Senate Bill sb2394

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 2394

    By Senator Carlton





    23-697-03                                          See HB 1323

  1                      A bill to be entitled

  2         An act relating to advocacy councils; amending

  3         ss. 39.202, 163.62, and 394.4615, F.S.;

  4         providing advocacy councils access to certain

  5         records; amending s. 215.5601, F.S.; revising

  6         the membership of the Lawton Chiles Endowment

  7         Fund Advisory Council; amending s. 395.3025,

  8         F.S.; providing advocacy councils access to

  9         certain records; deleting requirement that a

10         patient or a patient representative be given

11         opportunity to object to the provision of such

12         records; amending s. 400.118, F.S.; providing

13         that representatives of advocacy councils,

14         rather than of long-term care ombudsman

15         councils, shall participate in quality-of-care

16         assessment visits at nursing homes; amending s.

17         400.408, F.S.; revising the membership of local

18         coordinating workgroups relating to unlicensed

19         assisted living facilities; amending s.

20         402.164, F.S.; revising legislative intent and

21         definitions relating to the Florida Statewide

22         Advocacy Council and Florida local advocacy

23         councils; expanding the definition of "client";

24         including federal health and human services in

25         the definition of "client services"; amending

26         s. 402.165, F.S.; transferring the Florida

27         Statewide Advocacy Council from the Department

28         of Children and Family Services to the Justice

29         Administrative Commission by a type two

30         transfer; providing that the council is an

31         independent state agency; increasing the

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         membership of the council; increasing the terms

 2         of members of the council; authorizing the

 3         council to create a foundation for certain

 4         purposes; prohibiting changes in the council's

 5         annual budget requests by the Justice

 6         Administrative Commission; providing additional

 7         responsibilities and titles for the chair and

 8         vice chair of the council and increasing their

 9         terms; providing that the council shall be

10         provided access to certain confidential records

11         without the requirement of court approval;

12         providing a definition; providing a fine for

13         persons refusing to provide such access;

14         requiring state agencies to provide notice to

15         the council regarding certain programs;

16         providing for interprogram agreements regarding

17         certain investigatory matters; amending s.

18         402.166, F.S.; revising various provisions

19         relating to local advocacy councils; increasing

20         the number of local advocacy councils which may

21         be established; deleting a prohibition on

22         relatives serving simultaneously on a local

23         council; increasing the terms of members on

24         such councils; providing local councils with

25         access to certain records; deleting the

26         requirement that local councils review client

27         service programs; amending s. 402.167, F.S.;

28         requiring state agencies to adopt rules which

29         provide access to their records and additional

30         case referrals to advocacy councils; requiring

31         the Department of Management Services to

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         provide office locations to local councils in

 2         each judicial circuit; revising provisions

 3         relating to locations where a council's offices

 4         are collocated with those of a state agency;

 5         requiring agency secretaries and directors to

 6         provide certain information to contractors and

 7         to make certain amendments in state plans filed

 8         with federal agencies; providing legislative

 9         intent that advocacy councils be provided

10         access to all protected health information of

11         clients receiving health and human services;

12         amending s. 402.70, F.S.; requiring certain

13         interagency agreements; amending s. 415.1034,

14         F.S.; deleting the requirement that certain

15         persons make suspected abuse reports to the

16         central abuse hotline; amending s. 415.104,

17         F.S.; requiring the Department of Children and

18         Family Services to provide certain copies of

19         abuse reports to advocacy councils; amending s.

20         415.1055, F.S.; requiring the Department of

21         Children and Family Services to provide copies

22         of certain investigative reports; amending s.

23         415.107, F.S.; clarifying that access to

24         certain records of the Department of Children

25         and Family Services is available to the

26         statewide and local advocacy councils; amending

27         s. 775.0823, F.S.; providing criminal penalties

28         for a violent offense against any official or

29         employee of the executive branch when engaged

30         in certain activities; amending s. 784.07,

31         F.S.; increasing classification and requiring

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         minimum terms of incarceration for the crime of

 2         assault or battery if the victim is a child

 3         protection services investigator or a member,

 4         employee, or agent of an advocacy council;

 5         providing an effective date.

 6  

 7  Be It Enacted by the Legislature of the State of Florida:

 8  

 9         Section 1.  Paragraphs (a), (c), and (k) of subsection

10  (2) and subsections (4) and (5) of section 39.202, Florida

11  Statutes, are amended to read:

12         39.202  Confidentiality of reports and records in cases

13  of child abuse or neglect.--

14         (2)  Access to such records, excluding the name of the

15  reporter which shall be released only as provided in

16  subsection (4), shall be granted only to the following

17  persons, officials, and agencies:

18         (a)  Employees, authorized agents, or contract

19  providers of the department, the Department of Health, or

20  county agencies responsible for carrying out:

21         1.  Child or adult protective investigations;

22         2.  Ongoing child or adult protective services;

23         3.  Healthy Start services; or

24         4.  Licensure or approval of adoptive homes, foster

25  homes, or child care facilities, or family day care homes or

26  informal child care providers who receive subsidized child

27  care funding, or other homes used to provide for the care and

28  welfare of children.

29  

30  Also, employees or agents of the Department of Juvenile

31  Justice responsible for the provision of services to children,

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  pursuant to chapters 984 and 985, and officials, employees, or

 2  agents of the Florida Statewide Advocacy Council for program

 3  investigation and monitoring activities, including

 4  reconciliation of a complaint pursuant to chapter 402.

 5         (c)  The state attorney of the judicial circuit in

 6  which the child resides or in which the alleged abuse or

 7  neglect occurred and the Florida local advocacy council for

 8  the service area in which the alleged abuse or neglect

 9  occurred.

10         (k)  Any appropriate official of the a Florida

11  Statewide Advocacy Council investigating a report of known or

12  suspected child abuse, abandonment, or neglect; the Auditor

13  General or the Office of Program Policy Analysis and

14  Government Accountability for the purpose of conducting audits

15  or examinations pursuant to law; or the guardian ad litem for

16  the child.

17         (4)  The name of any person reporting child abuse,

18  abandonment, or neglect may not be released to any person

19  other than employees of the department responsible for child

20  protective services, the central abuse hotline, law

21  enforcement, the child protection team, the Florida Statewide

22  Advocacy Council, the appropriate Florida local advocacy

23  council, or the appropriate state attorney, without the

24  written consent of the person reporting. This does not

25  prohibit the subpoenaing of a person reporting child abuse,

26  abandonment, or neglect when deemed necessary by the court,

27  the state attorney, or the department, the Florida Statewide

28  Advocacy Council, or the appropriate Florida local advocacy

29  council, provided the fact that such person made the report is

30  not disclosed. Any person who reports a case of child abuse or

31  neglect may, at the time he or she makes the report, request

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  that the department notify him or her that a child protective

 2  investigation occurred as a result of the report. Any person

 3  specifically listed in s. 39.201(1) who makes a report in his

 4  or her official capacity may also request a written summary of

 5  the outcome of the investigation. The department shall mail

 6  such a notice to the reporter within 10 days after completing

 7  the child protective investigation.

 8         (5)  All records and reports of the child protection

 9  team of the Department of Health are confidential and exempt

10  from the provisions of ss. 119.07(1) and 456.057, and shall

11  not be disclosed, except, upon request, to the state attorney,

12  law enforcement, the department, the Florida Statewide

13  Advocacy Council, the appropriate Florida local advocacy

14  council, and necessary professionals, in furtherance of the

15  treatment or additional evaluative needs of the child, by

16  order of the court, or to health plan payors, limited to that

17  information used for insurance reimbursement purposes.

