, neglect, or exploitation, the department shall commence, or cause to be commenced within 24 hours, a protective services investigation and shall notify the state attorney in whose circuit the alleged abuse, neglect, or exploitation occurred.

(5)  With respect to any case of reported abuse, neglect, or exploitation of an aged person or disabled adult, the department, when appropriate, shall transmit all reports received by it which pertain to the investigation to the state attorney of the circuit where the incident occurred.

(6)  Within 15 days of completion of the state attorney's investigation of a case reported to him or her pursuant to this section, the state attorney shall report his or her findings to the department and shall include a determination of whether or not prosecution is justified and appropriate in view of the circumstances of the specific case.

(7)  The department shall not use a warning, reprimand, or disciplinary action against an employee found in that employee's personnel records as the sole basis for a finding of abuse, neglect, or exploitation.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 5, ch. 84-226; s. 2, ch. 85-143; s. 30, ch. 86-220; s. 31, ch. 87-238; s. 17, ch. 88-337; s. 28, ch. 89-294; s. 3, ch. 90-50; s. 46, ch. 90-306; s. 3, ch. 91-57; s. 64, ch. 97-103; s. 200, ch. 99-8.

¹Note.--Repealed by s. 95, ch. 95-418.

415.1045  Protective investigations; onsite investigations; photographs, videotapes, and medical examinations; abrogation of privileged communications; confidential records and documents; classification or closure of records.--

(1)  PROTECTIVE INVESTIGATIONS.--

(a)  The department shall, upon receipt of a report alleging abuse or neglect of a disabled adult or an elderly person, commence, or cause to be commenced within 24 hours, a protective investigation of the facts alleged therein. The department shall, upon receipt of a report alleging only the exploitation of a disabled adult or an elderly person, commence, or cause to be commenced within 24 hours, excluding Saturdays, Sundays, and legal holidays, a protective investigation of the facts alleged therein.

(b)  Upon commencing an investigation, the adult protective investigator shall inform all disabled adults and elderly persons and alleged perpetrators named in the report of the following:

1.  The names of the investigators and identifying credentials from the department.

2.  The purpose of the investigation.

3.  The possible consequences of the investigation.

4.  That the victim, the victim's guardian, the victim's caregiver, and the alleged perpetrator, and legal counsel for any of those persons, have a right to a copy of the report at the conclusion of the investigation.

5.  That appeal rights may exist and that such rights will be explained in writing when appropriate and necessary at the conclusion of the investigation.

6.  The name and telephone number of the adult protective investigator's supervisor available to answer questions.

(c)  Except as provided in paragraph (d), in an investigative interview, any person being interviewed may be represented by an attorney, at the person's own expense, or may choose to have another person present. The other person present may not be an alleged perpetrator in any report currently under investigation. Before participating in such interview, the other person present shall execute an agreement to comply with the confidentiality requirements of ss. 415.101-415.113. The absence of an attorney or other person does not prevent the department from proceeding with other aspects of the investigation, including interviews with other persons.

(d)  In an investigative interview with the disabled adult or an elderly person, the protective investigator may conduct the interview with no other person present.

(2)  ONSITE INVESTIGATIONS.--For each report it receives, the department shall perform an onsite investigation to:

(a)  Determine whether the person is a disabled adult or an elderly person as defined in s. 415.102.

(b)  Determine whether the person is a disabled adult in need of services or an elderly person in need of services, as defined in s. 415.102.

(c)  Determine whether there is an indication that any disabled adult or elderly person has been or is being abused, neglected, or exploited, including a determination of the immediate and long-term risk; the nature and extent of present or prior injuries; and the nature and extent of any abuse, neglect, or exploitation, and any evidence thereof.

(d)  Determine whether protective and ameliorative services are necessary to safeguard and ensure the disabled adult's or elderly person's well-being and cause the delivery of those services.

(e)  Determine the person or persons apparently responsible for the abuse, neglect, or exploitation.

(f)  Determine the composition of the family or household, including all disabled adults and elderly persons named in the report, all persons in the care of the caregiver, any other persons responsible for the disabled adult's or elderly person's welfare, and any other adults or children in the same household.

(g)  Gather appropriate demographic data. Each person must cooperate to the fullest extent possible by providing the person's name, address, date of birth, social security number, sex, and race to the department's representative.

(3)  PHOTOGRAPHS AND VIDEOTAPES.--

(a)  The adult protective investigator, while investigating a report of abuse, neglect, or exploitation, may take or cause to be taken photographs and videotapes of the disabled adult or elderly person, and of the disabled adult's or elderly person's environment, which are relevant to the investigation. All photographs and videotapes taken during the course of the protective investigation are confidential and exempt from public disclosure as provided in s. 415.107.

(b)  Any photographs or videotapes made pursuant to this subsection, or copies thereof, must be sent to the department as soon as possible.

(4)  MEDICAL EXAMINATIONS.--

(a)  With the consent of the disabled adult or elderly person who has the capacity to consent or the disabled adult's or elderly person's guardian, or pursuant to s. 415.1051, the department may cause the disabled adult or elderly person to be referred to a licensed physician or any emergency department in a hospital or health care facility for medical examination, diagnosis, or treatment if any of the following circumstances exist:

1.  The areas of trauma visible on the disabled adult or elderly person indicate a need for medical examination;

2.  The disabled adult or elderly person verbally complains or otherwise exhibits signs or symptoms indicating a need for medical attention as a consequence of suspected abuse, neglect, or exploitation; or

3.  The disabled adult or elderly person is alleged to have been sexually abused.

(b)  Upon admission to a hospital or health care facility, with the consent of the disabled adult or elderly person who has capacity to consent or that person's guardian, or pursuant to s. 415.1051, the medical staff of the facility may examine, diagnose, or treat the disabled adult or elderly person. If a person who has legal authority to give consent for the provision of medical treatment to a disabled adult or elderly person has not given or has refused to give such consent, examination and treatment must be limited to reasonable examination of the patient to determine the medical condition of the patient and treatment reasonably necessary to alleviate the medical condition or to stabilize the patient pending a determination by the court of the department's petition authorizing protective services. Any person may seek an expedited judicial intervention under rule 5.900 of the Florida Probate Rules concerning medical treatment procedures.

(c)  Medical examination, diagnosis, and treatment provided under this subsection must be paid for by third-party reimbursement, if available, or by the disabled adult or elderly person or that person's guardian from the disabled adult's or elderly person's assets, if the disabled adult or elderly person is determined to be financially able to pay; or, if the disabled adult or elderly person is unable to pay, the department shall pay the costs within available emergency services funds.

(d)  Reports of examination, diagnosis, and treatment made under this subsection, or copies thereof, must be sent to the department as soon as possible.

(e)  This subsection does not obligate the department to pay for any treatment other than that necessary to alleviate the immediate presenting problems.

(5)  ABROGATION OF PRIVILEGED COMMUNICATIONS.--The privileged quality of communication between husband and wife and between any professional and the professional's patient or client, and any other privileged communication except that between attorney and client or clergy and person, as such communication relates to both the competency of the witness and to the exclusion of confidential communications, does not apply to any situation involving known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person and does not constitute grounds for failure to report as required by s. 415.1034, for failure to cooperate with the department in its activities under ss. 415.101-415.113, or for failure to give evidence in any judicial or administrative proceeding relating to abuse, neglect, or exploitation of a disabled adult or an elderly person.

(6)  MEDICAL, SOCIAL, OR FINANCIAL RECORDS OR DOCUMENTS.--

(a)  The adult protective investigator, while investigating a report of abuse, neglect, or exploitation, must have access to, inspect, and copy all medical, social, or financial records or documents in the possession of any person, caregiver, guardian, or facility which are relevant to the allegations under investigation, unless specifically prohibited by the disabled adult or elderly person who has capacity to consent.

(b)  The confidentiality of any medical, social, or financial record or document that is confidential under state law does not constitute grounds for failure to:

1.  Report as required by s. 415.1034;

2.  Cooperate with the department in its activities under ss. 415.101-415.113;

3.  Give access to such records or documents; or

4.  Give evidence in any judicial or administrative proceeding relating to abuse, neglect, or exploitation of a disabled adult or an elderly person.

