HB 1429

1
A bill to be entitled
2An act relating to advocacy councils; amending s. 402.164,
3F.S.; revising definitions; amending s. 402.165, F.S.;
4providing that the Florida Statewide Advocacy Council
5shall be located in the Office of the Attorney General but
6may be assigned by the Legislature for administrative
7support purposes to any government agency; providing and
8revising membership criteria for the statewide council;
9exempting the statewide council from control, supervision,
10or direction by any government entity in certain
11circumstances; providing an exception to term limits;
12providing that members failing to attend two-thirds of
13conference call meetings over the course of a year may
14have their positions deemed vacant by the council;
15authorizing the Attorney General to fill certain vacancies
16on the council; revising the nomination process for the
17filling of vacancies; authorizing the Attorney General to
18select an executive director for the council; requiring
19that certain classes and the placement of certain staff
20positions be determined in consultation with the statewide
21council; requiring the statewide council to establish a
22not-for-profit mechanism for securing and receiving
23funding, gifts, donations, or grants; requiring the
24executive director to annually prepare a budget request
25for submission to the Attorney General and the
26Legislature; requiring the budget to include certain
27information; revising certain responsibilities of the
28statewide council; providing that a complaint may be
29generated by the council itself after consultation with
30the Office of the Attorney General; authorizing meetings
31to be conducted at the call of the Attorney General;
32authorizing telephone conference calls and providing
33notice requirements therefor; requiring the statewide
34council to develop and adopt certain procedures; providing
35certain supervisory responsibilities for the statewide
36council; requiring certain interagency agreements between
37the council and the state agencies to be negotiated and
38signed at certain times; requiring that certain portions
39of meetings be kept confidential; amending s. 402.166,
40F.S.; requiring the statewide council to participate in
41the selection and assignment of local council staff;
42requiring local support staff to work under the direction
43and supervision of the executive director in consultation
44with certain statewide council members; revising
45authorized locations for local council meetings; revising
46criteria for local council membership; revising procedures
47for the appointment of replacement members; requiring the
48Attorney General to appoint the first four members of any
49newly created local council; authorizing the local council
50to recommend to the Attorney General that certain members
51be removed; authorizing reimbursement for long-distance
52telephone calls if the calls were necessary to the duties
53and responsibilities of the council; authorizing local
54councils to self-generate complaints under certain
55circumstances; requiring certain matters to be referred to
56the statewide council; authorizing the Attorney General to
57call meetings; requiring that certain portions of meetings
58be kept confidential; amending s. 402.167, F.S.; requiring
59secretaries and directors of the state agencies providing
60client services relating to the statewide council to
61ensure that contract providers are provided with certain
62information; providing an effective date.
63
64Be It Enacted by the Legislature of the State of Florida:
65
66     Section 1.  Paragraphs (b) and (c) of subsection (2) of
67section 402.164, Florida Statutes, are amended to read:
68     402.164  Legislative intent; definitions.--
69     (2)  As used in ss. 402.164-402.167, the term:
70     (b)  "Client" means a client as defined in s. 393.063, s.
71394.67, s. 397.311, or s. 400.960, a forensic client or client
72as defined in s. 916.106, a child or youth as defined in s.
7339.01, a child as defined in s. 827.01, a child, juvenile, or
74youth as defined in s. 985.03, a family as defined in s.
75414.0252, a participant as defined in s. 400.551, a resident as
76defined in s. 400.402, a Medicaid recipient or recipient as
77defined in s. 409.901, a child receiving child care as defined
78in s. 402.302, a disabled adult as defined in s. 410.032 or s.
79410.603, or a victim as defined in s. 39.01 or s. 415.102 as
80each definition applies within its respective chapter.
81     (c)  "Client services" means health and human services that
82are provided to a client by a state agency or a service provider
83operated, funded, licensed, regulated, or contracted by the
84state.
85     Section 2.  Section 402.165, Florida Statutes, is amended
86to read:
87     402.165  Florida Statewide Advocacy Council; confidential
88records and meetings.--
89     (1)  The Florida Statewide Advocacy Council shall be
90located in the Executive Office of the Attorney General Governor
91but may be assigned by the Legislature Governor for
92administrative support purposes to any governmental Governor's
93agency. Members shall be appointed by the Attorney General from
94a list of nominations submitted as follows: four members
95nominated by the President of the Senate, three members
96nominated by the Speaker of the House of Representatives, three
97members nominated by the Governor, two members nominated by the
98Chief Financial Officer, and three members nominated by the
99statewide council. Should it be deemed necessary to expand the
100council to the maximum membership of 20 members, the remaining
101five members shall be appointed by the Attorney General and may
102be nominated by any of the previously referenced entities.