18         Section 2.  Section 163.62, Florida Statutes, is

19  amended to read:

20         163.62  Collaborative client information system;

21  establishment.--Notwithstanding any general or special law to

22  the contrary, the agencies of one or more local governments

23  may establish a collaborative client information system. State

24  agencies and private agencies may participate in the

25  collaborative information system. Data related to the

26  following areas may be included in the collaborative

27  information system, although the system is not limited to only

28  these types of information: criminal justice, juvenile

29  justice, education, employment training, health, and human

30  services. The Florida Statewide Advocacy Council and the

31  Florida local advocacy councils shall have access to all

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  collaborative client information upon request as provided in

 2  ss. 402.164-402.167.

 3         Section 3.  Paragraph (a) of subsection (6) of section

 4  215.5601, Florida Statutes, is amended to read:

 5         215.5601  Lawton Chiles Endowment Fund.--

 6         (6)  ADVISORY COUNCIL.--The Lawton Chiles Endowment

 7  Fund Advisory Council is established for the purpose of

 8  reviewing the funding priorities of the state agencies,

 9  evaluating their requests against the mission and goals of the

10  agencies and legislative intent for the use of endowment

11  funds, and allowing for public input and advocacy.

12         (a)  The advisory council shall consist of 15 members,

13  including:

14         1.  The director of the United Way of Florida, Inc., or

15  his or her designee;

16         2.  The director of the Foster Parents Association, or

17  his or her designee;

18         3.  The chair of the Department of Elderly Affairs

19  Advisory Council, or his or her designee;

20         4.  The president of the Florida Association of Area

21  Agencies on Aging, or his or her designee;

22         5.  The Advocate General of the Florida Statewide

23  Advocacy Council State Long-Term Care Ombudsman, or his or her

24  designee;

25         6.  The state director of the Florida AARP, or his or

26  her designee;

27         7.  The director of the Florida Pediatric Society, or

28  his or her designee;

29         8.  A representative of the Guardian Ad Litem Program,

30  appointed by the Advocate General of the Florida Statewide

31  Advocacy Council Governor;

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         9.  A representative of a child welfare lead agency for

 2  community-based care, appointed by the Governor;

 3         10.  A representative of an elder care lead agency for

 4  community-based care, appointed by the Governor;

 5         11.  A representative of a statewide child advocacy

 6  organization, appointed by the Governor and the Advocate

 7  General of the Florida Statewide Advocacy Council;

 8         12.  One consumer caregiver for children, appointed by

 9  the Governor;

10         13.  One person over the age of 60 years to represent

11  the interests of elders, appointed by the Governor;

12         14.  One person under the age of 18 years to represent

13  the interests of children, appointed by the Governor; and

14         15.  One consumer caregiver for a functionally impaired

15  elderly person, appointed by the Governor.

16         Section 4.  Subsections (5) and (6) of section

17  394.4615, Florida Statutes, are amended to read:

18         394.4615  Clinical records; confidentiality.--

19         (5)  Information from clinical records may be used by

20  the Agency for Health Care Administration, the department, and

21  the Florida Statewide Advocacy Council or the appropriate

22  Florida local advocacy council councils for the purpose of

23  monitoring facility activity and investigating complaints

24  concerning facilities. Clinical records may be copied at the

25  expense of the facility upon demand of an official, employee,

26  or agent of the Florida Statewide Advocacy Council or the

27  appropriate Florida local advocacy council in accordance with

28  the provisions of s. 402.165 or s. 402.166.

29         (6)  Clinical records relating to a Medicaid recipient

30  shall be furnished to the Medicaid Fraud Control Unit in the

31  Department of Legal Affairs and the Florida Statewide Advocacy

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  Council or the appropriate Florida local advocacy council,

 2  upon request.

 3         Section 5.  Paragraph (h) of subsection (4) of section

 4  395.3025, Florida Statutes, is amended to read:

 5         395.3025  Patient and personnel records; copies;

 6  examination.--

 7         (4)  Patient records are confidential and must not be

 8  disclosed without the consent of the person to whom they

 9  pertain, but appropriate disclosure may be made without such

10  consent to:

11         (h)  The Statewide Advocacy State Long-Term Care

12  Ombudsman Council and the local advocacy long-term care

13  ombudsman councils, with respect to the records of a patient

14  who has been admitted from a nursing home or long-term care

15  facility, when the councils are conducting an investigation

16  involving the patient as authorized under part II of chapter

17  400, upon presentation of identification as a council member

18  by the person making the request. Disclosure under this

19  paragraph shall only be made after a competent patient or the

20  patient's representative has been advised that disclosure may

21  be made and the patient has not objected.

22         Section 6.  Paragraph (a) of subsection (2) of section

23  400.118, Florida Statutes, is amended to read:

24         400.118  Quality assurance; early warning system;

25  monitoring; rapid response teams.--

26         (2)(a)  The agency shall establish within each district

27  office one or more quality-of-care monitors, based on the

28  number of nursing facilities in the district, to monitor all

29  nursing facilities in the district on a regular, unannounced,

30  aperiodic basis, including nights, evenings, weekends, and

31  holidays. Quality-of-care monitors shall visit each nursing

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  facility at least quarterly. Priority for additional

 2  monitoring visits shall be given to nursing facilities with a

 3  history of resident care deficiencies. Quality-of-care

 4  monitors shall be registered nurses who are trained and

 5  experienced in nursing facility regulation, standards of

 6  practice in long-term care, and evaluation of patient care.

 7  Individuals in these positions shall not be deployed by the

 8  agency as a part of the district survey team in the conduct of

 9  routine, scheduled surveys, but shall function solely and

10  independently as quality-of-care monitors. Quality-of-care

11  monitors shall assess the overall quality of life in the

12  nursing facility and shall assess specific conditions in the

13  facility directly related to resident care, including the

14  operations of internal quality improvement and risk management

15  programs and adverse incident reports. The quality-of-care

16  monitor shall include in an assessment visit observation of

17  the care and services rendered to residents and formal and

18  informal interviews with residents, family members, facility

19  staff, resident guests, volunteers, other regulatory staff,

20  and representatives of the a long-term care ombudsman council

21  or Florida Statewide Advocacy Council or the appropriate

22  Florida local advocacy council.

23         Section 7.  Paragraph (i) of subsection (1) of section

24  400.408, Florida Statutes, is amended to read:

25         400.408  Unlicensed facilities; referral of person for

26  residency to unlicensed facility; penalties; verification of

27  licensure status.--

28         (1)

29         (i)  Each field office of the Agency for Health Care

30  Administration shall establish a local coordinating workgroup

31  which includes representatives of local law enforcement

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  agencies, state attorneys, local fire authorities, the

 2  Department of Children and Family Services, the district

 3  long-term care ombudsman council, and the local district human

 4  rights advocacy committee to assist in identifying the

 5  operation of unlicensed facilities and to develop and

 6  implement a plan to ensure effective enforcement of state laws

 7  relating to such facilities. The workgroup shall report its

 8  findings, actions, and recommendations semiannually to the

 9  Director of Health Facility Regulation of the agency.

10         Section 8.  Section 402.164, Florida Statutes, is

11  amended to read:

12         402.164  Legislative intent; definitions.--

13         (1)(a)  It is the intent of the Legislature to use

14  citizen volunteers as members of the Florida Statewide

15  Advocacy Council and the Florida local advocacy councils, and

16  to have the Florida Statewide Advocacy Council volunteers

17  operate a network of local advocacy councils that shall,

18  without interference by an executive agency, undertake to

19  discover, monitor, investigate, and determine the presence of

20  conditions or individuals that constitute a threat to the

21  rights, health, safety, or welfare of persons who receive

22  services from state agencies.