(7)  CLASSIFICATIONS AND CLOSURES.--No later than 45 days after receiving an initial report in which the department has jurisdiction, the adult protective investigator shall complete the investigation and classify the report as proposed confirmed or unfounded, or close the report without classification. The adult protective investigator must document the details of the investigation, close the report, and enter the data into the central abuse registry and tracking system no later than 60 days after receiving the initial report.

History.--s. 99, ch. 95-418; s. 2, ch. 98-182.

415.105  Provision of protective services with consent; withdrawal of consent.--

(1)  PROTECTIVE SERVICES WITH CONSENT.--If the department determines through its investigation that a disabled adult or an elderly person demonstrates a need for protective services or protective supervision, the department shall immediately provide, or arrange for the provision of, protective services or protective supervision, including in-home services, provided that the disabled adult or elderly person consents. A disabled person in need of services as defined in s. 415.102 shall be referred to the community care for disabled adults program. An elderly person in need of services as defined in s. 415.102 shall be referred to the community care for the elderly program administered by the Department of Elderly Affairs.

(2)  WITHDRAWAL OF CONSENT.--If the disabled adult or elderly person withdraws consent to the receipt of protective services or protective supervision, the services may not be provided, except pursuant to s. 415.1051.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 31, ch. 86-220; s. 29, ch. 89-294; s. 21, ch. 95-144; s. 37, ch. 95-210; s. 100, ch. 95-418; s. 3, ch. 98-182.

415.1051  Protective services interventions when capacity to consent is lacking; nonemergencies; emergencies; orders; limitations.--

(1)  NONEMERGENCY PROTECTIVE SERVICES INTERVENTIONS.--If the department has reasonable cause to believe that a disabled adult or elderly person is being abused, neglected, or exploited and is in need of protective services but lacks the capacity to consent to protective services, the department shall petition the court for an order authorizing the provision of protective services.

(a)  Nonemergency protective services petition.--The petition must state the name, age, and address of the disabled adult or elderly person, allege specific facts sufficient to show that the disabled adult or elderly person is in need of protective services and lacks the capacity to consent to them, and indicate the services needed.

(b)  Notice.--Notice of the filing of the petition and a copy of the petition must be given to the disabled adult or elderly person, to that person's spouse, guardian, legal counsel, and, when known, to the adult children or next of kin of the disabled adult or elderly person. Such notice must be given at least 5 days before the hearing.

(c)  Hearing.--

1.  The court shall set the case for hearing within 14 days after the filing of the petition. The disabled adult or elderly person and any person given notice of the filing of the petition have the right to be present at the hearing. The department must make reasonable efforts to ensure the presence of the disabled adult or elderly person at the hearing.

2.  The disabled adult or elderly person has the right to be represented by legal counsel at the hearing. The court shall appoint legal counsel to represent a disabled adult or elderly person who is without legal representation.

3.  The court shall determine whether:

a.  Protective services, including in-home services, are necessary for the disabled adult or elderly person; and

b.  The disabled adult or elderly person lacks the capacity to consent to the provision of such services.

(d)  Hearing findings.--If at the hearing the court finds by clear and convincing evidence that the disabled adult or elderly person is in need of protective services and lacks the capacity to consent to protective services, the court may issue an order authorizing the provision of protective services. If an order for protective services is issued, it must include a statement of the services to be provided and designate an individual or agency to be responsible for performing or obtaining the essential services on behalf of the disabled adult or elderly person or otherwise consenting to protective services on behalf of the disabled adult or elderly person.

(e)  Continued protective services.--

1.  No more than 60 days after the date of the order authorizing the provision of protective services, the department shall petition the court to determine whether:

a.  Protective services will be continued with the consent of the disabled adult or elderly person pursuant to subsection (1);

b.  Protective services will be continued for the disabled adult or elderly person who lacks capacity;

c.  Protective services will be discontinued; or

d.  A petition for guardianship should be filed pursuant to chapter 744.

2.  If the court determines that a petition for guardianship should be filed pursuant to chapter 744, the court, for good cause shown, may order continued protective services until it makes a determination regarding the disabled adult's or elderly person's capacity.

(f)  Costs.--The costs of services ordered under this section must be paid by the perpetrator if the perpetrator is financially able to do so; or by third-party reimbursement, if available. If the disabled adult or elderly person is unable to pay for guardianship, application may be made to the public guardian for public guardianship services, if available.

(2)  EMERGENCY PROTECTIVE SERVICES INTERVENTION.--If the department has reasonable cause to believe that a disabled adult or an elderly person is suffering from abuse or neglect that presents a risk of death or serious physical injury to the disabled adult or elderly person and that the disabled adult or elderly person lacks the capacity to consent to emergency protective services, the department may take action under this subsection. If the disabled adult or elderly person has the capacity to consent and refuses consent to emergency protective services, emergency protective services may not be provided.

(a)  Emergency entry of premises.--If, upon arrival at the scene of the incident, consent is not obtained for access to the alleged victim for purposes of conducting a protective investigation under this subsection and the department has reason to believe that the situation presents a risk of death or serious physical injury, a representative of the department and a law enforcement officer may forcibly enter the premises. If, after obtaining access to the alleged victim, it is determined through a personal assessment of the situation that no emergency exists and there is no basis for emergency protective services intervention under this subsection, the department shall terminate the emergency entry and may provide protective services with the consent of the disabled adult or elderly person or may petition the court to provide nonemergency protective services or protective supervision pursuant to subsection (1).

(b)  Emergency removal from premises.--If it appears that the disabled adult or elderly person lacks the capacity to consent to emergency protective services and that the disabled adult or elderly person, from the personal observations of the representative of the department and specified medical personnel or law enforcement officers, is likely to incur a risk of death or serious physical injury if such person is not immediately removed from the premises, then the representative of the department shall transport or arrange for the transportation of the disabled adult or elderly person to an appropriate medical or protective services facility in order to provide emergency protective services. Law enforcement personnel have a duty to transport when medical transportation is not available or needed and the disabled adult or elderly person presents a threat of injury to self or others. If the disabled adult's or elderly person's caregiver or guardian is present, the adult protective investigator must seek the caregiver's or guardian's consent pursuant to subsection (4) before the disabled adult or elderly person may be removed from the premises, unless the adult protective investigator suspects that the disabled adult's or elderly person's caregiver or guardian has caused the abuse, neglect, or exploitation to the disabled adult or elderly person. The department shall, within 24 hours after providing or arranging for emergency removal of the disabled adult or elderly person, excluding Saturdays, Sundays, and legal holidays, petition the court for an order authorizing emergency protective services.

(c)  Emergency medical treatment.--If, upon admission to a medical facility, it is the opinion of the medical staff that immediate medical treatment is necessary to prevent serious physical injury or death, and that such treatment does not violate a known health care advance directive prepared by the disabled adult or elderly person, the medical facility may proceed with treatment to the disabled adult or elderly person. If a person with legal authority to give consent for the provision of medical treatment to a disabled adult or an elderly person has not given or has refused to give such consent, examination and treatment must be limited to reasonable examination of the patient to determine the medical condition of the patient and treatment reasonably necessary to alleviate the emergency medical condition or to stabilize the patient pending court determination of the department's petition authorizing emergency protective services. Any person may seek an expedited judicial intervention under rule 5.900 of the Florida Probate Rules concerning medical treatment procedures.

(d)  Emergency protective services petition.--A petition filed under this subsection must state the name, age, and address of the disabled adult or elderly person and allege the facts constituting the emergency protective services intervention and subsequent removal of the disabled adult or elderly person or provision of in-home services, the facts relating to the capacity of the disabled adult or elderly person to consent to services, the efforts of the department to obtain consent, and the services needed or delivered.

(e)  Notice.--Notice of the filing of the emergency protective services petition and a copy of the petition must be given to the disabled adult or elderly person, to that person's spouse, to that person's guardian, if any, to legal counsel representing the disabled adult or elderly person, and, when known, to adult children or next of kin of the disabled adult or elderly person. Such notice must be given at least 24 hours before any hearing on the petition for emergency protective services.

