The Florida Senate

402.165  Florida Statewide Advocacy Council; confidential records and meetings.--

(1)  The Statewide Human Rights Advocacy Committee within the Department of Children and Family Services is redesignated as the Florida Statewide Advocacy Council. Members of the council shall represent the interests of clients who are served by state agencies that provide client services. The Department of Children and Family Services shall provide administrative support and service to the statewide council to the extent requested by the executive director within available resources. The statewide council is not subject to control, supervision, or direction by the Department of Children and Family Services in the performance of its duties. The council shall consist of 15 residents of this state, one from each service area designated by the statewide council, who broadly represent the interests of the public and the clients of the state agencies that provide client services. The members shall be representative of four groups of state residents as follows: one provider who delivers client services as defined in s. 402.164(2); two nonsalaried representatives of nonprofit agencies or civic groups; four representatives of consumer groups who are currently receiving, or have received, client services within the past 4 years, at least one of whom must be a consumer of one or more client services; and two residents of the state who do not represent any of the foregoing groups, one of whom represents the health-related professions and one of whom represents the legal profession. In appointing the representative of the health-related professions, the appointing authority shall give priority of consideration to a physician licensed under chapter 458 or chapter 459; and, in appointing the representative of the legal profession, the appointing authority shall give priority of consideration to a member in good standing of The Florida Bar. Of the remaining members, no more than one shall be an elected official; no more than one shall be a health professional; no more than one shall be a legal professional; no more than one shall be a provider; no more than two shall be nonsalaried representatives of nonprofit agencies or civic groups; and no more than one shall be an individual whose primary area of interest, experience, or expertise is a major client group of a client services group that is not represented on the council at the time of appointment. Except for the member who is an elected public official, each member of the statewide council must have served as a member of a Florida advocacy council, with priority consideration given to an applicant who has served a full term on a local council. Persons related to each other by consanguinity or affinity within the third degree may not serve on the statewide council at the same time.

(2)  Members of the statewide council shall be appointed to serve terms of 4 years. A member may not serve more than two full consecutive terms.

(3)  If a member of the statewide council fails to attend two-thirds of the regular council meetings during the course of a year, the position held by the member may be deemed vacant by the council. The Governor shall fill the vacancy pursuant to subsection (4). If a member of the statewide council violates this section or procedures adopted under this section, the council may recommend to the Governor that the member be removed.

(4)  The Governor shall fill each vacancy on the statewide council from a list of nominees submitted by the statewide council. A list of candidates may be submitted to the statewide council by the local council in the service area from which the vacancy occurs. Priority of consideration shall be given to the appointment of an individual who is receiving one or more client services and whose primary interest, experience, or expertise lies with a major client group that is not represented on the council at the time of the appointment. If an appointment is not made within 60 days after a vacancy occurs on the statewide council, the vacancy may be filled by a majority vote of the statewide council without further action by the Governor. A person who is employed by any state agency in client services may not be appointed to the statewide council.

(5)(a)  Members of the statewide council shall receive no compensation, but are entitled to be reimbursed for per diem and travel expenses in accordance with s. 112.061.

(b)  The council shall select an executive director who shall serve at the pleasure of the council and shall perform the duties delegated to him or her by the council. The compensation of the executive director and staff shall be established in accordance with the rules of the Selected Exempt Service.

(c)  The council may apply for, receive, and accept grants, gifts, donations, bequests, and other payments including money or property, real or personal, tangible or intangible, and service from any governmental or other public or private entity or person and make arrangements as to the use of same.

(d)  The statewide council shall annually prepare a budget request that is not to be changed by department staff after it is approved by the council, but shall be submitted to the Governor for transmittal to the Legislature. The budget shall include a request for funds to carry out the activities of the statewide council and the local councils.

(6)  The members of the statewide council shall elect a chair and a vice chair to terms of 1 year. A person may not serve as chair or vice chair for more than two full consecutive terms.

(7)  The responsibilities of the statewide council include, but are not limited to:

(a)  Serving as an independent third-party mechanism for protecting the constitutional and human rights of clients within programs or facilities operated, funded, or contracted by any state agency that provides client services.

(b)  Monitoring by site visit and inspection of records the delivery and use of services, programs, or facilities operated, funded, or contracted by any state agency that provides client services, for the purpose of preventing abuse or deprivation of the constitutional and human rights of clients. The statewide council may conduct an unannounced site visit or monitoring visit that involves the inspection of records if the visit is conditioned upon a complaint. A complaint may be generated by the council itself if information from any state agency that provides client services or from other sources indicates a situation at the program or facility that indicates possible abuse or neglect or deprivation of the constitutional and human rights of clients. The statewide council shall establish and follow uniform criteria for the review of information and generation of complaints. Routine program monitoring and reviews that do not require an examination of records may be made unannounced.

(c)  Receiving, investigating, and resolving reports of abuse or deprivation of constitutional and human rights referred to the statewide council by a local council. If a matter constitutes a threat to the life, safety, or health of clients or is multidistrict in scope, the statewide council may exercise such powers without the necessity of a referral from a local council.