23         (b)  It is the further intent of the Legislature that

24  the monitoring and investigation shall safeguard the health,

25  safety, and welfare of consumers of services provided by these

26  state agencies. The Legislature finds that the government

27  oversight role of the members of the Florida Statewide

28  Advocacy Council and the Florida local advocacy councils is

29  necessary to ensure the protection and advocacy of all

30  Floridians that receive both state and federal health and

31  human services from state agencies. The Legislature further

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  finds that through the performance of the vital oversight

 2  duties and responsibilities by these citizen volunteers, the

 3  Florida Health and Human Services Access Act will be

 4  preserved.

 5         (2)  As used in ss. 402.164-402.167, the term:

 6         (a)  "Client" means any person who receives client

 7  services as defined in s. 402.164(2)(b), including, but not

 8  limited to, a client as defined in s. 393.063, s. 394.67, s.

 9  397.311, or s. 400.960, a forensic client or client as defined

10  in s. 916.106, a child, minor, or youth as defined in s.

11  39.01, s. 61.401, s. 92.53, s. 390.01115, or s. 411.202, a

12  child as defined in s. 827.01, a family as defined in s.

13  414.0252, a participant as defined in s. 400.551, a resident

14  as defined in s. 400.402, a Medicaid recipient or recipient as

15  defined in s. 409.901, a child receiving childcare as defined

16  in s. 402.302, a disabled adult as defined in s. 410.032 or s.

17  410.603, or a victim as defined in s. 39.01, s. 92.53, or s.

18  415.102, or s. 914.17 as each definition applies within its

19  respective chapter. "Client" also means an inmate as defined

20  in s. 397.753, a child as defined in s. 984.03, s. 985.03, or

21  s. 985.418, an exceptional student as defined in s.

22  1003.01(3)(a) or s. 1001.42(4)(l), a recipient of school-based

23  services in s. 1011.70, a newborn infant as defined in s.

24  63.0423, or an unborn person as defined in s. 731.303.

25         (b)  "Client services" means health and human services

26  which are provided through any state or federal health and

27  human services program to a client by a state agency or a

28  service provider operated, funded, or contracted by the state.

29         Section 9.  Section 402.165, Florida Statutes, is

30  amended to read:

31  

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         402.165  Florida Statewide Advocacy Council;

 2  confidential records and meetings.--

 3         (1)  The Statewide Human Rights Advocacy Committee

 4  within the Department of Children and Family Services is

 5  redesignated as the Florida Statewide Advocacy Council and

 6  shall be administratively housed as an independent state

 7  agency within the Justice Administrative Commission by a type

 8  two transfer to the Department of Management Services. Members

 9  of the council shall represent the interests of clients who

10  are served by state agencies that provide client services. The

11  Justice Administrative Commission Department of Children and

12  Family Services shall provide administrative support and

13  service to the statewide council to the extent requested by

14  the executive director within available resources. The

15  statewide council is not subject to control, supervision, or

16  direction by any state agency the Department of Children and

17  Family Services in the performance of its duties. The council

18  shall consist of 20 15 residents of this state, one from each

19  service area designated by the statewide council, who broadly

20  represent the interests of the public and the clients of the

21  state agencies that provide client services. The members shall

22  be representative of four groups of state residents as

23  follows: one provider who delivers client services as defined

24  in s. 402.164(2); two nonsalaried representatives of nonprofit

25  agencies or civic groups; four representatives of consumer

26  groups who are currently receiving, or have received, client

27  services within the past 4 years, at least one of whom must be

28  a consumer of one or more client services; and two residents

29  of the state who do not represent any of the foregoing groups,

30  one of whom represents the health-related professions and one

31  of whom represents the legal profession. In appointing the

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  representative of the health-related professions, the

 2  appointing authority shall give priority of consideration to a

 3  physician licensed under chapter 458 or chapter 459; and, in

 4  appointing the representative of the legal profession, the

 5  appointing authority shall give priority of consideration to a

 6  member in good standing of The Florida Bar. Of the remaining

 7  members, no more than one shall be an elected official; no

 8  more than one shall be a health professional; no more than one

 9  shall be a legal professional; no more than one shall be a

10  provider; no more than two shall be nonsalaried

11  representatives of nonprofit agencies or civic groups; and no

12  more than one shall be an individual whose primary area of

13  interest, experience, or expertise is a major client group of

14  a client services group that is not represented on the council

15  at the time of appointment. Except for the member who is an

16  elected public official, each member of the statewide council

17  must have served as a member of a Florida local advocacy

18  council, with priority consideration given to an applicant who

19  has served a full term on a local council. Persons related to

20  each other by consanguinity or affinity within the third

21  degree may not serve on the statewide council at the same

22  time.

23         (2)  Members of the statewide council shall be

24  appointed to serve terms of 6 4 years. A member may not serve

25  more than two full consecutive terms. The terms of members

26  currently serving a term of 4 years are extended by 2

27  additional years.

28         (3)  If a member of the statewide council fails to

29  attend two-thirds of the regular council meetings during the

30  course of a year, the position held by the member may be

31  deemed vacant by the council. The Governor shall fill the

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  vacancy pursuant to subsection (4). If a member of the

 2  statewide council violates this section or procedures adopted

 3  under this section, the council may recommend to the Governor

 4  that the member be removed.

 5         (4)  The Governor shall fill each vacancy on the

 6  statewide council from a list of nominees submitted by the

 7  statewide council. A list of candidates may be submitted to

 8  the statewide council by the local council in the service area

 9  from which the vacancy occurs. Priority of consideration shall

10  be given to the appointment of an individual who is receiving

11  one or more client services and whose primary interest,

12  experience, or expertise lies with a major client group that

13  is not represented on the council at the time of the

14  appointment. If an appointment is not made within 60 days

15  after a vacancy occurs on the statewide council, the vacancy

16  may be filled by a majority vote of the statewide council

17  without further action by the Governor. A person who is

18  employed by any state agency in client services may not be

19  appointed to the statewide council.

20         (5)(a)  Members of the statewide council shall receive

21  no compensation, but are entitled to be reimbursed for per

22  diem and travel expenses in accordance with s. 112.061.

23         (b)  The council shall select an executive director who

24  shall serve at the pleasure of the council and shall perform

25  the duties delegated to him or her by the council. The

26  compensation of the executive director and staff shall be

27  established in accordance with the rules of the Selected

28  Exempt Service.

29         (c)  The council may apply for, receive, and accept

30  grants, gifts, donations, bequests, and other payments

31  including money or property, real or personal, tangible or

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  intangible, and service from any governmental or other public

 2  or private entity or person and make arrangements as to the

 3  use of same. The council may create a foundation for such

 4  purposes.

 5         (d)  The statewide council shall annually prepare a

 6  legislative budget request that is not to be changed by the

 7  Justice Administrative Commission department staff after it is

 8  approved by the council and, but shall be submitted to the

 9  Governor for inclusion in the Governor's legislative budget

10  request and transmittal to the Legislature. The budget shall

11  include a request for funds to carry out the activities of the

12  statewide council and the local councils.

13         (6)  The members of the statewide council shall elect a

14  chair, who shall also serve in the capacity of Advocate

15  General for the State of Florida, and a vice chair, who shall

16  also serve in the capacity of Lieutenant Advocate General for

17  the State of Florida, to terms of 2 years 1 year. A person may

18  not serve as chair or vice chair for more than two full

19  consecutive terms.

