House Bill 0637
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Florida House of Representatives - 1999 HB 637
By Representatives Gottlieb, Barreiro, Villalobos, Fasano,
Argenziano, Greenstein, Sobel, Wasserman Schultz, Rayson,
Heyman, Wilson, Betancourt, Chestnut, Logan and Cosgrove
1 A bill to be entitled
2 An act relating to developmental disabilities;
3 amending s. 393.063, F.S.; redefining
4 "intermediate care facility for the
5 developmentally disabled" and "residential
6 habilitation center"; defining "least
7 restrictive" with respect to placements of
8 persons with developmental disabilities;
9 amending s. 393.0651, F.S.; revising criteria
10 for the placement of clients; amending s.
11 393.067, F.S.; requiring periodic unannounced
12 inspections and reviews of residential
13 facilities and comprehensive transitional
14 education programs; providing for the licensure
15 of facilities as intermediate care facilities
16 for the developmentally disabled; amending s.
17 393.068, F.S.; deleting legislative recognition
18 of deinstitutionalization; amending s. 393.13,
19 F.S.; revising legislative intent with respect
20 to treatment and services for persons with
21 developmental disabilities; providing for an
22 annual plan for implementation of treatment
23 programs; providing for priority of legislative
24 funding; providing for civil actions to enforce
25 the rights of such persons; providing for
26 recovery of damages, costs, and attorney's
27 fees; amending ss. 409.906 and 409.908, F.S.;
28 revising requirements for Medicaid
29 reimbursement for intermediate care facility
30 for the developmentally disabled services;
31 amending ss. 92.53, 914.16, 914.17, and 918.16,
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1 F.S.; correcting cross references; repealing
2 ss. 393.165 and 393.166, F.S., which provide
3 legislative findings and provide for licensure
4 of facilities under the Intermediate Care
5 Facility for the Developmentally Disabled
6 Program; providing an effective date.
7
8 Be It Enacted by the Legislature of the State of Florida:
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10 Section 1. Present subsections (30) and (42) of
11 section 393.063, Florida Statutes, 1998 Supplement, are
12 amended, present subsections (32) through (54) are renumbered
13 as subsections (33) through (55), respectively, and a new
14 subsection (32) is added to said section, to read:
15 393.063 Definitions.--For the purposes of this
16 chapter:
17 (30) "Intermediate care facility for the
18 developmentally disabled" or "ICF/DD" means a
19 state-owned-and-operated residential facility licensed in
20 accordance with state law, and certified by the Federal
21 Government pursuant to the Social Security Act, as a provider
22 of Medicaid services to persons who are mentally retarded or
23 who have related conditions. The capacity of such a facility
24 shall not be more than 120 clients.
25 (32) "Least restrictive" means a placement,
26 residential or otherwise, that maximizes opportunities for the
27 most normalized lifestyle possible for an individual with
28 developmental disabilities based on that individual's unique
29 needs.
30 (43)(42) "Residential habilitation center" means a
31 community residential facility operated primarily for the
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1 diagnosis, treatment, habilitation, or rehabilitation of its
2 residents, which facility provides, in a structured
3 residential setting, individualized continuing evaluation,
4 planning, 24-hour supervision, and coordination and
5 integration of health or rehabilitative services to help each
6 resident reach his or her maximum functioning capabilities.
7 The capacity of such a facility shall not be less than nine
8 residents. After October 1, 1989, no new residential
9 habilitation centers shall be licensed and the licensed
10 capacity shall not be increased for any existing residential
11 habilitation center.
12 Section 2. Subsection (5) of section 393.0651, Florida
13 Statutes, is amended to read:
14 393.0651 Family or individual support plan.--The
15 department shall provide for an appropriate family support
16 plan for children ages birth to 18 years of age and an
17 individual support plan for each client. The parent or
18 guardian of the client or, if competent, the client, or, when
19 appropriate, the client advocate, shall be consulted in the
20 development of the plan and shall receive a copy of the plan.
21 Each plan shall include the most appropriate, least
22 restrictive, and most cost-beneficial environment for
23 accomplishment of the objectives for client progress and a
24 specification of all services authorized. The plan shall
25 include provisions for the most appropriate level of care for
26 the client. Within the specification of needs and services for
27 each client, when residential care is necessary, the
28 department shall move toward placement of clients in
29 residential facilities based within the client's community.