103Members of the council shall represent the interests of clients
104who are served by state agencies that provide client services.
105In the performance of its duties, the statewide council is not
106subject to control, supervision, or direction by any state
107agency or government entity providing client services in the
108performance of its duties. The council shall consist of not less
109than 15 and not more than 20 residents of this state, one from
110each service area designated by the statewide council, who
111broadly represent the interests of the public and the clients of
112the state agencies that provide client services. The members
113shall be representative of groups of state residents as follows:
114a provider who delivers client services; a nonsalaried
115representative of nonprofit agencies or civic groups; a
116representative of consumer groups who is currently receiving, or
117has received within the past 4 years, one or more client
118services within the past 4 years; a representative with social
119services experience; a representative with experience in law
120enforcement or other professional investigations; and two
121residents of the state who do not represent any of the foregoing
122groups, but may represent a health-related profession or the
123legal profession. In appointing the representative of the
124health-related professions, the Attorney General appointing
125authority shall give priority of consideration to a physician
126licensed under chapter 458 or chapter 459; and, in appointing
127the representative of the legal profession, the Attorney General
128appointing authority shall give priority of consideration to a
129member in good standing of The Florida Bar. Of the remaining
130members, no more than one shall be an elected official. Except
131for the member who is an elected public official, each candidate
132for the statewide council must be given priority consideration
133if he or she has completed at least one term served as a member
134of a local council or the statewide council. Persons related to
135each other by consanguinity or affinity within the third degree
136may not serve on the statewide council at the same time.
137     (2)  Members of the statewide council shall be appointed to
138serve terms of 4 years. A member may not serve more than two
139full consecutive terms, unless recommended by all local councils
140in the area and approved by the statewide council.
141     (3)  If a member of the statewide council fails to attend
142two-thirds of the regular council meetings and two-thirds of
143conference call meetings during the course of a year, the
144position held by the member may be deemed vacant by the council.
145The Attorney General Governor shall fill the vacancy according
146to subsection (4). If a member of the statewide council violates
147this section or procedures adopted under this section, the
148council may recommend to the Attorney General Governor that the
149member be removed.
150     (4)  The Attorney General shall Governor may fill a vacancy
151on the statewide council from a list of nominees submitted by
152the nomination entities listed in subsection (1) statewide
153council or appoint any qualified person. A list of candidates
154may be submitted to the nomination entities statewide council by
155the statewide council or local councils council in the service
156area from which the vacancy occurs. Priority of consideration
157shall be given to the appointment of an individual who is
158receiving one or more client services and whose primary
159interest, experience, or expertise lies with a major client
160group that is not represented on the council at the time of the
161appointment. If an appointment is not made within 60 days after
162a vacancy occurs on the statewide council, the vacancy may be
163filled by a majority vote of the statewide council without
164further action by the Attorney General Governor. A person who is
165employed by any state agency in client services may not be
166appointed to the statewide council.
167     (5)(a)  Members of the statewide council shall receive no
168compensation, but are entitled to be reimbursed for per diem and
169travel expenses in accordance with s. 112.061.
170     (b)  The Attorney General Governor shall select an
171executive director who shall serve at the pleasure of the
172Attorney General with input from the statewide council Governor
173and shall perform the duties delegated to him or her by the
174council. Classes and placement of all staff positions needed to
175support the statewide and local councils shall be determined in
176consultation with the statewide council. The compensation of the
177executive director and staff shall be established in accordance
178with the rules of the Selected Exempt Service.
179     (c)  The council may apply for, receive, and accept grants,
180gifts, donations, bequests, and other payments including money
181or property, real or personal, tangible or intangible, and
182service from any governmental or other public or private entity
183or person and make arrangements as to the use of same. With the
184assistance of the Office of the Attorney General, the statewide
185council shall establish a not-for-profit mechanism for securing
186and receiving such funding, gifts, donations, or grants.