20         (7)  The responsibilities of the statewide council

21  include, but are not limited to:

22         (a)  Serving as an independent third-party mechanism

23  within Florida state government for protecting the

24  constitutional and human rights of clients within programs or

25  facilities operated, funded, or contracted by any state agency

26  that provides client services.

27         (b)  Monitoring by site visit and access to inspection

28  of records the delivery and use of services, programs, or

29  facilities operated, funded, or contracted by any state agency

30  that provides client services, for the purpose of preventing

31  abuse or deprivation of the constitutional and human rights of

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  clients. The statewide council may conduct an unannounced site

 2  visit or monitoring visit and must be provided access to that

 3  involves the inspection of records if the visit is conditioned

 4  upon a complaint. A complaint may be generated by the council

 5  itself if information from any state agency that provides

 6  client services or from other sources indicates a situation at

 7  the program or facility that indicates possible abuse or

 8  neglect or deprivation of the constitutional and human rights

 9  of clients. For the purposes of this section, the term

10  "provided access to records" means a visual inspection of such

11  records is permitted and a copy of the hard-copy or electronic

12  version of the records maintained is made available by the

13  state agency, facility, provider, or contractor. The statewide

14  council shall establish and follow uniform criteria for the

15  review of information and generation of complaints. Routine

16  program monitoring and reviews that do not require an

17  examination of records may be made unannounced.

18         (c)  Receiving, investigating, and resolving reports of

19  abuse or deprivation of constitutional and human rights

20  referred to the statewide council by a local council. If a

21  matter constitutes a threat to the life, safety, or health of

22  clients or is multiservice-area multidistrict in scope, the

23  statewide council may exercise such powers without the

24  necessity of a referral from a local council.

25         (d)  Reviewing existing programs or services and new or

26  revised programs of the state agencies that provide client

27  services and making recommendations as to how the rights of

28  clients are affected. State agencies shall notify the

29  executive director of the statewide council as to each new or

30  revised statewide program within 60 days prior to

31  implementation to provide the council a reasonable period of

                                  17

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  time to determine how the rights of clients are affected by

 2  such revision or implementation of such program.

 3         (e)  Submitting an annual report to the Legislature, no

 4  later than December 30 of each calendar year, concerning

 5  activities, recommendations, and complaints reviewed or

 6  developed by the council during the year.

 7         (f)  Conducting meetings at least six times a year at

 8  the call of the chair and at other times at the call of the

 9  Governor or by written request of six members of the council.

10         (g)  Adopting rules pursuant to ss. 120.536(1) and

11  120.54 to implement the provisions of this section, including,

12  at a minimum:

13         1.  Providing uniform procedures for gaining access to

14  and maintaining confidential information.

15         2.  Developing and adopting uniform statewide

16  procedures to be used to carry out the operations purpose and

17  responsibilities of the statewide council and the local

18  councils, which procedures shall include, but need not be

19  limited to, the following:

20         a.1.  The responsibilities of the statewide council and

21  the local councils;

22         b.2.  The organization and operation of the statewide

23  council and the local councils, including procedures for

24  replacing a member, formats for maintaining records of council

25  activities, and criteria for determining what constitutes a

26  conflict of interest for purposes of assigning and conducting

27  investigations and monitoring;

28         c.3.  Uniform procedures for the statewide council and

29  the local councils relating to receiving and investigating

30  reports of abuse or deprivation of constitutional or human

31  rights;

                                  18

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         4.  The responsibilities and relationship of the local

 2  councils to the statewide council;

 3         d.5.  The relationship of the statewide council to the

 4  state agencies that receive and investigate reports of abuse

 5  and neglect of clients of state agencies, including the way in

 6  which reports of findings and recommendations related to

 7  reported abuse or neglect are issued given to the appropriate

 8  state agency that provides client services;

 9         e.6.  Provision for cooperation with the State

10  Long-Term Care Ombudsman Council; and

11         f.7.  Procedures for appeal. An appeal to the statewide

12  council is made by a local council when a valid complaint is

13  not resolved at the local level. The statewide council may

14  appeal an unresolved complaint to the secretary or director of

15  the appropriate state agency that provides client services.

16  If, after exhausting all remedies, the statewide council is

17  not satisfied that the complaint can be resolved within the

18  state agency, the appeal may be referred to the Governor;

19         8.  Uniform procedures for gaining access to and

20  maintaining confidential information; and

21         9.  Definitions of misfeasance and malfeasance for

22  members of the statewide council and local councils.

23         (h)  Supervising the operations of the local councils,

24  monitoring the performance and activities of all local

25  councils, and providing technical assistance to members and

26  staff of local councils.

27         (i)  Providing for the development and presentation of

28  a standardized training program for members of local councils.

29         (j)  Ensuring coordination, communication, and

30  cooperation with the investigation of abuse, neglect, or

31  exploitation of vulnerable adults by joining with state

                                  19

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  agencies in developing and maintaining interprogram agreements

 2  or operational procedures among appropriate departmental

 3  programs, the Medicaid Fraud Control Unit, the Governor's

 4  Inspector General, and other agencies that provide services to

 5  clients. These agreements or procedures must cover such

 6  subjects as the appropriate roles and responsibilities of the

 7  state agency in identifying and responding to reports of

 8  abuse, neglect, or exploitation of clients; the provision of

 9  services; and related coordinated activities.

10         (k)  Serving in the administration of the State

11  Medicaid Plan by conducting investigations relating to the

12  administration of the plan or determining and improving

13  services to the recipients of the Medicaid program in

14  accordance with 42 C.F.R. ss. 431.302 and 431.306.

15         (l)  Serving as a citizen review panel of the state

16  plan submitted under the Child Abuse Prevention and Treatment

17  Act (CAPTA).

18         (8)(a)  In the performance of its duties, the statewide

19  council shall have:

20         1.  Authority to receive, investigate, seek to

21  conciliate, hold administrative hearings pursuant to chapter

22  120 on, and act on complaints that allege any abuse or

23  deprivation of constitutional or human rights of persons who

24  receive client services from any state agency. In performing

25  its duties under this subparagraph, the council may issue

26  declaratory statements pursuant to the provisions of chapter

27  120.

28         2.  Access to all state agency program and service

29  records and client records, files, and reports from any

30  program, service, or facility that is operated, funded, or

31  contracted by any state agency that provides client services

                                  20

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  and any records that are material to its investigation and are

 2  in the custody of any other agency or department of

 3  government, including law enforcement agencies, public

 4  education facilities, the Medicaid program, and Child

 5  Protective Services. The council's investigation or monitoring

 6  shall not impede or obstruct matters under investigation by

 7  law enforcement agencies or judicial authorities, and in

 8  accordance with s. 20.055, law enforcement agencies and

 9  inspector generals shall allow access of investigative records

10  to the council. Access shall not be granted if a specific

11  procedure or prohibition for reviewing records is required by

12  federal law and regulation that supersedes state law. Access

13  shall not be granted to the records of a private licensed

14  practitioner who is providing services outside the state

15  agency, or outside a state facility, and whose client is

16  competent and refuses disclosure.