(f)  Hearing.--When emergency removal has occurred under this subsection, a hearing must be held within 4 days after the filing of the emergency protective services petition, excluding Saturday, Sunday, and legal holidays, to establish reasonable cause for grounds to continue emergency protective services.

1.  The court shall determine, by clear and convincing evidence, whether an emergency existed which justified the emergency protective services intervention, whether the disabled adult or elderly person is in need of emergency protective services, whether the disabled adult or elderly person lacks the capacity to consent to emergency protective services, and whether:

a.  Emergency protective services will continue with the consent of the disabled adult or elderly person pursuant to s. 415.105(1);

b.  Emergency protective services will continue without the consent of the disabled adult or elderly person pursuant to subsection (2); or

c.  Emergency protective services will be discontinued.

2.  The disabled adult or elderly person has the right to be represented by legal counsel at the hearing. The court shall appoint legal counsel to represent a disabled adult or an elderly person who is without legal representation.

3.  The department must make reasonable efforts to ensure the presence of the disabled adult or elderly person at the hearing.

4.  If an order to continue emergency protective services is issued, it must state the services to be provided and designate an individual or agency to be responsible for performing or obtaining the essential services on behalf of the disabled adult or elderly person, or otherwise consenting to protective services on behalf of the disabled adult or elderly person.

(g)  Continued emergency protective services.--

1.  Not more than 60 days after the date of the order authorizing the provision of emergency protective services, the department shall petition the court to determine whether:

a.  Emergency protective services will be continued with the consent of the disabled adult or elderly person pursuant to subsection (1);

b.  Emergency protective services will be continued for the disabled adult or elderly person who lacks capacity;

c.  Emergency protective services will be discontinued; or

d.  A petition should be filed under chapter 744.

2.  If it is decided to file a petition under chapter 744, for good cause shown, the court may order continued emergency protective services until a determination is made by the court regarding the disabled adult's or elderly person's capacity.

(h)  Costs.--The costs of services ordered under this section must be paid by the perpetrator if the perpetrator is financially able to do so, or by third-party reimbursement, if available. If the disabled adult or elderly person is unable to pay for guardianship, application may be made to the public guardian for public guardianship services, if available.

(3)  PROTECTIVE SERVICES ORDER.--In ordering any protective services under this section, the court shall adhere to the following limitations:

(a)  Only such protective services as are necessary to ameliorate the conditions creating the abuse, neglect, or exploitation may be ordered, and the court shall specifically designate the approved services in the order of the court.

(b)  Protective services ordered may not include a change of residence, unless the court specifically finds such action is necessary to ameliorate the conditions creating the abuse, neglect, or exploitation and the court gives specific approval for such action in the order. Placement may be made to such facilities as adult family-care homes, assisted living facilities, or nursing homes, or to other appropriate facilities. Placement may not be made to facilities for the acutely mentally ill, except as provided in chapter 394.

(c)  If an order to continue emergency protective services is issued, it must include the designation of an individual or agency to be responsible for performing or obtaining the essential services on behalf of the disabled adult or elderly person or otherwise consenting to protective services on behalf of the disabled adult or elderly person.

(4)  PROTECTIVE SERVICES INTERVENTIONS WITH CAREGIVER OR GUARDIAN PRESENT.--

(a)  When a disabled adult or an elderly person who lacks the capacity to consent has been identified in a report as the victim of abuse, neglect, or exploitation and evidences a need for emergency or nonemergency protective services or protective supervision, and a caregiver or guardian who is responsible for the care of the disabled adult or elderly person is present, the adult protective investigator must first request consent from the caregiver or guardian before providing protective services or protective supervision, unless the adult protective investigator suspects that the disabled adult's or elderly person's caregiver or guardian has caused the abuse, neglect, or exploitation of the disabled adult or elderly person.

(b)  If the caregiver or guardian agrees to engage or provide services designed to prevent further abuse, neglect, or exploitation, the department may provide protective supervision for the disabled adult or elderly person.

(c)  If the caregiver or guardian refuses to give consent or later withdraws consent to agreed-upon services, or otherwise fails to provide needed care and supervision, the department may provide emergency protective services as provided in subsection (2). If emergency protective services are so provided, the department must then petition the court for an order to provide emergency protective services under subsection (3).

(5)  LIMITATIONS.--This section does not limit in any way the authority of the court or a criminal justice officer, or any other duly appointed official, to intervene in emergency circumstances under existing statutes. This section does not limit the authority of any person to file a petition for guardianship under chapter 744.

History.--s. 101, ch. 95-418; s. 11, ch. 97-98.

415.1052  Interference with investigation or with the provision of protective services.--

(1)  If, upon arrival of the adult protective investigator, any person refuses to allow the department to begin a protective investigation, interferes with the department's ability to conduct such an investigation, or refuses to give access to the disabled adult or elderly person, the appropriate law enforcement agency must be contacted to assist the department in commencing the protective investigation.

(2)  If any person refuses to allow the adult protective investigator to have access to, inspect, or copy any medical, social, or financial record or document in the possession of any person, caregiver, guardian, or facility which is relevant to the allegations under investigation, the department may petition the court for an order requiring the person to give access to the record or document. The petition must allege specific facts sufficient to show that the record or document is relevant to the allegations under investigation and that the person refuses to give access to such record or document. If the court finds by a preponderance of the evidence that the record or document is relevant to the allegations under investigation, the court may order the person to give access to and permit the inspection or copying of the medical, social, or financial record or document.

(3)  When any person refuses to allow the provision of protective services to the disabled adult or elderly person who has the capacity to consent to services, the department shall petition the court for an order enjoining the person from interfering with the provision of protective services. The petition must allege specific facts sufficient to show that the disabled adult or elderly person is in need of protective services and that the person refuses to allow the provision of such services. If the court finds by clear and convincing evidence that the disabled adult or elderly person is in need of protective services and that the person refuses to allow the provision of such services, the court may issue an order enjoining the person from interfering with the provision of protective services to the disabled adult or elderly person.

(4)  When a court order exists authorizing protective services for a disabled adult or an elderly person who lacks capacity to consent and any person interferes with the provision of such court-ordered protective services to the disabled adult or elderly person, the appropriate law enforcement agency shall enforce the order of the court.

History.--s. 102, ch. 95-418.

415.1055  Notification to administrative entities, subjects, and reporters; notification to law enforcement and state attorneys.--

(1)  NOTIFICATION TO ADMINISTRATIVE ENTITIES.--

(a)  The department shall, within 24 hours after receipt of a report of abuse, neglect, or exploitation of a disabled adult or an elderly person within a facility, excluding Saturdays, Sundays, and legal holidays, notify the appropriate human rights advocacy committee and the long-term care ombudsman council, in writing, that the department has reasonable cause to believe that a disabled adult or an elderly person has been abused, neglected, or exploited at the facility.

(b)  Upon receipt of a report that alleges that an employee or agent of the department or the Department of Elderly Affairs, acting in an official capacity, has committed an act of abuse, neglect, or exploitation, the department shall notify the state attorney in whose circuit the abuse, neglect, or exploitation occurred. This notification may be oral or written.

(c)  If at any time during a protective investigation the department has reasonable cause to believe that a disabled adult or an elderly person has been abused, neglected, or exploited by another person, the state attorney having jurisdiction in the county in which the abuse, neglect, or exploitation occurred shall be notified immediately, either orally or in writing.

(d)  If at any time during a protective investigation the department has reasonable cause to believe that a disabled adult or an elderly person has been abused, neglected, or exploited by another person, the appropriate law enforcement agency shall be immediately notified. Such agency may begin a criminal investigation concurrent with or independent of the protective investigation of the department. This notification may be oral or written.

(e)  If at any time during a protective investigation the department has reasonable cause to believe that abuse, neglect, or exploitation of a disabled adult or an elderly person has occurred within a facility that receives Medicaid funds, the department shall notify the Medicaid Fraud Control Unit within the Department of Legal Affairs, Office of the Attorney General, in order that it may begin an investigation concurrent with the protective investigation of the department. This notification may be oral or written.