30 The ultimate goal of each plan, whenever possible, shall be to
31 enable the client to live a dignified life in the least
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1 restrictive setting possible, based on the individual's unique
2 needs, be that in the home or in the community. For children
3 under 6 years of age, the family support plan shall be
4 developed within the 45-day application period as specified in
5 s. 393.065(1); for all applicants 6 years of age or older, the
6 family or individual support plan shall be developed within
7 the 60-day period as specified in that subsection.
8 (5) The department shall place a client in the most
9 appropriate and least restrictive, and cost-beneficial,
10 residential facility according to his or her individual
11 habilitation plan. The parent or guardian of the client or, if
12 competent, the client, or, when appropriate, the client
13 advocate, and the administrator of the residential facility to
14 which placement is proposed shall be consulted in determining
15 the appropriate placement for the client. Considerations for
16 placement shall be made in the following order:
17 (a) Client's own home or the home of a family member
18 or direct service provider.
19 (b) Foster care facility.
20 (c) Group home facility.
21 (d) Intermediate care facility for the developmentally
22 disabled.
23 (e) Other facilities licensed by the department which
24 offer special programs for people with developmental
25 disabilities.
26 (f) Developmental services institution.
27 Section 3. Subsections (2), (3), (9), (11), and (19)
28 of section 393.067, Florida Statutes, 1998 Supplement, are
29 amended to read:
30 393.067 Licensure of residential facilities and
31 comprehensive transitional education programs.--
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1 (2) The department shall conduct inspections and
2 reviews of residential facilities and comprehensive
3 transitional education programs at least annually. In
4 addition, the department shall periodically make unannounced
5 inspections and reviews. These unannounced inspections and
6 reviews shall occur on weekends, evenings, nights, holidays,
7 and during regular business hours.
8 (3) An application for a license for a residential
9 facility or a comprehensive transitional education program
10 shall be made to the department of Health and Rehabilitative
11 Services on a form furnished by it and shall be accompanied by
12 the appropriate license fee.
13 (9) The department and the Agency for Health Care
14 Administration, after consultation with the Department of
15 Community Affairs, shall adopt rules for residential
16 facilities under the respective regulatory jurisdiction of
17 each establishing minimum standards for the preparation and
18 annual update of a comprehensive emergency management plan.
19 At a minimum, the rules must provide for plan components that
20 address emergency evacuation transportation; adequate
21 sheltering arrangements; postdisaster activities, including
22 emergency power, food, and water; postdisaster transportation;
23 supplies; staffing; emergency equipment; individual
24 identification of residents and transfer of records; and
25 responding to family inquiries. The comprehensive emergency
26 management plan for all intermediate care facilities for the
27 developmentally disabled, facilities serving seven or more
28 people, and homes serving individuals who have complex medical
29 conditions is subject to review and approval by the local
30 emergency management agency. During its review, the local
31 emergency management agency shall ensure that the following
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1 agencies, at a minimum, are given the opportunity to review
2 the plan: the Agency for Health Care Administration, the
3 Department of Children and Family Health and Rehabilitative
4 Services, and the Department of Community Affairs. Also,
5 appropriate volunteer organizations must be given the
6 opportunity to review the plan. The local emergency
7 management agency shall complete its review within 60 days and
8 either approve the plan or advise the facility of necessary
9 revisions.
10 (11) The department's department may conduct
11 unannounced inspections and reviews, whether announced or
12 unannounced, shall be designed to determine compliance by
13 residential facilities and comprehensive transitional
14 education programs with the applicable provisions of this
15 chapter and the rules adopted pursuant hereto, including the
16 rules adopted for training staff of a facility or a program to
17 detect and prevent sexual abuse of residents and clients. The
18 facility or program shall make copies of inspection reports
19 available to the public upon request.
20 (19) The department shall develop a plan by March 15,
21 1991, to phase out all of the unlicensed beds in developmental
22 services institutions by December 30, 1999, and, contingent
23 upon appropriations, ensure that all beds operating after that
24 date are licensed as intermediate care facilities for the
25 developmentally disabled. This plan must address among other
26 issues the transfer of funds from developmental services
27 institutions to the community.