17         3.  Standing to seek injunctive relief from petition

18  the circuit court for denial of access to client records or

19  state agency program or services records to its members or

20  members of any of the local advocacy councils that are

21  confidential as specified by law. The petition shall state the

22  specific reasons for which the council is seeking access and

23  the intended use of such information. The circuit court shall

24  issue a civil fine of $15,000 to any individual who withheld

25  client, program, or services records or otherwise denied

26  access to any records requested by the statewide council or

27  any of the local advocacy councils may authorize council

28  access to such records upon a finding that such access is

29  directly related to an investigation regarding the possible

30  deprivation of constitutional or human rights or the abuse of

31  a client. Original client files, agency records, and reports

                                  21

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  shall not be removed from a state agency, but copies shall be

 2  provided to the statewide council and the local advocacy

 3  councils at the state agency's expense. Under no circumstance

 4  shall the council have access to confidential adoption records

 5  once the adoption is finalized by a court in accordance with

 6  ss. 39.0132, 63.022, and 63.162. Upon completion of a general

 7  investigation of practices and procedures of a state agency,

 8  the statewide council shall report its findings to that

 9  agency.

10         (b)  All information obtained or produced by the

11  statewide council that is made confidential by law, that

12  relates to the identity of any client or group of clients

13  subject to the protections of this section, or that relates to

14  the identity of an individual who provides information to the

15  council about abuse or about alleged violations of

16  constitutional or human rights, is confidential and exempt

17  from s. 119.07(1) and s. 24(a), Art. I of the State

18  Constitution.

19         (c)  Portions of meetings of the statewide council that

20  relate to the identity of any client or group of clients

21  subject to the protections of this section, that relate to the

22  identity of an individual who provides information to the

23  council about abuse or about alleged violations of

24  constitutional or human rights, or wherein testimony is

25  provided relating to records otherwise made confidential by

26  law, are exempt from s. 286.011 and s. 24(b), Art. I of the

27  State Constitution.

28         (d)  All records prepared by members of the statewide

29  council that reflect a mental impression, investigative

30  strategy, or theory are exempt from s. 119.07(1) and s. 24(a),

31  Art. I of the State Constitution until the investigation is

                                  22

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  completed or until the investigation ceases to be active. For

 2  purposes of this section, an investigation is considered

 3  "active" while such investigation is being conducted by the

 4  statewide council with a reasonable, good faith belief that it

 5  may lead to a finding of abuse or of a violation of human

 6  rights. An investigation does not cease to be active so long

 7  as the statewide council is proceeding with reasonable

 8  dispatch and there is a good faith belief that action may be

 9  initiated by the council or other administrative or law

10  enforcement agency.

11         (e)  Any person who knowingly and willfully discloses

12  any such confidential information commits a misdemeanor of the

13  second degree, punishable as provided in s. 775.082 or s.

14  775.083.

15         Section 10.  Section 402.166, Florida Statutes, is

16  amended to read:

17         402.166  Florida local advocacy councils; confidential

18  records and meetings.--

19         (1)  Each district human rights advocacy committee

20  within each district service area of the Department of

21  Children and Family Services is redesignated as the Florida

22  Local Advocacy Council. The local councils are subject to

23  direction from and the supervision of the Florida Statewide

24  Advocacy Council. The Florida Statewide Advocacy Council

25  Department of Children and Family Services shall assign staff

26  to provide administrative support to the local councils, and

27  staff assigned to these positions shall perform the functions

28  required by the statewide and local advocacy councils without

29  interference from any state agency the department. The

30  Statewide Advocacy Council member and chair of the local

31  councils shall direct the activities of staff assigned to them

                                  23

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  to the extent necessary for the local councils to carry out

 2  their duties. The number and areas of responsibility of the

 3  local councils, not to exceed 60 46 councils statewide, shall

 4  be determined by the Florida Statewide Advocacy Council and

 5  shall be consistent with judicial circuit boundaries. Local

 6  councils shall meet at state-licensed facilities under their

 7  jurisdiction whenever possible.

 8         (2)  Each local council shall have no fewer than 7

 9  members and no more than 15 members, no more than 4 of whom

10  are or have been recipients of one or more client services

11  within the last 4 years, except that one member of this group

12  may be an immediate relative or legal representative of a

13  current or former client; two providers who deliver client

14  services as defined in s. 402.164(2); and two representatives

15  of professional organizations, one of whom represents the

16  health-related professions and one of whom represents the

17  legal profession. Priority of consideration shall be given to

18  the appointment of at least one medical or osteopathic

19  physician, as defined in chapters 458 and 459, and one member

20  in good standing of The Florida Bar. Priority of consideration

21  shall also be given to the appointment of an individual who is

22  receiving client services and whose primary interest,

23  experience, or expertise lies with a major client group not

24  represented on the council at the time of the appointment. A

25  person who is employed in client services by any state agency

26  may not be appointed to the council. No more than three

27  individuals who are providing contracted services for clients

28  to any state agency may serve on the same local council at the

29  same time. Persons related to each other by consanguinity or

30  affinity within the third degree may not serve on the same

31  local council at the same time. All members of local councils

                                  24

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  must successfully complete a standardized training course for

 2  council members within 3 months after their appointment to a

 3  local council. A member may not be assigned to an

 4  investigation that requires access to confidential information

 5  prior to the completion of the training course. After he or

 6  she completes the required training course, a member of a

 7  local council may not be prevented from participating in any

 8  activity of that local council, including investigations and

 9  monitoring, except due to a conflict of interest as described

10  in the procedures established by the statewide council

11  pursuant to subsection (7).

12         (3)(a)  With respect to existing local councils, each

13  member shall serve a term of 6 4 years. Upon expiration of a

14  term and in the case of any other vacancy, the local council

15  shall appoint a replacement by majority vote of the local

16  council, subject to the approval of the Governor. A member may

17  serve no more than two full consecutive terms.

18         (b)1.  The Governor shall appoint the first four

19  members of any newly created local council; and those four

20  members shall select the remaining members, subject to

21  approval of the Governor. If any of the first four members are

22  not appointed within 60 days after a request is submitted to

23  the Governor, those members may be appointed by a majority

24  vote of the statewide council without further action by the

25  Governor.

26         2.  Members shall serve for no more than two full

27  consecutive terms of 6 4 years, except that at the time of

28  initial appointment, terms shall be staggered so that

29  approximately one-half of the members first appointed shall

30  serve for terms of 6 4 years and the remaining members shall

31  

                                  25

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  serve for terms of 3 2 years. Vacancies shall be filled as

 2  provided in subparagraph 1.

 3         (c)  If no action is taken by the Governor to approve

 4  or disapprove a replacement of a member pursuant to this

 5  subsection within 30 days after the local council has notified

 6  the Governor of the appointment, then the appointment of the

 7  replacement may be considered approved by the statewide

 8  council.

 9         (4)  Each local council shall elect a chair and a vice

10  chair for a term of 1 year. A person may not serve as chair or

11  vice chair for more than two consecutive terms. The chair's

12  and vice chair's terms expire on September 30 of each year.

13         (5)  If a local council member fails to attend

14  two-thirds of the regular council meetings during the course

15  of a year, the local council may replace the member. If a

16  member of a local council violates this section or procedures

17  adopted under this section, the local council may recommend to

18  the Governor that the member be removed.

19         (6)  A member of a local council shall receive no

20  compensation but is entitled to be reimbursed for per diem and

21  travel expenses as provided in s. 112.061. Members may be

22  provided reimbursement for long-distance telephone calls if

23  such calls were necessary to an investigation of an abuse or

24  deprivation of constitutional or human rights.

25         (7)  A local council shall first seek to resolve a

26  complaint with the appropriate local administration, agency,

27  or program; any matter not resolved by the local council shall

28  be referred to the statewide council through appeal. A local

29  council shall comply with appeal procedures established by the

30  statewide council. The duties, actions, and procedures of both

31  new and existing local councils shall conform to ss.