(f)  If at any time during a protective investigation the department has reasonable cause to believe that an employee of a facility, as defined in ¹s. 415.102(13), is the alleged perpetrator of abuse, neglect, or exploitation of a disabled adult or an elderly person, the department shall notify the Agency for Health Care Administration, Division of Health Quality Assurance, in writing.

(g)  If at any time during a protective investigation the department has reasonable cause to believe that professional licensure violations have occurred, the department shall notify the Division of Medical Quality Assurance within the Department of Health. This notification must be in writing.

(h)  When a report has been classified as proposed confirmed, the department shall notify the state attorney having jurisdiction in the county in which the abuse, neglect, or exploitation occurred. The department may submit a report that has been closed without classification if evidence indicates that further criminal investigation is warranted. This notification must be in writing.

(i)  At the conclusion of a protective investigation at a facility, the department shall notify either the human rights advocacy committee or long-term care ombudsman council of the results of the investigation. This notification must be in writing.

(j)  At the conclusion of a protective investigation, the department shall notify the Agency for Health Care Administration when a licensee or a certified nursing assistant has been named as perpetrator in a report that has been classified as proposed confirmed or confirmed. This notification must be in writing.

(k)  When a report has been classified as proposed confirmed in cases involving a guardian of the person or property, or both, the department shall notify the probate court having jurisdiction over the guardianship of the proposed confirmed report. This notification must be in writing.

(2)  NOTIFICATION TO OTHER PERSONS.--

(a)  In the case of a report that has been classified as unfounded, notice of the classification must be given to the disabled adult or elderly person, the guardian of that person, the caregiver of that person, and the person who had been named as the alleged perpetrator. The notice must be sent by regular mail and must advise the recipient that the report will be expunged in 1 year.

(b)  If a report has been classified as proposed confirmed, notice of the classification must be given to the disabled adult or elderly person, the guardian of that person, the caregiver of that person, and the alleged perpetrator, and legal counsel, if known, for those persons.

1.  The notice must state the nature of the alleged abuse, neglect, or exploitation and the facts that are alleged to support the proposed confirmed classification.

2.  The notice must advise the recipient of the recipient's right to request a copy of the report within 60 days after receipt of the notice.

3.  The notice must clearly advise the alleged perpetrator that the alleged perpetrator has the right to request amendment or expunction of the report within 60 days after receipt of the notice, and that failure to request amendment or expunction within 60 days means that the report will be reclassified as confirmed at the expiration of the 60 days and that the alleged perpetrator agrees not to contest the classification of the report. No further administrative or judicial proceedings in the matter are allowed.

4.  The notice must state that, if the report becomes confirmed, the alleged perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

5.  Notice of a proposed confirmed report must be personally served upon the alleged perpetrator in this state by an adult protective investigator, a sheriff, or a private process server in the district in which the alleged perpetrator resides, works, or can be found. Proof of service of the notice must be by affidavit prepared by the individual serving the notice upon the alleged perpetrator. The affidavit must state the name of the person serving the notice, the name of the alleged perpetrator served, the location at which the alleged perpetrator was served, and the time the notice was served. If the notice of a proposed confirmed report cannot be personally served upon the alleged perpetrator in this state or if the alleged perpetrator does not reside in this state, the notice of the proposed confirmed report must be sent by certified mail, return receipt requested, forwarding and address correction requested, to the last known address of the alleged perpetrator. If an alleged perpetrator cannot be served either by personal service or by certified mail, the record of the proposed confirmed report must be maintained pursuant to s. 415.1065.

6.  Notice to other named persons may be sent by regular mail, with the department giving notice to the caregiver, the guardian, legal counsel for all parties, and the disabled adult or elderly person.

7.  If a proposed confirmed report becomes confirmed because the alleged perpetrator fails to make a timely request to amend or expunge the proposed confirmed report, the department must give notice of the confirmed classification to the perpetrator and the perpetrator's legal counsel.

a.  Notice of the confirmed classification must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

b.  The notice must inform the perpetrator that further departmental proceedings in the matter are not allowed.

c.  The notice of the confirmed classification must be sent by certified mail, return receipt requested.

(c)  If a report is closed without classification, notice must be given to the guardian of the disabled adult or elderly person, the disabled adult or elderly person, the caregiver of that person, any person or facility named in the report, and the person who had been named as the alleged perpetrator. The notice must be sent by regular mail and must advise the recipient that:

1.  The report will be retained for 7 years.

2.  The recipient has a right to request a copy of this report.

3.  Any person or facility named in a report classified as closed without classification has the right to request amendment or expunction of the report within 60 days after the receipt of the notice, and that failure to request amendment or expunction within 60 days means that the report will remain classified as closed without classification and that the person agrees not to contest the classification of the report. No further proceeding will be allowed in this matter.

(d)  In the case of a report that has been determined by an adult protective services investigator to be either a disabled adult in need of services or an elderly person in need of services, as defined in s. 415.102, no classification of the report shall be made and no notification shall be required.

(e)  The department shall adopt rules prescribing the content of the notices to be provided and requiring uniformity of content and appearance of each notice of classification or closure without classification.

(3)  NOTIFICATION BY LAW ENFORCEMENT AND STATE ATTORNEYS.--

(a)  Whenever the law enforcement agency and the department have conducted independent investigations, the law enforcement agency shall, within 5 working days after concluding its investigation, report its findings to the department and to the state attorney.

(b)  Within 15 days after completion of an investigation of a case reported to the state attorney under this section, the state attorney shall report the findings to the department and shall include a determination of whether or not prosecution is justified and appropriate in view of the circumstances of the specific case.

History.--s. 103, ch. 95-418; s. 12, ch. 97-98; s. 30, ch. 98-166; s. 4, ch. 98-182.

¹Note.--Redesignated s. 415.102(15) by s. 1, ch. 98-182.

415.106  Cooperation by the department and criminal justice and other agencies.--

(1)  All criminal justice agencies have a duty and responsibility to cooperate fully with the department so as to enable the department to fulfill its responsibilities under ss. 415.101-415.113. Such duties include, but are not limited to, forced entry, emergency removal, emergency transportation, and the enforcement of court orders obtained under ss. 415.101-415.113.

(2)  To ensure coordination, communication, and cooperation with the investigation of abuse, neglect, or exploitation of disabled adults or elderly persons, the department shall develop and maintain interprogram agreements or operational procedures among appropriate departmental programs and the State Long-Term Care Ombudsman Council, the Statewide Human Rights Advocacy Committee, and other agencies that provide services to disabled adults or elderly persons. These agreements or procedures must cover such subjects as the appropriate roles and responsibilities of the department in identifying and responding to reports of abuse, neglect, or exploitation of disabled adults or elderly persons; the provision of services; and related coordinated activities.

(3)  To the fullest extent possible, the department shall cooperate with and seek cooperation from all appropriate public and private agencies, including health agencies, educational agencies, social service agencies, courts, organizations, or programs providing or concerned with human services related to the prevention, identification, or treatment of abuse, neglect, or exploitation of disabled adults and elderly persons.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 32, ch. 86-220; s. 27, ch. 93-177; s. 104, ch. 95-418.

415.1065  Records management.--All records must be maintained in their entirety for their full retention period, except as otherwise provided in this section:

(1)  RECORDS OF UNFOUNDED REPORTS.--

(a)  The department shall retain the record of a report classified as unfounded for 1 year after the date the report is classified and closed.

1.  After 1 year, the department shall expunge the names, social security numbers, addresses, telephone numbers, and narrative language of the record from the central abuse registry and tracking system. Nonidentifying data remaining in the record may be used only for statistical purposes.

2.  After 1 year, the department shall expunge the hard copy file of the record in its entirety.

(b)  During the 1-year retention period, the department shall index each unfounded report by the name of the disabled adult or elderly person who was the alleged victim, by the report number, and by the facility, if appropriate. These reports may be used to detect persons who knowingly make a false report.

(c)  A person named in an unfounded report may not be identified as a perpetrator.

(2)  RECORDS OF PROPOSED CONFIRMED REPORTS.--

(a)  The department shall retain the record of a report classified as proposed confirmed until all the individuals named as alleged perpetrators have completed the appeals process or have waived the right to appeal.