(d)  Reviewing existing programs or services and new or revised programs of the state agencies that provide client services and making recommendations as to how the rights of clients are affected.

(e)  Submitting an annual report to the Legislature, no later than December 30 of each calendar year, concerning activities, recommendations, and complaints reviewed or developed by the council during the year.

(f)  Conducting meetings at least six times a year at the call of the chair and at other times at the call of the Governor or by written request of six members of the council.

(g)  Developing and adopting uniform procedures to be used to carry out the purpose and responsibilities of the statewide council and the local councils, which procedures shall include, but need not be limited to, the following:

1.  The responsibilities of the statewide council and the local councils;

2.  The organization and operation of the statewide council and the local councils, including procedures for replacing a member, formats for maintaining records of council activities, and criteria for determining what constitutes a conflict of interest for purposes of assigning and conducting investigations and monitoring;

3.  Uniform procedures for the statewide council and the local councils relating to receiving and investigating reports of abuse or deprivation of constitutional or human rights;

4.  The responsibilities and relationship of the local councils to the statewide council;

5.  The relationship of the statewide council to the state agencies that receive and investigate reports of abuse and neglect of clients of state agencies, including the way in which reports of findings and recommendations related to reported abuse or neglect are given to the appropriate state agency that provides client services;

6.  Provision for cooperation with the State Long-Term Care Ombudsman Council;

7.  Procedures for appeal. An appeal to the statewide council is made by a local council when a valid complaint is not resolved at the local level. The statewide council may appeal an unresolved complaint to the secretary or director of the appropriate state agency that provides client services. If, after exhausting all remedies, the statewide council is not satisfied that the complaint can be resolved within the state agency, the appeal may be referred to the Governor;

8.  Uniform procedures for gaining access to and maintaining confidential information; and

9.  Definitions of misfeasance and malfeasance for members of the statewide council and local councils.

(h)  Monitoring the performance and activities of all local councils and providing technical assistance to members and staff of local councils.

(i)  Providing for the development and presentation of a standardized training program for members of local councils.

(8)(a)  In the performance of its duties, the statewide council shall have:

1.  Authority to receive, investigate, seek to conciliate, hold hearings on, and act on complaints that allege any abuse or deprivation of constitutional or human rights of persons who receive client services from any state agency.

2.  Access to all client records, files, and reports from any program, service, or facility that is operated, funded, or contracted by any state agency that provides client services and any records that are material to its investigation and are in the custody of any other agency or department of government. The council's investigation or monitoring shall not impede or obstruct matters under investigation by law enforcement agencies or judicial authorities. Access shall not be granted if a specific procedure or prohibition for reviewing records is required by federal law and regulation that supersedes state law. Access shall not be granted to the records of a private licensed practitioner who is providing services outside the state agency, or outside a state facility, and whose client is competent and refuses disclosure.

3.  Standing to petition the circuit court for access to client records that are confidential as specified by law. The petition shall state the specific reasons for which the council is seeking access and the intended use of such information. The court may authorize council access to such records upon a finding that such access is directly related to an investigation regarding the possible deprivation of constitutional or human rights or the abuse of a client. Original client files, records, and reports shall not be removed from a state agency. Under no circumstance shall the council have access to confidential adoption records once the adoption is finalized by a court in accordance with ss. 39.0132, 63.022, and 63.162. Upon completion of a general investigation of practices and procedures of a state agency, the statewide council shall report its findings to that agency.

(b)  All information obtained or produced by the statewide council that is made confidential by law, that relates to the identity of any client or group of clients subject to the protections of this section, or that relates to the identity of an individual who provides information to the council about abuse or about alleged violations of constitutional or human rights, is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(c)  Portions of meetings of the statewide council that relate to the identity of any client or group of clients subject to the protections of this section, that relate to the identity of an individual who provides information to the council about abuse or about alleged violations of constitutional or human rights, or wherein testimony is provided relating to records otherwise made confidential by law, are exempt from s. 286.011 and s. 24(b), Art. I of the State Constitution.

(d)  All records prepared by members of the statewide council that reflect a mental impression, investigative strategy, or theory are exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the investigation is completed or until the investigation ceases to be active. For purposes of this section, an investigation is considered "active" while such investigation is being conducted by the statewide council with a reasonable, good faith belief that it may lead to a finding of abuse or of a violation of human rights. An investigation does not cease to be active so long as the statewide council is proceeding with reasonable dispatch and there is a good faith belief that action may be initiated by the council or other administrative or law enforcement agency.

(e)  Any person who knowingly and willfully discloses any such confidential information commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

History.--ss. 1, 5, ch. 89-215; s. 5, ch. 91-429; s. 14, ch. 92-58; s. 26, ch. 93-177; s. 9, ch. 93-262; s. 806, ch. 95-148; s. 5, ch. 95-407; s. 236, ch. 96-406; s. 144, ch. 98-403; s. 134, ch. 99-8; s. 2, ch. 2000-263.