                                  26

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  402.164-402.167. The duties of each local council shall

 2  include, but are not limited to:

 3         (a)  Serving as an independent third-party mechanism

 4  for protecting the constitutional and human rights of any

 5  client within a program or facility operated, funded, or

 6  contracted by a state agency providing client services in the

 7  local service area.

 8         (b)  Monitoring by site visit and access to inspection

 9  of records the delivery and use of services, programs, or

10  facilities operated, funded, or contracted by a state agency

11  that provides client services, for the purpose of preventing

12  abuse or deprivation of the constitutional and human rights of

13  clients. A local council may conduct an unannounced site visit

14  or monitoring visit and must be provided access to that

15  involves the inspection of records if the visit is conditioned

16  upon a complaint. A complaint may be generated by the council

17  itself if information from a state agency that provides client

18  services or from other sources indicates a situation at the

19  program or facility that indicates possible abuse or neglect

20  or deprivation of constitutional and human rights of clients.

21  For the purposes of this section, the term "provided access to

22  records" means a visual inspection of such records is

23  permitted and a copy of the hard-copy or electronic version of

24  the records maintained is made available by the state agency,

25  facility, provider, or contractor. The local council shall

26  follow uniform criteria established by the statewide council

27  for the review of information and generation of complaints.

28  Routine program monitoring and reviews that do not require an

29  examination of records may be made unannounced.

30  

31  

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         (c)  Receiving, investigating, and resolving reports of

 2  abuse or deprivation of constitutional and human rights in the

 3  local service area.

 4         (d)  Reviewing and making recommendations to the

 5  applicable local state agency head or director regarding how a

 6  client's constitutional or human rights might be affected by

 7  the client's participation in a proposed research project,

 8  prior to implementation of the project.

 9         (e)  Reviewing existing programs and proposed new or

10  revised programs of client services and making recommendations

11  as to how these programs and services affect or might affect

12  the constitutional or human rights of clients.

13         (e)(f)  Appealing to the statewide council any

14  complaint unresolved at the local level. Any matter that

15  constitutes a threat to the life, safety, or health of a

16  client or is multidistrict in scope shall automatically be

17  referred to the statewide council.

18         (f)(g)  Submitting an annual report by September 30 to

19  the statewide council concerning activities, recommendations,

20  and complaints reviewed or developed by the council during the

21  year.

22         (g)(h)  Conducting meetings at least six times a year

23  at the call of the chair and at other times at the call of the

24  Governor, at the call of the statewide council, or by written

25  request of a majority of the members of the council.

26         (8)(a)  In the performance of its duties, a local

27  council shall have the same right to be provided access to all

28  client records and state agency files and reports from any

29  program or service and to all records of contract providers or

30  facilities that are operated by, funded by, or under contract

31  with any state agency as specified in s. 402.165(8)(a)2. and

                                  28

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    Florida Senate - 2003                                  SB 2394
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 1  the same standing to seek injunctive relief for denial of

 2  access to such records as specified in s. 402.165(8)(a)3.:

 3         1.  Access to all client records, files, and reports

 4  from any program, service, or facility that is operated,

 5  funded, or contracted by any state agency that provides client

 6  services and any records that are material to its

 7  investigation and are in the custody of any other agency or

 8  department of government. The council's investigation or

 9  monitoring shall not impede or obstruct matters under

10  investigation by law enforcement agencies or judicial

11  authorities. Access shall not be granted if a specific

12  procedure or prohibition for reviewing records is required by

13  federal law and regulation that supersedes state law. Access

14  shall not be granted to the records of a private licensed

15  practitioner who is providing services outside state agencies

16  and facilities and whose client is competent and refuses

17  disclosure.

18         2.  Standing to petition the circuit court for access

19  to client records that are confidential as specified by law.

20  The petition shall state the specific reasons for which the

21  council is seeking access and the intended use of such

22  information. The court may authorize access to such records

23  upon a finding that such access is directly related to an

24  investigation regarding the possible deprivation of

25  constitutional or human rights or the abuse of a client.

26  Original client files, records, and reports shall not be

27  removed from a state agency. Upon no circumstances shall the

28  council have access to confidential adoption records once the

29  adoption is finalized in court in accordance with ss. 39.0132,

30  63.022, and 63.162. Upon completion of a general investigation

31  of practices and procedures followed by a state agency in

                                  29

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  providing client services, the council shall report its

 2  findings to the appropriate state agency.

 3         (b)  All information obtained or produced by a local

 4  council that is made confidential by law, that relates to the

 5  identity of any client or group of clients subject to the

 6  protection of this section, or that relates to the identity of

 7  an individual who provides information to the council about

 8  abuse or about alleged violations of constitutional or human

 9  rights, is confidential and exempt from s. 119.07(1) and s.

10  24(a), Art. I of the State Constitution.

11         (c)  Portions of meetings of a local council that

12  relate to the identity of any client or group of clients

13  subject to the protections of this section, that relate to the

14  identity of an individual who provides information to the

15  council about abuse or about alleged violations of

16  constitutional or human rights, or wherein testimony is

17  provided relating to records otherwise made confidential by

18  law, are exempt from s. 286.011 and s. 24(b), Art. I of the

19  State Constitution.

20         (d)  All records prepared by members of a local council

21  that reflect a mental impression, investigative strategy, or

22  theory are exempt from s. 119.07(1) and s. 24(a), Art. I of

23  the State Constitution until the investigation is completed or

24  until the investigation ceases to be active. For purposes of

25  this section, an investigation is considered "active" while

26  such investigation is being conducted by a local council with

27  a reasonable, good faith belief that it may lead to a finding

28  of abuse or of a violation of constitutional or human rights.

29  An investigation does not cease to be active so long as the

30  council is proceeding with reasonable dispatch and there is a

31  

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  good faith belief that action may be initiated by the council

 2  or other administrative or law enforcement agency.

 3         (e)  Any person who knowingly and willfully discloses

 4  any such confidential information commits a misdemeanor of the

 5  second degree, punishable as provided in s. 775.082 or s.

 6  775.083.

 7         Section 11.  Section 402.167, Florida Statutes, is

 8  amended to read:

 9         402.167  Duties of state agencies that provide client

10  services relating to the Florida Statewide Advocacy Council

11  and the Florida local advocacy councils.--

12         (1)  Each state agency that provides client services

13  shall adopt rules that are consistent with law, amended to

14  reflect any statutory changes, and that address at least the

15  following:

16         (a)  Procedures by which staff of state agencies refer

17  reports of abuse or matters that constitute a threat to the

18  life, health, safety, welfare, or human and constitutional

19  rights of clients to the Florida Statewide Advocacy Council

20  and the Florida local advocacy councils.

21         (b)  Procedures by which client information is made

22  available and accessible in both electronic and written form

23  to members of the Florida Statewide Advocacy Council and the

24  Florida local advocacy councils.

25         (c)  Procedures by which recommendations made by the

26  statewide and local councils will be incorporated into

27  policies, and procedures, and rules of the state agencies.