(b)  When a classification changes as a result of an appeal or a failure to appeal, the retention period of the record is the retention period of the new classification or, if appropriate, of a record that is closed without classification.

(c)  If an alleged perpetrator refuses to accept personal service of the notice of a proposed confirmed report; refuses to accept service by certified mail, return receipt requested; or purposely evades receipt of service of the notice, the record of the proposed confirmed report must be retained for 25 years after the date the report was classified as proposed confirmed. For the purposes of this paragraph, the term "purposely evades receipt of service" means that the alleged perpetrator has left the state for the purpose of avoiding service of the notice, is using a false name so that the notice cannot be served, or is concealing his or her whereabouts in the state so that the notice cannot be served.

(3)  RECORDS OF CONFIRMED REPORTS.--The department shall retain the record of a report classified as confirmed for 50 years after the date the report is classified as confirmed.

(4)  RECORDS OF REPORTS CLOSED WITHOUT CLASSIFICATION.--

(a)  The department shall maintain the record of a report closed without classification for 7 years after the date the report is closed.

(b)  The department shall index a report closed without classification by the name of the disabled adult or elderly person; the facility at which the investigation was conducted, if appropriate; and the report number.

(c)  A person named in a report closed without classification may not be identified as a perpetrator, and information in such report may not be allowed to interfere with any person's employment.

(5)  RECORDS OF REPORTS WITH A DISPOSITION OF NO JURISDICTION.--The department shall retain the record of a report with a disposition of no jurisdiction for 1 year after the date the report is closed. After 1 year, the record must be expunged in its entirety.

(6)  RECORDS OF REPORTS CLOSED AS DISABLED ADULT IN NEED OF SERVICES OR ELDERLY PERSON IN NEED OF SERVICES.--The department may retain the records of reports determined to be a disabled adult in need of services or an elderly person in need of services for up to 1 year for purposes of facilitating the provision of services, program performance reporting, and research and statistical analysis. After 1 year the record must be expunged in its entirety.

(7)  CONFIDENTIALITY.--All information in the central abuse registry and tracking system and in the hard copy file of the records maintained in the district offices is subject to the confidentiality provisions of s. 415.107.

(8)  MANNER OF STORAGE AND DISPOSAL.--All reports, regardless of classification, shall be stored and disposed of in a manner deemed appropriate to the department and in accordance with ss. 119.041 and 257.36(7).

(9)  EXEMPTION.--This section does not require the expunction or destruction of case records or information required by the Federal Government to be retained for future audit.

History.--s. 105, ch. 95-418; s. 65, ch. 97-103; s. 5, ch. 98-182.

415.107  Confidentiality of reports and records.--

(1)  In order to protect the rights of the individual or other persons responsible for the welfare of a disabled adult or an elderly person, all records concerning reports of abuse, neglect, or exploitation of the disabled adult or elderly person, including reports made to the central abuse registry and tracking system, and all records generated as a result of such reports shall be confidential and exempt from s. 119.07(1) and may not be disclosed except as specifically authorized by ss. 415.101-415.113.

(2)  Access to all records, excluding the name of the reporter which shall be released only as provided in subsection (6), shall be granted only to the following persons, officials, and agencies:

(a)  Employees or agents of the department, of the Agency for Health Care Administration, or of the Department of Elderly Affairs who are responsible for carrying out adult protective investigations, ongoing adult protective services, or licensure or approval of nursing homes, assisted living facilities, adult day care centers, adult family-care homes, home care for the elderly, hospices, or other facilities used for the placement of disabled adults or elderly persons.

(b)  A criminal justice agency investigating a report of known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person.

(c)  The state attorney of the judicial circuit in which the disabled adult or elderly person resides or in which the alleged abuse, neglect, or exploitation occurred.

(d)  Any person who is the subject of a report or the subject's guardian, caregiver, or legal counsel.

(e)  A court, by subpoena, upon its finding that access to such records may be necessary for the determination of an issue before the court; however, such access must be limited to inspection in camera, unless the court determines that public disclosure of the information contained in such records is necessary for the resolution of an issue then pending before it.

(f)  A grand jury, by subpoena, upon its determination that access to such records is necessary in the conduct of its official business.

(g)  Any appropriate official of the human rights advocacy committee or long-term care ombudsman council investigating a report of known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person.

(h)  Any appropriate official of the department, of the Agency for Health Care Administration, or of the Department of Elderly Affairs who is responsible for:

1.  Administration or supervision of the programs for the prevention, investigation, or treatment of adult abuse, neglect, or exploitation when carrying out an official function; or

2.  Taking appropriate administrative action concerning an employee alleged to have perpetrated institutional abuse, neglect, or exploitation of a disabled adult or an elderly person.

(i)  Any person engaged in bona fide research or auditing. However, information identifying the subjects of the report must not be made available to the researcher.

(j)  Employees or agents of an agency of another state that has jurisdiction comparable to the jurisdiction described in paragraph (a).

(k)  The Public Employees Relations Commission for the sole purpose of obtaining evidence for appeals filed pursuant to s. 447.207. Records may be released only after deletion of all information that specifically identifies persons other than the employee.

(l)  Any person in the event of the death of a disabled adult or elderly person determined to be a result of abuse, neglect, or exploitation. Information identifying the person reporting abuse, neglect, or exploitation shall not be released. Any information otherwise made confidential or exempt by law shall not be released pursuant to this paragraph.

(3)  The Division of Administrative Hearings may have access to a proposed confirmed or a confirmed report, excluding the name of the reporter, for purposes of any administrative challenge relating to a proposed confirmed or confirmed report.

(4)  The Agency for Health Care Administration may have access to a confirmed report, excluding the name of the reporter, when taking disciplinary action against a licensee or certified nursing assistant for actions that resulted in a confirmed report of abuse, neglect, or exploitation which has been upheld following a chapter 120 hearing or a waiver of such proceedings.

(5)  The department may release to any professional person such information as is necessary for the diagnosis and treatment of, and service delivery to, a disabled adult or an elderly person or the person perpetrating the abuse, neglect, or exploitation.

(6)  The identity of any person reporting adult abuse, neglect, or exploitation may not be released, without that person's written consent, to any person other than employees of the department responsible for adult protective services, the central abuse registry and tracking system, or the appropriate state attorney or law enforcement agency. This subsection grants protection only for the person who reported the adult abuse, neglect, or exploitation and protects only the fact that the person is the reporter. This subsection does not prohibit the subpoena of a person reporting adult abuse, neglect, or exploitation when deemed necessary by the state attorney or the department to protect a disabled adult or an elderly person who is the subject of a report, if the fact that the person made the report is not disclosed.

(7)  For the purposes of this section, the term "access" means a visual inspection or copy of the hard-copy record maintained in the district.

(8)  The department, upon receipt of the applicable fee, shall search its central abuse registry and tracking system records pursuant to the requirements of ss. 110.1127, 393.0655, 394.457, 397.451, 400.506, 400.509, 400.512, ¹402.305(1), 402.3055, 402.313, 409.175, 409.176, and 985.407 for the existence of a confirmed report made on the personnel as defined in the foregoing provisions. The department shall report the existence of any confirmed report and advise the authorized licensing agency, applicant for licensure, or other authorized agency or person of the results of the search and the date of the report. Prior to a search being conducted, the department or its designee shall notify such person that an inquiry will be made. The department shall notify each person for whom a search is conducted of the results of the search upon request.

(9)  Upon receipt of the applicable fee and with the written consent of a person applying to work with disabled adults or elderly persons, the department shall search its central abuse registry and tracking system for the existence of a confirmed report. The department shall advise the employer and the person of any such report found and the results of the investigation.