28 Section 4. Subsection (1) of section 393.068, Florida
29 Statutes, is amended to read:
30 393.068 Family care program.--
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1 (1) The family care program is established for the
2 purpose of providing services and support to families and
3 individuals with developmental disabilities in order to
4 maintain the individual in the home environment and avoid
5 costly out-of-home residential placement. The Legislature
6 recognizes the importance of family support in the long-range
7 success of deinstitutionalization. Services and support
8 available to families and individuals with developmental
9 disabilities shall emphasize community living and enable
10 individuals with developmental disabilities to enjoy typical
11 lifestyles. Support and flexibility in coordinating support
12 and services are core elements in caring for the individual
13 who is developmentally disabled. One way to accomplish this is
14 to recognize that families are the greatest resource available
15 to individuals who have developmental disabilities and that
16 families must be supported in their role as primary care
17 givers. Services and support authorized under this program
18 shall include the services listed under s. 393.066(4) and, in
19 addition, shall include, but not be limited to:
20 (a) Attendant care.
21 (b) Barrier-free modifications to the home.
22 (c) Home visitation by agency workers.
23 (d) In-home subsidies.
24 (e) Low-interest loans.
25 (f) Parent training.
26 (g) Respite care.
27 (h) Modifications for vehicles used to transport the
28 individual with a developmental disability.
29 (i) Facilitated communication.
30 (j) Family counseling.
31 (k) Equipment and supplies.
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1 (l) Self-advocacy training.
2 (m) Roommate services.
3 (n) Integrated community activities.
4 (o) Emergency services.
5 (p) Support coordination.
6 (q) Other support services as identified by the family
7 or individual.
8 Section 5. Paragraphs (b) and (d) of subsection (2) of
9 section 393.13, Florida Statutes, are amended, and subsection
10 (8) is added to said section, to read:
11 393.13 Personal treatment of persons who are
12 developmentally disabled.--
13 (2) LEGISLATIVE INTENT.--
14 (b) The Legislature further finds and declares that
15 the design and delivery of treatment and services to persons
16 who are developmentally disabled should be directed by the
17 principles of normalization and therefore should:
18 1. Abate the use of large institutions.
19 1.2. Continue the development of community-based
20 services as an alternative to institutional placement when
21 appropriate and based on the individual's unique needs which
22 provide reasonable alternatives to institutionalization in
23 settings that are least restrictive to the client.
24 2.3. Provide training and education to individuals who
25 are developmentally disabled which will maximize their
26 potential to lead independent and productive lives and which
27 will, when appropriate, afford opportunities for outward
28 mobility from institutions.
29 (d) It is the intent of the Legislature that all
30 persons with developmental disabilities shall have all the
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1 rights enjoyed by all other citizens of the state and the
2 United States and, therefore, the Legislature intends:
3 1. To articulate the existing legal and human rights
4 of persons who are developmentally disabled so that they may
5 be exercised and protected. Persons with developmental
6 disabilities shall have all the rights enjoyed by citizens of
7 the state and the United States.
8 2. To provide a mechanism for the identification,
9 evaluation, and treatment of persons with developmental
10 disabilities.
11 3. To divert those individuals from institutional
12 commitment who, by virtue of individualized comprehensive
13 assessment, can live be placed in a community residence or
14 intermediate care facility for the developmentally disabled in
15 their community less costly, more effective community
16 environments and programs.
17 4. To develop an annual a plan which will indicate the
18 most effective and efficient manner in which to implement
19 treatment programs and residential placements which are
20 meaningful to individuals with developmental disabilities,
21 while safeguarding and respecting the legal and human rights
22 of such individuals. Each annual plan shall review and revise
23 the previous year's annual plan.
24 5. Once the annual plan developed under the provisions
25 of subparagraph 4. is presented to the Legislature, to fund
26 the recommended treatment programs and residential placements
27 to the fullest extent possible within improvements in the
28 program in accordance with the availability of state
29 resources, and to make such funding a legislative priority
30 yearly priorities determined by the Legislature.
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1 6. To ensure that persons with developmental
2 disabilities receive treatment and habilitation which fosters
3 the developmental potential of the individual.