28         (2)  The Department of Management Services Children and

29  Family Services shall provide a maximum of 20 acceptable site

30  locations for the location of local councils' staff for each

31  of the respective 20 judicial circuits councils in

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  state-owned, state-leased, or state-contracted buildings or

 2  state agency area offices at the approval of the executive

 3  director of the Florida Statewide Advocacy Council. The

 4  department shall make arrangements with state agencies that

 5  are located in state-owned, state-leased, or state-contracted

 6  properties that provide client services under s. 402.164(2) to

 7  house the offices under the Florida Statewide Advocacy

 8  Council. Collocated costs paid by the Statewide Advocacy

 9  Council shall include and shall provide necessary equipment

10  and office supplies, including, but not be limited to, costs

11  for clerical and word processing services, photocopiers, mail

12  services, telephone services, computer network access and

13  related services, security services, janitorial services,

14  utilities, and parking for staff and state and local council

15  members and stationery and other necessary supplies, and shall

16  establish the procedures by which council members are

17  reimbursed for authorized expenditures.

18         (3)  The secretaries or directors of the state agencies

19  shall ensure the full cooperation and assistance of employees

20  of and contract providers to their respective state agencies

21  with members and staff of the statewide and local councils.

22  The secretaries or directors of the state agencies shall

23  notify all contract providers and service providers of the

24  powers, duties, and authority of, and the requirement to

25  provide access to information to, statewide and local council

26  members under ss. 402.164-402.166. Further, staff positions

27  that were assigned as of July 1, 2002, to the Florida local

28  advocacy council or their equivalent FTEs by the Department of

29  Children and Family Services shall be transferred to the

30  executive director of the Florida Statewide Advocacy Council

31  by a type two transfer the Secretary of Children and Family

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  Services shall ensure that, to the extent possible, staff

 2  assigned to the statewide council and local councils are free

 3  of interference from or control by the department in

 4  performing their duties relative to those councils.

 5         (4)  The secretaries or directors of the state agencies

 6  shall amend any state plans filed with federal agencies that

 7  provide federal funding of client services as defined in s.

 8  402.164(2) to reflect that the statewide and local advocacy

 9  councils' activities are part of the administration of the

10  respective state plan.

11         (5)  It is the intent of the Legislature that the

12  Florida Statewide Advocacy Council and local advocacy councils

13  are to have routine access to protected health information of

14  the beneficiaries of the health and human services and any

15  other information that is confidential in nature so that the

16  legal doctrine of expressio unis est exclusio alterius is

17  expressly renounced in the event that another statute

18  specifically fails to specify that the Florida Statewide

19  Advocacy Council or local advocacy council is to be provided

20  access to confidential information.

21         Section 12.  Section 402.70, Florida Statutes, is

22  amended to read:

23         402.70  Interagency agreement between state agencies

24  that provide health and human services and the Florida

25  Statewide Advocacy Council Department of Health and Department

26  of Children and Family Services.--State agencies The

27  Department of Health and the Department of Children and Family

28  Services shall enter into an interagency agreement to ensure

29  coordination and cooperation in identifying client

30  populations, developing service delivery systems, and meeting

31  the needs of the state's residents. The interagency agreement

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  must address cooperative programmatic issues,

 2  rules-development issues, and any other issues that must be

 3  resolved to ensure the continued working relationship among

 4  the health and human family services programs of the two

 5  departments. The state agencies shall enter into an

 6  interagency agreement with the Florida Statewide Advocacy

 7  Council to ensure access and cooperation in identifying and

 8  resolving client complaints and to address programmatic

 9  issues, rules-development issues, and any other issues that

10  must be resolved to ensure the legislative intent in s.

11  402.164. In accordance with the provisions of the Health

12  Insurance Portability and Accountability Act of 1996 (HIPAA)

13  and other federal privacy laws, the Florida Statewide Advocacy

14  Council, the Agency for Health Care Administration, the

15  Medicaid Fraud Control Unit of the Office of the Attorney

16  General, and the Inspector Governor shall enter into a

17  data-sharing agreement to ensure coordination and cooperation

18  of confidential client health information in monitoring,

19  investigating, protecting, and safeguarding the health,

20  safety, rights, and welfare of the clients of health and human

21  services and programs.

22         Section 13.  Paragraph (a) of subsection (1) of section

23  415.1034, Florida Statutes, is amended to read:

24         415.1034  Mandatory reporting of abuse, neglect, or

25  exploitation of vulnerable adults; mandatory reports of

26  death.--

27         (1)  MANDATORY REPORTING.--

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

29         1.  Physician, osteopathic physician, medical examiner,

30  chiropractic physician, nurse, paramedic, emergency medical

31  

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  technician, or hospital personnel engaged in the admission,

 2  examination, care, or treatment of vulnerable adults;

 3         2.  Health professional or mental health professional

 4  other than one listed in subparagraph 1.;

 5         3.  Practitioner who relies solely on spiritual means

 6  for healing;

 7         4.  Nursing home staff; assisted living facility staff;

 8  adult day care center staff; adult family-care home staff;

 9  social worker; or other professional adult care, residential,

10  or institutional staff;

11         5.  State, county, or municipal criminal justice

12  employee or law enforcement officer;

13         6.  An employee of the Department of Business and

14  Professional Regulation conducting inspections of public

15  lodging establishments under s. 509.032;

16         7.  Florida Statewide Advocacy Council or local

17  advocacy council member or long-term care ombudsman council

18  member; or

19         8.  Bank, savings and loan, or credit union officer,

20  trustee, or employee,

21  

22  who knows, or has reasonable cause to suspect, that a

23  vulnerable adult has been or is being abused, neglected, or

24  exploited shall immediately report such knowledge or suspicion

25  to the central abuse hotline.

26         Section 14.  Subsection (1) of section 415.104, Florida

27  Statutes, is amended to read:

28         415.104  Protective investigations of cases of abuse,

29  neglect, or exploitation of vulnerable adults; transmittal of

30  records to state attorney.--

31  

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         (1)  The department shall, upon receipt of a report

 2  alleging abuse, neglect, or exploitation of a vulnerable

 3  adult, begin within 24 hours a protective investigation of the

 4  facts alleged therein. If a caregiver refuses to allow the

 5  department to begin a protective investigation or interferes

 6  with the conduct of such an investigation, the appropriate law

 7  enforcement agency shall be contacted for assistance. If,

 8  during the course of the investigation, the department has

 9  reason to believe that the abuse, neglect, or exploitation is

10  perpetrated by a second party, the appropriate law enforcement

11  agency and state attorney shall be orally notified. The

12  department and the law enforcement agency shall cooperate to

13  allow the criminal investigation to proceed concurrently with,

14  and not be hindered by, the protective investigation. The

15  department shall make a preliminary written report to the law

16  enforcement agencies within 5 working days after the oral

17  report. The department shall, within 24 hours after receipt of

18  the report, notify the appropriate Florida local advocacy

19  council, or long-term care ombudsman council, when

20  appropriate, that an alleged abuse, neglect, or exploitation

21  perpetrated by a second party has occurred. The department

22  must also provide to the Florida Statewide Advocacy Council or

23  the appropriate local advocacy council the initial report on

24  any adult or group of adults that such council requests either

25  in writing or verbally. Notice to the Florida local advocacy

26  council or long-term care ombudsman council may be

27  accomplished orally or in writing and shall include the name

28  and location of the vulnerable adult alleged to have been

29  abused, neglected, or exploited and the nature of the report.

30         Section 15.  Subsection (8) of section 415.1055,

31  Florida Statutes, is amended to read:

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         415.1055  Notification to administrative entities.--

 2         (8)  At the conclusion of a protective investigation at

 3  a facility, the department shall notify either the Florida

 4  local advocacy council or long-term care ombudsman council of

 5  the results of the investigation. The department must also

 6  provide to the Florida Statewide Advocacy Council or the

 7  appropriate local advocacy council the results of any

 8  investigation that such council requests in writing within 7

 9  days. This notification must be in writing.