(10)  The department may charge a user fee to an employer or the agency in charge of a volunteer, whichever is applicable, for a search of the central abuse registry and tracking system of up to one-third of the actual cost of the screening process. All fees received by the department under this section shall be deposited in an administrative trust fund of the department and may be expended only for the caregiver screening program.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 33, ch. 86-220; s. 32, ch. 87-238; s. 7, ch. 88-219; s. 18, ch. 88-337; s. 4, ch. 89-170; s. 30, ch. 89-294; s. 4, ch. 90-50; s. 7, ch. 90-208; s. 47, ch. 90-306; s. 4, ch. 91-57; s. 15, ch. 91-71; ss. 43, 47, ch. 92-58; s. 31, ch. 93-39; s. 15, ch. 93-214; s. 57, ch. 94-218; s. 38, ch. 95-210; s. 106, ch. 95-418; s. 267, ch. 96-406; s. 1, ch. 98-111; s. 9, ch. 98-182; s. 2, ch. 98-255; s. 41, ch. 98-280.

¹Note.--Redesignated as s. 402.305(2) by s. 2, ch. 91-300.

415.1075  Administrative remedies; request for amendment or expunction; appeals; excusable neglect or fraud; requests for exemption.--

(1)  REQUESTS FOR AMENDMENT OR EXPUNCTION.--

(a)  If any person who is the alleged perpetrator in a report that is classified as proposed confirmed disagrees with the classification, the person may request the amendment or expunction of the report.

(b)  The request must be received by the department no later than 60 days after the alleged perpetrator receives notice of the proposed confirmed classification.

(c)  An alleged perpetrator, by failing to make a timely request for amendment or expunction of the report, agrees not to contest the classification of the report as confirmed. When a proposed confirmed report becomes confirmed because the alleged perpetrator fails to make a timely request to amend or expunge the proposed confirmed report, the department must give notice of the confirmed classification to the perpetrator and to the perpetrator's legal counsel.

1.  Notice of the confirmed classification must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, and disabled adults or elderly persons.

2.  The notice must inform the perpetrator that further departmental proceedings in the matter are not allowed.

3.  The notice of the confirmed classification must be sent by certified mail, return receipt requested.

(d)  Upon receipt of the request, the department shall review its investigative report to determine whether a preponderance of the evidence supports a finding that the alleged perpetrator committed abuse, neglect, or exploitation of a disabled adult or an elderly person.

1.  If the department determines that sufficient evidence exists to support a finding that the alleged perpetrator committed abuse, neglect, or exploitation, the report must remain classified as proposed confirmed, and the alleged perpetrator and the alleged perpetrator's legal counsel, if known, must be so notified. Notice to the alleged perpetrator must be by certified mail, return receipt requested.

2.  If the department determines that the report does not contain sufficient evidence to support a finding that the alleged perpetrator committed abuse, neglect, or exploitation, the report must be reclassified as unfounded or must be closed without classification. The change in classification must be reported to the alleged perpetrator and entered into the central abuse registry and tracking system.

(2)  APPEALS.--

(a)  If a request for amendment or expunction is made and the secretary of the department denies the request or does not act within 60 days after receiving the request, or if the alleged perpetrator otherwise disagrees with any decision made by the secretary, the alleged perpetrator of the proposed confirmed report has the right to an administrative hearing under chapter 120 to contest whether the record of the report should be amended or expunged.

(b)  A request for an administrative hearing must be submitted in writing to the department within 30 days after the alleged perpetrator receives notification of the secretary's decision to deny the requested amendment or expunction or, if the secretary fails to act on the request, within 30 days after the expiration of the 60-day time period within which the secretary may act.

(c)  If an alleged perpetrator fails to timely request an administrative hearing, the proposed confirmed report must be reclassified as confirmed. When a report becomes confirmed because the alleged perpetrator fails to make a timely request for an administrative hearing, the department must give notice of the confirmed classification to the perpetrator and the perpetrator's legal counsel.

1.  The notice must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

2.  The notice must inform the perpetrator that further departmental or judicial proceedings in the matter are not allowed.

3.  The notice must be sent by certified mail, return receipt requested.

(d)  If an alleged perpetrator of a proposed confirmed report has pled guilty to or has been found guilty of abuse, neglect, or exploitation of a disabled adult or an elderly person under this chapter, the alleged perpetrator may not relitigate the issues of abuse, neglect, or exploitation of a disabled adult or an elderly person in an administrative hearing requested under chapter 120 regarding the same incident or incidents of abuse, neglect, or exploitation which were the subject of the pleas or adjudication of guilt. The plea or adjudication of guilt requires the department to reclassify the proposed confirmed report as a confirmed report. If a court of competent jurisdiction reverses or vacates a plea or an adjudication of guilt of abuse, neglect, or exploitation of a disabled adult or an elderly person, the perpetrator may apply to expunge or amend the confirmed report within 60 days after receiving the notice that the plea or adjudication of guilt of abuse, neglect, or exploitation of a disabled adult or an elderly person was vacated or reversed.

(e)  At a hearing conducted under chapter 120, the department must prove by a preponderance of the evidence that the alleged perpetrator committed abuse, neglect, or exploitation of a disabled adult or an elderly person. In hearings conducted under this section, the administrative law judge may not require a standard of proof that goes beyond a preponderance of the evidence. The department's investigative report is to be considered competent evidence at the hearing.

1.  If the department's classification of the report as proposed confirmed is upheld, the report becomes a confirmed report.

2.  If the department's classification of the report as proposed confirmed is not upheld, the report must be reclassified as unfounded or must be closed without classification.

3.  The change in classification must be reported to the alleged perpetrator and entered into the central abuse registry and tracking system.

4.  If the department upholds the proposed confirmed report as confirmed, the department must give notice of the decision to the perpetrator and to the perpetrator's legal counsel.

a.  The notice must inform the perpetrator that the decision of the department to classify the report as confirmed constitutes final agency action within the meaning of chapter 120 and that the perpetrator may seek judicial review of this decision under s. 120.68.

b.  The notice must inform the perpetrator that the perpetrator may be disqualified from working with children, the developmentally disabled, disabled adults, and elderly persons.

c.  The notice must inform the perpetrator that further departmental proceedings in the matter are not allowed.

d.  The notice must be sent by certified mail, return receipt requested.

(f)  The confidentiality of the abuse or neglect report must, to the extent possible, be maintained during the administrative hearing process. The administrative hearing must be closed, the administrative files are confidential and may not be disclosed to the public under s. 119.07(1), and any identifying information in the recommended or final order must be deleted before the order is published pursuant to chapter 120.

(3)  REQUESTS FOR AMENDMENT OR EXPUNCTION OF REPORTS CLASSIFIED AS CLOSED WITHOUT CLASSIFICATION.--

(a)  Any person or facility named in a report classified as closed without classification may request the amendment or expunction of the report. The request must be received by the department no later than 60 days following the person's receipt of the notice of classification, as evidenced by the signature date on the return receipt.

(b)  Upon receipt of the request, the department's investigative report shall be reviewed to determine if a preponderance of the evidence supports a determination that abuse, neglect, or exploitation occurred and that the named person had some part in the incident which gave rise to the classification.

1.  If sufficient evidence exists, the report shall remain classified as closed without classification and the person shall be so notified.

2.  If the department's report does not contain sufficient evidence, the report shall be reclassified as unfounded. The change in classification shall be reported to the person and to the central abuse registry and tracking system.

(c)  Failure to make a timely request for amendment or expunction of the report means that the person agrees not to contest the classification of the report.

(4)  APPEALS OF REPORTS CLASSIFIED AS CLOSED WITHOUT CLASSIFICATION.--

(a)  If a request for amendment or expunction is made and the secretary of the department denies the request or does not act within 60 days after receiving the request, the person or facility named in a report classified as closed without classification shall have the right to an administrative hearing pursuant to chapter 120 to contest whether the record of the report should be amended or expunged.

(b)  A request for an administrative hearing must be submitted in writing to the department within 30 days after notification of the secretary's decision to deny the requested amendment or expunction, or, if the secretary fails to act on the request, within 30 days after the expiration of the 60-day time period within which the secretary may act.

(c)  At a hearing conducted pursuant to the provisions of chapter 120, the department shall prove by a preponderance of the evidence that the alleged abuse, neglect, or exploitation occurred and that the named person had some part in the incident which gave rise to the classification. The department's investigative report shall be considered competent evidence at the hearing, and the technical rules of evidence shall not exclude such report.