4 7. To provide programs for the proper habilitation and
5 treatment of persons with developmental disabilities which
6 shall include, but not be limited to, comprehensive
7 medical/dental care, education, recreation, specialized
8 therapies, training, social services, transportation,
9 guardianship, family care programs, day services, and
10 habilitative and rehabilitative services suited to the needs
11 of the individual regardless of age, degree of disability, or
12 handicapping condition, or ability. No person with
13 developmental disabilities shall be deprived of these
14 enumerated services by reason of inability to pay.
15 8. To facilitate fully effectuate the normalization
16 principle through the establishment of community services for
17 persons with developmental disabilities as an a viable and
18 practical alternative to institutional care, when appropriate,
19 at each stage of individual life development.
20 9. To ensure that if care in a residential facility
21 becomes necessary, residential placements it shall be in the
22 least restrictive setting possible based on the individual's
23 unique needs.
24 (8) CIVIL ENFORCEMENT.--
25 (a) Any person with a developmental disability whose
26 rights as specified in this section are deprived or infringed
27 upon shall have an action against any licensee or state agency
28 responsible for the violation. The action may be brought by
29 the individual or his or her guardian, by a person or
30 organization acting on behalf of the individual with the
31 consent of the individual or his or her guardian, or by the
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1 personal representative of the estate of a deceased individual
2 when the cause of death resulted from the deprivation of or
3 infringement upon the decedent's rights. The action may be
4 brought in any court of competent jurisdiction to enforce such
5 rights and to recover actual and punitive damages for any
6 deprivation of or infringement upon the rights of an
7 individual. Any plaintiff who prevails in any such action may
8 be entitled to recover reasonable attorney's fees, costs of
9 the action, and damages, unless the court finds that the
10 plaintiff has acted in bad faith, with malicious purpose, and
11 that there was a complete absence of a justiciable issue of
12 either law or fact. Prevailing defendants may be entitled to
13 recover reasonable attorney's fees pursuant to s. 57.105. The
14 remedies provided in this subsection are in addition to and
15 cumulative with other legal and administrative remedies
16 available to an individual and to the agency.
17 (b) Attorney's fees shall be based on the following
18 criteria:
19 1. The time and labor required.
20 2. The novelty and difficulty of the questions.
21 3. The skill requisite to perform the legal services
22 properly.
23 4. The preclusion of other employment by the attorney
24 due to the acceptance of the case.
25 5. The customary fee.
26 6. Whether the fee is fixed or contingent.
27 7. The amount involved or the results obtained.
28 8. The experience, reputation, and ability of the
29 attorney.
30 9. The type of fee arrangement between the attorney
31 and the client.
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1 10. Whether the relevant market requires a contingency
2 fee multiplier to obtain competent counsel.
3 11. Whether the attorney was able to mitigate the risk
4 of nonpayment in any way.
5 (c) For the purposes of this subsection, punitive
6 damages may be awarded for conduct which is willful, wanton,
7 gross or flagrant, reckless, or consciously indifferent to the
8 rights of the individual.
9 Section 6. Subsection (15) of section 409.906, Florida
10 Statutes, 1998 Supplement, is amended to read:
11 409.906 Optional Medicaid services.--Subject to
12 specific appropriations, the agency may make payments for
13 services which are optional to the state under Title XIX of
14 the Social Security Act and are furnished by Medicaid
15 providers to recipients who are determined to be eligible on
16 the dates on which the services were provided. Any optional
17 service that is provided shall be provided only when medically
18 necessary and in accordance with state and federal law.
19 Nothing in this section shall be construed to prevent or limit
20 the agency from adjusting fees, reimbursement rates, lengths
21 of stay, number of visits, or number of services, or making
22 any other adjustments necessary to comply with the
23 availability of moneys and any limitations or directions
24 provided for in the General Appropriations Act or chapter 216.
25 Optional services may include:
26 (15) INTERMEDIATE CARE FACILITY FOR THE
27 DEVELOPMENTALLY DISABLED SERVICES.--For the purposes of
28 Medicaid reimbursement, "intermediate care facility for the
29 developmentally disabled services" means services provided by
30 a facility which is licensed owned and operated by the state
31 and certified pursuant to federal regulations in 42 C.F.R. and
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1 to which the agency may pay for health-related care and
2 services provided on a 24-hour-a-day basis, for a recipient
3 who needs such care because of a developmental disability or
4 related condition.