10         Section 16.  Paragraph (g) of subsection (3) of section

11  415.107, Florida Statutes, is amended to read:

12         415.107  Confidentiality of reports and records.--

13         (3)  Access to all records, excluding the name of the

14  reporter which shall be released only as provided in

15  subsection (6), shall be granted only to the following

16  persons, officials, and agencies:

17         (g)  Any appropriate official of the Florida Statewide

18  Advocacy Council or a local advocacy council or long-term care

19  ombudsman council investigating a report of known or suspected

20  abuse, neglect, or exploitation of a vulnerable adult.

21         Section 17.  Section 775.0823, Florida Statutes, is

22  amended to read:

23         775.0823  Violent offenses committed against law

24  enforcement officers, correctional officers, state attorneys,

25  assistant state attorneys, executive branch officials and

26  employees, justices, or judges.--The Legislature does hereby

27  provide for an increase and certainty of penalty for any

28  person convicted of a violent offense against any law

29  enforcement or correctional officer, as defined in s.

30  943.10(1), (2), (3), (6), (7), (8), or (9); against any state

31  attorney elected pursuant to s. 27.01 or assistant state

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  attorney appointed under s. 27.181; against any state official

 2  or employee of the executive branch as described in chapter

 3  20; or against any justice or judge of a court described in

 4  Art. V of the State Constitution, which offense arises out of

 5  or in the scope of the officer's duty as a law enforcement or

 6  correctional officer, the state attorney's or assistant state

 7  attorney's duty as a prosecutor or investigator, the state

 8  official's or employee's duty as an enforcer, investigator or

 9  monitor, or the justice's or judge's duty as a judicial

10  officer, as follows:

11         (1)  For murder in the first degree as described in s.

12  782.04(1), if the death sentence is not imposed, a sentence of

13  imprisonment for life without eligibility for release.

14         (2)  For attempted murder in the first degree as

15  described in s. 782.04(1), a sentence pursuant to s. 775.082,

16  s. 775.083, or s. 775.084.

17         (3)  For murder in the second degree as described in s.

18  782.04(2) and (3), a sentence pursuant to s. 775.082, s.

19  775.083, or s. 775.084.

20         (4)  For attempted murder in the second degree as

21  described in s. 782.04(2) and (3), a sentence pursuant to s.

22  775.082, s. 775.083, or s. 775.084.

23         (5)  For murder in the third degree as described in s.

24  782.04(4), a sentence pursuant to s. 775.082, s. 775.083, or

25  s. 775.084.

26         (6)  For attempted murder in the third degree as

27  described in s. 782.04(4), a sentence pursuant to s. 775.082,

28  s. 775.083, or s. 775.084.

29         (7)  For manslaughter as described in s. 782.07 during

30  the commission of a crime, a sentence pursuant to s. 775.082,

31  s. 775.083, or s. 775.084.

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         (8)  For kidnapping as described in s. 787.01, a

 2  sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

 3         (9)  For aggravated battery as described in s. 784.045,

 4  a sentence pursuant to s. 775.082, s. 775.083, or s. 775.084.

 5         (10)  For aggravated assault as described in s.

 6  784.021, a sentence pursuant to s. 775.082, s. 775.083, or s.

 7  775.084.

 8  

 9  Notwithstanding the provisions of s. 948.01, with respect to

10  any person who is found to have violated this section,

11  adjudication of guilt or imposition of sentence shall not be

12  suspended, deferred, or withheld.

13         Section 18.  Subsections (1) and (2) of section 784.07,

14  Florida Statutes, are amended to read:

15         784.07  Assault or battery of law enforcement officers,

16  firefighters, emergency medical care providers, public transit

17  employees or agents, or other specified officers;

18  reclassification of offenses; minimum sentences.--

19         (1)  As used in this section, the term:

20         (a)  "Law enforcement officer" includes a law

21  enforcement officer, a correctional officer, a correctional

22  probation officer, a part-time law enforcement officer, a

23  part-time correctional officer, an auxiliary law enforcement

24  officer, and an auxiliary correctional officer, as those terms

25  are respectively defined in s. 943.10, and any county

26  probation officer; employee or agent of the Department of

27  Corrections who supervises or provides services to inmates;

28  officer of the Parole Commission; and law enforcement

29  personnel of the Fish and Wildlife Conservation Commission,

30  the Department of Environmental Protection, or the Department

31  of Law Enforcement.

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1         (b)  "Firefighter" means any person employed by any

 2  public employer of this state whose duty it is to extinguish

 3  fires; to protect life or property; or to enforce municipal,

 4  county, and state fire prevention codes, as well as any law

 5  pertaining to the prevention and control of fires.

 6         (c)  "Emergency medical care provider" means an

 7  ambulance driver, emergency medical technician, paramedic,

 8  registered nurse, physician as defined in s. 401.23, medical

 9  director as defined in s. 401.23, or any person authorized by

10  an emergency medical service licensed under chapter 401 who is

11  engaged in the performance of his or her duties. The term

12  "emergency medical care provider" also includes physicians,

13  employees, agents, or volunteers of hospitals as defined in

14  chapter 395, who are employed, under contract, or otherwise

15  authorized by a hospital to perform duties directly associated

16  with the care and treatment rendered by the hospital's

17  emergency department or the security thereof.

18         (d)  "Public transit employees or agents" means bus

19  operators, train operators, revenue collectors, security

20  personnel, equipment maintenance personnel, or field

21  supervisors, who are employees or agents of a transit agency

22  as described in s. 812.015(1)(l).

23         (e)  "Other specified officer" means a Child Protection

24  Services investigator or a member, employee, or agent of the

25  Florida Statewide Advocacy Council and Florida local advocacy

26  council.

27         (2)  Whenever any person is charged with knowingly

28  committing an assault or battery upon a law enforcement

29  officer, a firefighter, an emergency medical care provider, a

30  traffic accident investigation officer as described in s.

31  316.640, a traffic infraction enforcement officer as described

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    Florida Senate - 2003                                  SB 2394
    23-697-03                                          See HB 1323




 1  in s. 316.640, a parking enforcement specialist as defined in

 2  s. 316.640, or a security officer employed by the board of

 3  trustees of a community college, or another specified officer,

 4  while the officer, firefighter, emergency medical care

 5  provider, intake officer, traffic accident investigation

 6  officer, traffic infraction enforcement officer, parking

 7  enforcement specialist, public transit employee or agent, or

 8  security officer, or other specified officer is engaged in the

 9  lawful performance of his or her duties, the offense for which

10  the person is charged shall be reclassified as follows:

11         (a)  In the case of assault, from a misdemeanor of the

12  second degree to a misdemeanor of the first degree.

13         (b)  In the case of battery, from a misdemeanor of the

14  first degree to a felony of the third degree.

15         (c)  In the case of aggravated assault, from a felony

16  of the third degree to a felony of the second degree.

17  Notwithstanding any other provision of law, any person

18  convicted of aggravated assault upon a law enforcement officer

19  shall be sentenced to a minimum term of imprisonment of 3

20  years.

21         (d)  In the case of aggravated battery, from a felony

22  of the second degree to a felony of the first degree.

23  Notwithstanding any other provision of law, any person

24  convicted of aggravated battery of a law enforcement officer

25  shall be sentenced to a minimum term of imprisonment of 5

26  years.

27         Section 19.  This act shall take effect July 1, 2003.

28  

29  

30  

31  

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