1.  If the department's classification as closed without classification is upheld, the report shall be closed without classification.

2.  If the department's classification as proposed confirmed is not upheld, the report shall be reclassified as unfounded. The change in classification shall be reported to the person and to the central abuse registry and tracking system.

(d)  The confidentiality of the abuse or neglect report shall, to the extent possible, be maintained during the administrative hearing process. The administrative hearing shall be closed, the administrative files shall be closed and not disclosed to the public under s. 119.07(1), and any identifying information in the recommended or final order shall be deleted prior to publishing pursuant to chapter 120.

(e)  Failure to make a timely request for an administrative hearing following denial of, or the secretary's failure to act on, the request for amendment or expunction means that the person agrees not to contest the classification of the report.

(5)  EXCUSABLE NEGLECT OR FRAUD.--The alleged perpetrator may, within 1 year after the classification of the report as confirmed, request the department to set aside a confirmed report when it can be shown that the failure to ask for amendment or expunction was due to excusable neglect or fraud. The standard for excusable neglect or fraud shall be as provided in the Florida Rules of Civil Procedure.

History.--s. 107, ch. 95-418; s. 268, ch. 96-406; s. 197, ch. 96-410.

415.1085  Photographs, medical examinations, and X rays of abused or neglected aged persons or disabled adults.--

(1)  Any person authorized by law to investigate cases of alleged abuse or neglect of an aged person or disabled adult may take or cause to be taken photographs of the areas of trauma visible on the aged person or disabled adult who is the subject of a report, and photographs of the surrounding environment, with the consent of the subject or guardian or guardians. If the areas of trauma visible on the aged person or disabled adult indicate a need for medical examination, or if the aged person or disabled adult verbally complains or otherwise exhibits distress as a result of injury through suspected adult abuse, neglect, or exploitation, or is alleged to have been sexually abused, the department may, with the consent of the subject or guardian or guardians, cause the aged person or disabled adult to be referred to a licensed physician or any emergency department in a hospital or health care facility for medical examinations and X rays, if deemed necessary by the examining physician. Such examinations may be performed by an advanced registered nurse practitioner licensed pursuant to chapter 464. Medical examinations performed and X rays taken pursuant to this section shall be paid for by third-party reimbursement, if available, or by the subject or his or her guardian, if they are determined to be financially able to pay; or, if neither is available, the department shall pay the costs within available emergency services funds.

(2)  Any photographs or report of examination made, or X rays taken, pursuant to this section, or copies thereof, shall be sent to the department as soon as possible.

History.--s. 34, ch. 86-220; s. 31, ch. 89-294; s. 66, ch. 97-103.

415.109  Abrogation of privileged communications in cases involving abuse, neglect, or exploitation of aged persons or disabled adults.--The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates to both the competency of the witness and to the exclusion of confidential communications, does not apply to any situation involving known or suspected adult abuse, neglect, or exploitation and does not constitute a ground for failure to report as required by s. 415.103, for failure to cooperate with the department in its activities pursuant to ss. 415.101-415.113, or for failure to give evidence in any judicial proceeding relating to abuse, neglect, or exploitation of an aged person or disabled adult.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 1, ch. 85-28; s. 35, ch. 86-220; s. 67, ch. 97-103.

415.1099  Court and witness fees not allowed.--In all proceedings under ss. 415.101-415.113, court fees must not be charged to the department; to any party to a petition; to any legal custodian of records, documents, or persons; or to any adult named in a summons. In a proceeding under ss. 415.101-415.113, witness fees are not allowed to the department; to any party to a petition; to any legal custodian of records, documents, or persons; or to any adult named in a summons.

History.--s. 108, ch. 95-418.

415.1102  Adult protection teams; services; eligible cases.--Subject to an appropriation, the department may develop, maintain, and coordinate the services of one or more multidisciplinary adult protection teams in each of the districts of the department. Such teams may be composed of, but need not be limited to, representatives of appropriate health, mental health, social service, legal service, and law enforcement agencies.

(1)  The department shall utilize and convene the teams to supplement the protective services activities of the adult protective services program of the department. This section does not prevent a person from reporting under s. 415.1034 all suspected or known cases of abuse, neglect, or exploitation of a disabled adult or an elderly person. The role of the teams is to support activities of the adult protective services program and to provide services deemed by the teams to be necessary and appropriate to abused, neglected, and exploited disabled adults or elderly persons upon referral. Services must be provided with the consent of the disabled adult, or elderly person or that person's guardian, or through court order. The specialized diagnostic assessment, evaluation, coordination, and other supportive services that an adult protection team must be capable of providing include, but are not limited to:

(a)  Medical diagnosis and evaluation services, including provision or interpretation of X rays and laboratory tests, and related services, as needed, and documentation of findings relative thereto.

(b)  Telephone consultation services in emergencies and in other situations.

(c)  Medical evaluation related to abuse, neglect, or exploitation as defined by department policy or rule.

(d)  Psychological and psychiatric diagnosis and evaluation services for the disabled adult or elderly person.

(e)  Short-term psychological treatment. It is the intent of the Legislature that short-term psychological treatment be limited to no more than 6 months' duration after treatment is initiated.

(f)  Expert medical, psychological, and related professional testimony in court cases.

(g)  Case staffings to develop, implement, and monitor treatment plans for disabled adults and elderly persons whose cases have been referred to the team. An adult protection team may provide consultation with respect to a disabled adult or elderly person who has not been referred to the team. The consultation must be provided at the request of a representative of the adult protective services program or at the request of any other professional involved with the disabled adult or elderly person or that person's guardian or other caregivers. In every such adult protection team case staffing consultation or staff activity involving a disabled adult or elderly person, an adult protective services program representative shall attend and participate.

(h)  Service coordination and assistance, including the location of services available from other public and private agencies in the community.

(i)  Such training services for program and other department employees as is deemed appropriate to enable them to develop and maintain their professional skills and abilities in handling adult abuse, neglect, or exploitation cases.

(j)  Education and community awareness campaigns on adult abuse, neglect, or exploitation in an effort to enable citizens to prevent, identify, and treat adult abuse, neglect, and exploitation in the community more successfully.

¹(2)  The adult abuse, neglect, or exploitation cases that are appropriate for referral by the adult protective services program to adult protection teams for supportive services include, but are not limited to, cases involving:

(a)  Unexplained or implausibly explained bruises, burns, fractures, or other injuries in a disabled adult or an elderly person.

(b)  Sexual abuse or molestation, or sexual exploitation, of a disabled adult or elderly person.

(c)  Reported medical, physical, or emotional neglect of a disabled adult or an elderly person.

(d)  Reported financial exploitation of a disabled adult or elderly person.

In all instances in which an adult protection team is providing certain services to abused, neglected, or exploited disabled adults or elderly persons, other offices and units of the department shall avoid duplicating the provisions of those services.

History.--s. 32, ch. 89-294; s. 48, ch. 90-306; s. 109, ch. 95-418; s. 6, ch. 98-182.

¹Note.--Section 6, ch. 98-182, purported to amend paragraph (c) of subsection (2), but did not set out in full the amended paragraph to include flush left language at the end of the section. Absent affirmative evidence that the Legislature intended to repeal the omitted material, it is set out in full here, pending clarification by the Legislature.

415.1105  Training programs.--

(1)  The department shall develop rules governing preservice and inservice training for adult protective investigation staff and, within available resources, shall provide appropriate preservice and inservice training to such staff.

(2)  Within available resources, the department shall cooperate with other appropriate agencies in developing and providing preservice and inservice training programs for those persons specified in s. 415.1034(1)(a).

History.--s. 110, ch. 95-418.