187     (d)  In consultation with the members of the statewide
188council, the executive director shall annually prepare a budget
189request that, after it is approved by the council, shall be
190submitted to the Attorney General for submission to the
191Legislature Governor. The budget shall include a request for
192funds, including funding for staff, to carry out the activities
193and mission of the statewide council and the local councils and
194shall include funds for legal expenses as needed by the councils
195should access to records be denied, as well as funds for
196meetings of the councils and its committees and for required
197training.
198     (6)  The members of the statewide council shall elect a
199chair and a vice chair to terms of 1 year. A person may not
200serve as chair or vice chair for more than two full consecutive
201terms.
202     (7)  The responsibilities of the statewide council include,
203but are not limited to:
204     (a)  Serving as an independent third-party mechanism for
205protecting the constitutional and human rights of clients within
206programs or facilities operated, funded, licensed, regulated, or
207contracted by any state agency that provides client services.
208     (b)  Monitoring, by site visit and through access to
209records, the delivery and use of services, programs, or
210facilities operated, funded, licensed, regulated, or contracted
211by any state agency that provides client services, for the
212purpose of preventing abuse or deprivation of the constitutional
213and human rights of clients. The statewide council may conduct
214an unannounced site visit or monitoring visit that involves the
215inspection of records if the visit is conditioned upon a
216complaint. A complaint may be generated by the council itself,
217after consulting with the Attorney General's Governor's office,
218if information from any state agency that provides client
219services or from other sources indicates a situation at the
220program or facility that indicates possible abuse, or neglect,
221or deprivation of the constitutional or and human rights of
222clients. The statewide council shall establish and follow
223uniform criteria for the review of information and generation of
224complaints. Routine program monitoring and reviews that do not
225require an examination of records may be made unannounced.
226     (c)  Receiving, investigating, and resolving reports of
227abuse or deprivation of constitutional or and human rights
228referred to the statewide council by a local council. If a
229matter constitutes a threat to the life, safety, or health of
230clients or is multiservice-area in scope, the statewide council
231may exercise its powers without the necessity of a referral from
232a local council.
233     (d)  Reviewing existing programs or services and new or
234revised programs of the state agencies that provide client
235services and making recommendations as to how the rights of
236clients are affected.
237     (e)  Submitting an annual report to the Legislature, no
238later than December 30 of each calendar year, concerning
239activities, recommendations, and complaints reviewed or
240developed by the council during the year.
241     (f)  Conducting meetings at least six times a year at the
242call of the chair and at other times at the call of the Attorney
243General Governor or by written request of six members of the
244council. Telephone conference calls shall be advertised for
245weekly meetings and shall be held as deemed necessary for the
246purpose of statewide council executive committee, full council,
247or standing or special committee meetings. Should the need
248arise, the chair may call for a full council meeting at the time
249of any scheduled conference call as well as authorize conference
250call use for other meetings as requested. Conference call
251meetings shall not be included in the required six meetings a
252year, but some of the required meetings may be workshop meetings
253attended by only statewide council members.
254     (g)  Developing and adopting uniform procedures to be used
255to carry out the purpose and responsibilities of the statewide
256council and the local councils. These procedures shall include
257the duties and responsibilities of the statewide and local
258council members as well as the state and local council staffs.
259     (h)  Supervising the operations of the local councils and
260monitoring the performance and activities of all local councils
261and providing direction and technical assistance to members of
262local councils. The statewide council supervisory responsibility
263shall include the development and adoption of procedures for
264disciplinary action, suspension, and recommendation to the
265Attorney General for removal if indicated.
266     (i)  Providing for the development and presentation of a
267standardized training program for members of the statewide and
268local councils.
269     (j)  Developing and maintaining interagency agreements
270between the council and the state agencies providing client
271services. The interagency agreements shall address the
272coordination of efforts and identify the roles and
273responsibilities of the statewide and local councils and each
274agency in fulfillment of their responsibilities, including
275access to records for the purpose of carrying out investigatory
276and monitoring responsibilities. Such agreements shall be
277negotiated and signed annually or at other times as deemed
278necessary by the council.
279     (8)(a)  In the performance of its duties, the statewide
280council shall have:
281     1.  Authority to receive, investigate, seek to conciliate,
282hold hearings on, and act on complaints that allege any abuse or
283deprivation of constitutional or human rights of persons who
284receive or have been denied client services from any state
285agency.