5 Section 7. Paragraph (a) of subsection (2) and
6 subsection (8) of section 409.908, Florida Statutes, 1998
7 Supplement, are amended to read:
8 409.908 Reimbursement of Medicaid providers.--Subject
9 to specific appropriations, the agency shall reimburse
10 Medicaid providers, in accordance with state and federal law,
11 according to methodologies set forth in the rules of the
12 agency and in policy manuals and handbooks incorporated by
13 reference therein. These methodologies may include fee
14 schedules, reimbursement methods based on cost reporting,
15 negotiated fees, competitive bidding pursuant to s. 287.057,
16 and other mechanisms the agency considers efficient and
17 effective for purchasing services or goods on behalf of
18 recipients. Payment for Medicaid compensable services made on
19 behalf of Medicaid eligible persons is subject to the
20 availability of moneys and any limitations or directions
21 provided for in the General Appropriations Act or chapter 216.
22 Further, nothing in this section shall be construed to prevent
23 or limit the agency from adjusting fees, reimbursement rates,
24 lengths of stay, number of visits, or number of services, or
25 making any other adjustments necessary to comply with the
26 availability of moneys and any limitations or directions
27 provided for in the General Appropriations Act, provided the
28 adjustment is consistent with legislative intent.
29 (2)(a)1. Reimbursement to nursing homes licensed under
30 part II of chapter 400 and state-owned-and-operated
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1 intermediate care facilities for the developmentally disabled
2 licensed under chapter 393 must be made prospectively.
3 2. Unless otherwise limited or directed in the General
4 Appropriations Act, reimbursement to hospitals licensed under
5 part I of chapter 395 for the provision of swing-bed nursing
6 home services must be made on the basis of the average
7 statewide nursing home payment, and reimbursement to a
8 hospital licensed under part I of chapter 395 for the
9 provision of skilled nursing services must be made on the
10 basis of the average nursing home payment for those services
11 in the county in which the hospital is located. When a
12 hospital is located in a county that does not have any
13 community nursing homes, reimbursement must be determined by
14 averaging the nursing home payments, in counties that surround
15 the county in which the hospital is located. Reimbursement to
16 hospitals, including Medicaid payment of Medicare copayments,
17 for skilled nursing services shall be limited to 30 days,
18 unless a prior authorization has been obtained from the
19 agency. Medicaid reimbursement may be extended by the agency
20 beyond 30 days, and approval must be based upon verification
21 by the patient's physician that the patient requires
22 short-term rehabilitative and recuperative services only, in
23 which case an extension of no more than 15 days may be
24 approved. Reimbursement to a hospital licensed under part I of
25 chapter 395 for the temporary provision of skilled nursing
26 services to nursing home residents who have been displaced as
27 the result of a natural disaster or other emergency may not
28 exceed the average county nursing home payment for those
29 services in the county in which the hospital is located and is
30 limited to the period of time which the agency considers
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1 necessary for continued placement of the nursing home
2 residents in the hospital.
3 (8) A provider of home-based or community-based
4 services rendered pursuant to a federally approved waiver
5 shall be reimbursed based on an established or negotiated rate
6 for each service. These rates shall be established according
7 to an analysis of the expenditure history and prospective
8 budget developed by each contract provider participating in
9 the waiver program, or under any other methodology adopted by
10 the agency and approved by the Federal Government in
11 accordance with the waiver. Effective July 1, 1996, privately
12 owned and operated community-based residential facilities
13 which meet agency requirements and which formerly received
14 Medicaid reimbursement for the optional intermediate care
15 facility for the mentally retarded service may participate in
16 the developmental services waiver as part of a
17 home-and-community-based continuum of care for Medicaid
18 recipients who receive waiver services.