415.111  Criminal penalties.--

(1)  A person who knowingly and willfully fails to report a case of known or suspected abuse, neglect, or exploitation of a disabled adult or an elderly person, or who knowingly and willfully prevents another person from doing so, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(2)  A person who knowingly and willfully makes public or discloses any confidential information contained in the central abuse registry and tracking system, or in other computer systems, or in the records of any case of abuse, neglect, or exploitation of a disabled adult or elderly person, except as provided in ss. 415.101-415.113, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(3)  A person who has custody of records and documents the confidentiality of which is abrogated under s. 415.1045(5) and who refuses to grant access to such records commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

(4)  If the department or its authorized agent has determined after its investigation that a report is false, the department shall, with the consent of the alleged perpetrator, refer the reports to the local law enforcement agency having jurisdiction for an investigation to determine whether sufficient evidence exists to refer the case for prosecution for filing a false report as defined in s. 415.102. During the pendency of the investigation by the local law enforcement agency, the department must notify the local law enforcement agency of, and the local law enforcement agency must respond to, all subsequent reports concerning the same disabled adult or elderly person in accordance with s. 415.104 or s. 415.1045. If the law enforcement agency believes that there are indicators of abuse, neglect, or exploitation, it must immediately notify the department, which must assure the safety of the disabled adult or elderly person. If the law enforcement agency finds sufficient evidence for prosecution for filing a false report, it must refer the case to the appropriate state attorney for prosecution.

(5)  A person who knowingly and willfully makes a false report of abuse, neglect, or exploitation of a disabled adult or an elderly person, or a person who advises another to make a false report, commits a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

(a)  The department shall establish procedures for determining whether a false report of abuse, neglect, or exploitation of a disabled adult or an elderly person has been made and for submitting all identifying information relating to such a false report to the local law enforcement agency as provided in this subsection and shall report annually to the Legislature the number of reports referred.

(b)  Anyone making a report who is acting in good faith is immune from any liability under this subsection.

(6)  Each state attorney shall establish and publish procedures to facilitate the prosecution of persons under this section and shall report to the Legislature annually the number of complaints that have resulted in the filing of an information or indictment under this section.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 36, ch. 86-220; s. 19, ch. 88-337; s. 1, ch. 89-322; s. 49, ch. 90-306; s. 5, ch. 91-57; s. 16, ch. 91-71; s. 250, ch. 91-224; s. 1, ch. 91-258; s. 4, ch. 95-140; s. 20, ch. 95-158; s. 111, ch. 95-418; s. 7, ch. 96-293; s. 2, ch. 98-111; s. 10, ch. 98-182.

415.1111  Civil penalties.--

(1)  A person who is named as a perpetrator in a confirmed report of abuse, neglect, or exploitation of a disabled adult or an elderly person is subject to civil penalties as follows:

(a)  For the first offense, a penalty of $250.

(b)  For the second offense, a penalty of $500.

(c)  For the third and subsequent offenses, a penalty of $1,000 per occurrence.

Second and subsequent offenses may be for the same type of abuse, neglect, or exploitation or for a different type, and may be perpetrated upon the same or a different disabled adult or elderly person.

(2)  All fines received by the department under this section must be deposited in the Operations and Maintenance Trust Fund within the department. The Legislature shall annually appropriate from the fund an amount that is no less than the amount deposited under this section, to be expended only for the adult protective services program.

(3)  A disabled adult or an elderly person who has been named as a victim in a confirmed report of abuse, neglect, or exploitation as specified in this part has a cause of action against any perpetrator named in the confirmed report and may recover actual and punitive damages for such abuse, neglect, or exploitation. The action may be brought by the disabled adult or elderly person, or that person's guardian, by a person or organization acting on behalf of the disabled adult or elderly person with the consent of that person or that person's guardian, or by the personal representative of the estate of a deceased disabled adult or elderly person without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. The action may be brought in any court of competent jurisdiction to enforce such action and to recover actual and punitive damages for any deprivation of or infringement on the rights of a disabled adult or an elderly person. A party who prevails in any such action may be entitled to recover reasonable attorney's fees, costs of the action, and damages. The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a disabled adult or an elderly person.

History.--s. 112, ch. 95-418; s. 23, ch. 96-418.

415.1113  Administrative fines for false report of abuse, neglect, or exploitation of a disabled adult or an elderly person.--

(1)  In addition to any other penalty authorized by this section, chapter 120, or other law, the department may impose a fine, not to exceed $10,000 for each violation, upon a person who knowingly and willfully makes a false report of abuse, neglect, or exploitation of a disabled adult or an elderly person, or a person who counsels another to make a false report.

(2)  If the department alleges that a person has knowingly and willfully filed a false report with the central abuse registry and tracking system, the department must file a notice of intent that alleges the name, age, and address of the individual; the facts constituting the allegation that the individual made a false report; and the administrative fine that the department proposes to impose on the person. Each time that a false report is made constitutes a separate violation.

(3)  The notice of intent to impose the administrative fine must be served by certified mail, return receipt requested, upon the person alleged to have filed the false report and upon the person's legal counsel, if any.

(4)  Any person alleged to have filed the false report is entitled to an administrative hearing under chapter 120 before the imposition of the fine becomes final. The person must request an administrative hearing within 60 days after receipt of the notice of intent by filing a request with the department. Failure to request an administrative hearing within 60 days after receipt of the notice of intent constitutes a waiver of the right to a hearing, making the administrative fine final.

(5)  At the hearing, the department must prove by clear and convincing evidence that the person knowingly and willfully filed a false report with the central abuse registry and tracking system. The person has the right to be represented by legal counsel at the hearing.

(6)  In determining the amount of fine to be imposed, if any, the following factors must be considered:

(a)  The gravity of the violation, including the probability that serious physical or emotional harm to any person will result or has resulted, the severity of the actual or potential harm, and the nature of the false allegation.

(b)  Actions taken by the false reporter to retract the false report as an element of mitigation, or, in contrast, to encourage an investigation on the basis of false information.

(c)  Any previous false reports filed by the same individual.

(7)  A decision by the department, following the administrative hearing, to impose an administrative fine for filing a false report constitutes final agency action within the meaning of chapter 120. Notice of the imposition of the administrative fine must be served upon the person and upon the person's legal counsel, by certified mail, return receipt requested, and must state that the person may seek judicial review of the administrative fine under s. 120.68.

(8)  All amounts collected under this section must be deposited into the Operations and Maintenance Trust Fund within the Adult Services Program of the department.

(9)  A person who is determined to have filed a false report of abuse or neglect is not entitled to confidentiality. Subsequent to the conclusion of all administrative or other judicial proceedings concerning the filing of a false report, the name of the false reporter and the nature of the false report must be made public, pursuant to s. 119.01(1). Such information is admissible in any civil or criminal proceeding.

(10)  Any person who makes a report and acts in good faith is immune from any liability under this section and continues to be entitled to have the confidentiality of his or her identity maintained.

History.--s. 113, ch. 95-418; s. 68, ch. 97-103; s. 3, ch. 98-111; s. 11, ch. 98-182; s. 201, ch. 99-8.

415.1115  Civil actions involving elderly parties; speedy trial.--In a civil action in which a person over the age of 65 is a party, such party may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the initial complaint or at any time thereafter.

History.--s. 1, ch. 91-251; s. 115, ch. 95-418.

Note.--Former s. 415.114.

415.112  Rules for implementation of ss. 415.101-415.113.--The department shall promulgate rules for the implementation of ss. 415.101-415.113.

History.--ss. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, ch. 73-176; s. 1, ch. 77-174; ss. 3, 5, ch. 79-287; s. 15, ch. 79-298; s. 1, ch. 80-293; s. 1, ch. 83-82; s. 37, ch. 86-220.

415.113  Statutory construction; treatment by spiritual means.--Nothing in ss. 415.101-415.112 shall be construed to mean a person is abused, neglected, or in need of emergency or protective services for the sole reason that the person relies upon and is, therefore, being furnished treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination; nor shall anything in such sections be construed to authorize, permit, or require any medical care or treatment in contravention of the stated or implied objection of such person. Such construction does not:

(1)  Eliminate the requirement that such a case be reported to the department;

(2)  Prevent the department from investigating such a case; or

(3)  Preclude a court from ordering, when the health of the individual requires it, the provision of medical services by a licensed physician or treatment by a duly accredited practitioner who relies solely on spiritual means for healing in accordance with the tenets and practices of a well-recognized church or religious organization.

History.--s. 1, ch. 85-143; s. 114, ch. 95-418.