286     2.  Access to all client records, files, and reports from
287any program, service, or facility that is operated, funded,
288licensed, regulated, or contracted by any state agency that
289provides client services and any records that are material to
290its investigation and are in the custody of any other agency or
291department of government. The council's investigation or
292monitoring shall not impede or obstruct matters under
293investigation by law enforcement agencies or judicial
294authorities. Access shall not be granted if a specific procedure
295or prohibition for reviewing records is required by federal law
296and regulation that supersedes state law. Access shall not be
297granted to the records of a private licensed practitioner who is
298providing services outside the state agency, or outside a state
299facility, and whose client is competent and refuses disclosure.
300     3.  Standing to petition the circuit court for access to
301client records that are confidential as specified by law or in
302instances in which access is denied. The petition shall state
303the specific reasons for which the council is seeking access and
304the intended use of such information. The circuit court may
305authorize council access to the records upon a finding that
306access is directly related to an investigation regarding the
307possible deprivation of constitutional or human rights or the
308abuse of a client. Original client files, agency records, and
309reports may not be removed from a state agency, but copies must
310be provided to the council and the local councils at the
311agency's expense. Under no circumstance shall the council have
312access to confidential adoption records once the adoption is
313finalized by a court in accordance with ss. 39.0132, 63.022, and
31463.162. Upon completion of a general investigation of practices
315and procedures of a state agency, the statewide council shall
316report its findings to that agency.
317     (b)  All information obtained or produced by the statewide
318council that is made confidential by law, that relates to the
319identity of any client or group of clients subject to the
320protections of this section, or that relates to the identity of
321an individual who provides information to the council about
322abuse or about alleged violations of constitutional or human
323rights, is confidential and exempt from s. 119.07(1) and s.
32424(a), Art. I of the State Constitution.
325     (c)  Portions of meetings of the statewide council that
326relate to the identity of any client or group of clients subject
327to the protections of this section, that relate to the identity
328of an individual who provides information to the council about
329abuse or about alleged violations of constitutional or human
330rights, or wherein testimony is provided relating to records
331otherwise made confidential by law, are exempt from s. 286.011
332and s. 24(b), Art. I of the State Constitution.
333     (d)  All records prepared by members of the statewide
334council that reflect a mental impression, investigative
335strategy, or theory are exempt from s. 119.07(1) and s. 24(a),
336Art. I of the State Constitution until the investigation is
337completed or until the investigation ceases to be active;
338however, portions of the record considered confidential by
339paragraph (c) shall remain confidential. For purposes of this
340section, an investigation is considered "active" while the
341investigation is being conducted by the statewide council with a
342reasonable, good faith belief that it may lead to a finding of
343abuse or of a violation of human rights. An investigation does
344not cease to be active so long as the statewide council is
345proceeding with reasonable dispatch and there is a good faith
346belief that action may be initiated by the council or other
347administrative or law enforcement agency.
348     (e)  Any person who knowingly and willfully discloses any
349confidential information commits a misdemeanor of the second
350degree, punishable as provided in s. 775.082 or s. 775.083.
351     Section 3.  Section 402.166, Florida Statutes, is amended
352to read:
353     402.166  Florida local advocacy councils; confidential
354records and meetings.--
355     (1)  The local councils are subject to direction from and
356the supervision of the statewide council. The statewide council
357shall participate in the selection and assignment of assign
358staff to provide support to the local councils. Local support
359staff shall work under the direction and supervision of the
360executive director in consultation with the statewide council
361members assigned to the area. The number and areas of
362responsibility of the local councils, not to exceed 46 councils
363statewide, shall be determined by the statewide council and
364shall be consistent with judicial circuit boundaries agreed upon
365by the statewide council and the Attorney General. Local
366councils shall meet at facilities or program or service centers
367under their jurisdiction whenever possible.