19 Section 8. Subsection (1) of section 92.53, Florida
20 Statutes, is amended to read:
21 92.53 Videotaping of testimony of victim or witness
22 under age 16 or person with mental retardation.--
23 (1) On motion and hearing in camera and a finding that
24 there is a substantial likelihood that a victim or witness who
25 is under the age of 16 or who is a person with mental
26 retardation as defined in s. 393.063(45)(41) would suffer at
27 least moderate emotional or mental harm due to the presence of
28 the defendant if the child or person with mental retardation
29 is required to testify in open court, or that such victim or
30 witness is otherwise unavailable as defined in s. 90.804(1),
31 the trial court may order the videotaping of the testimony of
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1 the victim or witness in a case, whether civil or criminal in
2 nature, in which videotaped testimony is to be utilized at
3 trial in lieu of trial testimony in open court.
4 Section 9. Section 914.16, Florida Statutes, is
5 amended to read:
6 914.16 Child abuse and sexual abuse of victims under
7 age 16 or persons with mental retardation; limits on
8 interviews.--The chief judge of each judicial circuit, after
9 consultation with the state attorney and the public defender
10 for the judicial circuit, the appropriate chief law
11 enforcement officer, and any other person deemed appropriate
12 by the chief judge, shall provide by order reasonable limits
13 on the number of interviews that a victim of a violation of s.
14 794.011, s. 800.04, or s. 827.03 who is under 16 years of age
15 or a victim of a violation of s. 794.011, s. 800.02, s.
16 800.03, or s. 825.102 who is a person with mental retardation
17 as defined in s. 393.063(45)(41) must submit to for law
18 enforcement or discovery purposes. The order shall, to the
19 extent possible, protect the victim from the psychological
20 damage of repeated interrogations while preserving the rights
21 of the public, the victim, and the person charged with the
22 violation.
23 Section 10. The introductory paragraph of subsection
24 (2) of section 914.17, Florida Statutes, is amended to read:
25 914.17 Appointment of advocate for victims or
26 witnesses who are minors or persons with mental retardation.--
27 (2) An advocate shall be appointed by the court to
28 represent a person with mental retardation as defined in s.
29 393.063(45)(41) in any criminal proceeding if the person with
30 mental retardation is a victim of or witness to abuse or
31 neglect, or if the person with mental retardation is a victim
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1 of a sexual offense or a witness to a sexual offense committed
2 against a minor or person with mental retardation. The court
3 may appoint an advocate in any other criminal proceeding in
4 which a person with mental retardation is involved as either a
5 victim or a witness. The advocate shall have full access to
6 all evidence and reports introduced during the proceedings,
7 may interview witnesses, may make recommendations to the
8 court, shall be noticed and have the right to appear on behalf
9 of the person with mental retardation at all proceedings, and
10 may request additional examinations by medical doctors,
11 psychiatrists, or psychologists. It is the duty of the
12 advocate to perform the following services:
13 Section 11. Section 918.16, Florida Statutes, is
14 amended to read:
15 918.16 Sex offenses; testimony of person under age 16
16 or person with mental retardation; courtroom cleared;
17 exceptions.--In the trial of any case, civil or criminal, when
18 any person under the age of 16 or any person with mental
19 retardation as defined in s. 393.063(45)(41) is testifying
20 concerning any sex offense, the court shall clear the
21 courtroom of all persons except parties to the cause and their
22 immediate families or guardians, attorneys and their
23 secretaries, officers of the court, jurors, newspaper
24 reporters or broadcasters, court reporters, and at the request
25 of the victim, victim or witness advocates designated by the
26 state attorney's office.
27 Section 12. Sections 393.165 and 393.166, Florida
28 Statutes, are repealed.
29 Section 13. This act shall take effect July 1, 1999.
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2 HOUSE SUMMARY
3
Revises criteria for licensure of facilities for persons
4 with developmental disabilities and for placement of
clients in those facilities. Requires periodic
5 unannounced inspections and reviews of residential
facilities and comprehensive education programs. Revises
6 legislative intent, under "The Bill of Rights of Persons
who are Developmentally Disabled," with respect to the
7 treatment and services provided to such persons. Provides
legislative intent for development of annual plans for
8 implementation of treatment programs and residential
placements, and for making funding of such implementation
9 a legislative priority. Provides for civil actions to
enforce the rights of persons with developmental
10 disabilities. Provides for recovery of actual and
punitive damages, and costs and attorney's fees. Revises
11 requirements for Medicaid reimbursement for intermediate
care facility for the developmentally disabled services.
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