368     (2)  Each local council shall have no fewer than 7 members
369and no more than 15 members, no more than 4 of whom are
370currently receiving, or have received within the past 4 years,
371been recipients of one or more client services within the last 4
372years, except that one member of this group may be an immediate
373relative or legal representative of a current or former client;
374one representative with experience in the social services field;
375one representative with experience in law enforcement or other
376professional investigations; two providers who deliver client
377services as defined in s. 402.164(2); and two representatives of
378professional organizations, one of whom represents the health-
379related professions and one of whom represents the legal
380profession. Priority of consideration shall be given to the
381appointment of at least one medical or osteopathic physician, as
382defined in chapters 458 and 459, and one member in good standing
383of The Florida Bar. Priority of consideration shall also be
384given to the appointment of an individual who is receiving
385client services and whose primary interest, experience, or
386expertise lies with a major client group not represented on the
387local council at the time of the appointment. A person who is
388employed in client services by any state agency may not be
389appointed to the local council. No more than three individuals
390who are providing contracted services for clients to any state
391agency may serve on the same local council at the same time.
392Persons related to each other by consanguinity or affinity
393within the third degree may not serve on the same local council
394at the same time. All members of local councils must
395successfully complete a standardized training course for council
396members within 3 months after their appointment to a local
397council. A member may not be assigned to an investigation that
398requires access to confidential information prior to the
399completion of the training course. After he or she completes the
400required training course, a member of a local council may not be
401prevented from participating in any activity of that local
402council, including investigations and monitoring, except due to
403a conflict of interest as described in the procedures
404established by the statewide council under subsection (7).
405     (3)(a)  With respect to existing local councils, each
406member shall serve a term of 4 years. Upon expiration of a term
407and in the case of any other vacancy, the local council shall
408appoint a replacement by majority vote of the local council,
409subject to the approval of the Attorney General Governor. A
410member may serve no more than two full consecutive terms but may
411subsequently be appointed to another local council in the same
412service area.
413     (b)1.  The Attorney General Governor shall appoint the
414first four members of any newly created local council,; and
415those four members shall select the remaining members, subject
416to approval of the Attorney General Governor. If any of the
417first four members are not appointed within 60 days after a
418request is submitted to the Attorney General Governor, those
419members may be appointed by a majority vote of the statewide
420council without further action by the Attorney General Governor.
421     2.  Members shall serve for no more than two full
422consecutive terms of 4 years, except that at the time of initial
423appointment, terms shall be staggered so that approximately one-
424half of the members first appointed shall serve for terms of 4
425years and the remaining members shall serve for terms of 2
426years. Vacancies shall be filled as provided in subparagraph 1.
427     (c)  If no action is taken by the Attorney General Governor
428to approve or disapprove a replacement of a member under this
429subsection within 60 days after the local council has notified
430the Attorney General Governor of the appointment, then the
431appointment of the replacement may be considered approved by the
432Attorney General Governor.
433     (4)  Each local council shall elect a chair and a vice
434chair for a term of 1 year. A person may not serve as chair or
435vice chair for more than two consecutive terms. The chair's and
436vice chair's terms expire on September 30 of each year.
437     (5)  If a local council member fails to attend two-thirds
438of the regular local council meetings during the course of a
439year, the local council may replace the member. If a member of a
440local council violates this section or procedures adopted under
441this section, the local council may recommend to the Attorney
442General Governor that the member be removed.
443     (6)  A member of a local council shall receive no
444compensation but is entitled to be reimbursed for per diem and
445travel expenses as provided in s. 112.061. Members may be
446provided reimbursement for long-distance telephone calls if the
447calls were necessary to an investigation of an abuse or
448deprivation of constitutional or human rights or to the duties
449and responsibilities of the council.
450     (7)  A local council shall first seek to resolve a
451complaint with the appropriate local administration, agency, or
452program; any matter not resolved by the local council shall be
453referred to the statewide council. A local council shall comply
454with appeal procedures established by the statewide council. The
455duties, actions, and procedures of both new and existing local
456councils shall conform to ss. 402.164-402.167. The duties of
457each local council shall include, but are not limited to:
458     (a)  Serving as an independent third-party mechanism for
459protecting the constitutional and human rights of any client
460within a program or facility operated, funded, licensed,
461regulated, or contracted by a state agency providing client
462services in the local services area.
463     (b)  Monitoring by site visit and access to records the
464delivery and use of services, programs, or facilities operated,
465funded, licensed, regulated, or contracted by a state agency
466that provides client services, for the purpose of preventing
467abuse or deprivation of the constitutional and human rights of
468clients. A local council may conduct an unannounced site visit
469or monitoring visit that involves access to records if the visit
470is conditioned upon a complaint. A complaint may be generated by
471the council itself if information from a state agency that
472provides client services or from other sources indicates a
473situation at the program or facility that indicates possible
474abuse, or neglect, or deprivation of constitutional or and human
475rights of clients. Local councils may self-generate complaints
476based on local media reports, investigations, reports received
477from state agencies or others, monitoring visits, or other
478indications of a possible or potential problem. The local
479council shall follow uniform criteria established by the
480statewide council for the review of information and generation
481of complaints. Routine program monitoring and reviews that do
482not require an examination of records may be made unannounced.
483     (c)  Receiving, investigating, and resolving reports of
484abuse or deprivation of constitutional or and human rights by a
485state agency or contracted service provider in the local service
486area.
487     (d)  Reviewing and making recommendations regarding how a
488client's constitutional or human rights might be affected by the
489client's participation in a proposed research project, prior to
490implementation of the project.
491     (e)  Appealing to the statewide council any complaint
492unresolved at the local level. Any matter that constitutes a
493threat to the life, safety, or health of a client or is
494multiservice-area in scope shall automatically be referred to
495the statewide council. Matters that appear to be indicative of a
496multiservice-area or statewide problem shall also be referred to
497the statewide council.
498     (f)  Submitting an annual report by September 30 to the
499statewide council concerning activities, recommendations, and
500complaints reviewed or developed by the local council during the
501year.
502     (g)  Conducting meetings at least six times a year at the
503call of the chair and at other times at the call of the Attorney
504General Governor, at the call of the statewide council, or by
505written request of a majority of the members of the local
506council.
507     (8)(a)  In the performance of its duties, a local council
508shall have the same authority to access client records, state
509agency files, reports from any program or service, records of
510contractors and providers, and records from any facility
511operated, funded, licensed, regulated, or under contract with a
512state agency as specified in s. 402.165(8)(a).
513     (b)  All information obtained or produced by a local
514council that is made confidential by law, that relates to the
515identity of any client or group of clients subject to the
516protection of this section, or that relates to the identity of
517an individual who provides information to the local council
518about abuse or about alleged violations of constitutional or
519human rights, is confidential and exempt from s. 119.07(1) and
520s. 24(a), Art. I of the State Constitution.
521     (c)  Portions of meetings of a local council that relate to
522the identity of any client or group of clients subject to the
523protections of this section, that relate to the identity of an
524individual who provides information to the local council about
525abuse or about alleged violations of constitutional or human
526rights, or when testimony is provided relating to records
527otherwise made confidential by law, are exempt from s. 286.011
528and s. 24(b), Art. I of the State Constitution.
529     (d)  All records prepared by members of a local council
530that reflect a mental impression, investigative strategy, or
531theory are exempt from s. 119.07(1) and s. 24(a), Art. I of the
532State Constitution until the investigation is completed or until
533the investigation ceases to be active; however, portions of the
534record considered confidential by paragraph (c) shall remain
535confidential. For purposes of this section, an investigation is
536considered "active" while the investigation is being conducted
537by a local council with a reasonable, good faith belief that it
538may lead to a finding of abuse or of a violation of
539constitutional or human rights. An investigation does not cease
540to be active so long as the local council is proceeding with
541reasonable dispatch and there is a good faith belief that action
542may be initiated by the local council or other administrative or
543law enforcement agency.
544     (e)  Any person who knowingly and willfully discloses any
545such confidential information commits a misdemeanor of the
546second degree, punishable as provided in s. 775.082 or s.
547775.083.
548     Section 4.  Section 402.167, Florida Statutes, is amended
549to read:
550     402.167  Duties of state agencies that provide client
551services relating to the Florida Statewide Advocacy Council and
552the Florida local advocacy councils.--The secretaries or
553directors of the state agencies shall ensure the full
554cooperation and assistance of employees of their respective
555state agencies with members and staff of the statewide and local
556councils. The secretary or director of each state agency
557providing client services shall notify its contract, service,
558and treatment providers of the powers, duties, and
559responsibilities of the statewide and local councils and shall
560ensure that all contract providers, including subcontractors,
561are informed of these powers, duties, and responsibilities,
562including those relating to access to records.
563     Section 5.  This act shall take effect July 1, 2006.


CODING: Words stricken are deletions; words underlined are additions.