Florida Senate - 2012 CS for SB 460
By the Committee on Children, Families, and Elder Affairs; and
Senator Altman
586-03224-12 2012460c1
1 A bill to be entitled
2 An act relating to intellectual disabilities; amending
3 s. 39.502, F.S.; substituting the Arc of Florida for
4 the Association for Retarded Citizens for purposes of
5 certain proceedings relating to children; amending ss.
6 40.013, 86.041, 92.53, 92.54, and 92.55, F.S.;
7 substituting the term “intellectual disability” for
8 the term “mental retardation”; amending s. 320.10,
9 F.S.; substituting the Arc of Florida for the
10 Association for Retarded Citizens; amending ss.
11 383.14, 393.063, 393.11, and 394.455, F.S.;
12 substituting the term “intellectual disability” for
13 the term “mental retardation”; clarifying in s.
14 393.063, that the meaning of the terms “intellectual
15 disability” or “intellectually disabled” is the same
16 as the meaning of the terms “mental retardation,”
17 “retarded,” and “mentally retarded” for purposes of
18 matters relating to the criminal laws and court rules;
19 amending s. 400.960, F.S.; revising definitions
20 relating to intermediate care facilities for the
21 developmentally disabled to delete unused terms;
22 amending s. 408.032, F.S.; conforming a cross
23 reference; amending s. 409.908, F.S.; substituting the
24 term “intellectually disabled” for the term “mentally
25 retarded”; amending ss. 413.20, 440.49, and 499.0054,
26 F.S.; substituting the term “intellectual disability”
27 for the term “mental retardation”; amending s.
28 514.072, F.S.; conforming a cross-reference and
29 deleting obsolete provisions; amending ss. 627.6041,
30 627.6615, 641.31, 650.05, 765.204, 849.04, 914.16,
31 914.17, 916.105, and 916.106, F.S.; substituting the
32 term “intellectual disability” for the term “mental
33 retardation”; amending s. 916.107, F.S.; substituting
34 the term “intellectual disability” for the term
35 “retardation”; providing a directive to the Division
36 of Statutory Revision; amending ss. 916.301, 916.3012,
37 916.302, 916.3025, 916.303, 916.304, 918.16, 921.137,
38 941.38, 944.602, 945.025, 945.12, 945.42, 947.185,
39 984.19, 985.14, 985.145, 985.18, 985.19, 985.195, and
40 985.61, F.S.; clarifying in s. 921.137, F.S., that the
41 terms “intellectual disability” or “intellectually
42 disabled” are interchangeable with and have the same
43 meaning as the terms “mental retardation,” or
44 “retardation” and “mentally retarded,” as defined
45 before the effective date of the act; substituting the
46 term “intellectual disability” for the term “mental
47 retardation”; expressing legislative intent; providing
48 an effective date.
49
50 Be It Enacted by the Legislature of the State of Florida:
51
52 Section 1. Subsection (15) of section 39.502, Florida
53 Statutes, is amended to read:
54 39.502 Notice, process, and service.—
55 (15) A party who is identified as a person who has a with
56 mental illness or with a developmental disability must be
57 informed by the court of the availability of advocacy services
58 through the department, the Arc of Florida Association for
59 Retarded Citizens, or other appropriate mental health or
60 developmental disability advocacy groups and encouraged to seek
61 such services.
62 Section 2. Subsection (9) of section 40.013, Florida
63 Statutes, is amended to read:
64 40.013 Persons disqualified or excused from jury service.—
65 (9) Any person who is responsible for the care of a person
66 who, because of mental illness, intellectual disability mental
67 retardation, senility, or other physical or mental incapacity,
68 is incapable of caring for himself or herself shall be excused
69 from jury service upon request.
70 Section 3. Section 86.041, Florida Statutes, is amended to
71 read:
72 86.041 Actions by executors, administrators, trustees,
73 etc.—Any person interested as or through an executor,
74 administrator, trustee, guardian, or other fiduciary, creditor,
75 devisee, legatee, heir, next of kin, or cestui que trust, in the
76 administration of a trust, a guardianship, or of the estate of a
77 decedent, an infant, a mental incompetent, or insolvent may have
78 a declaration of rights or equitable or legal relations to in
79 respect thereto:
80 (1) To Ascertain any class of creditors, devisees,
81 legatees, heirs, next of kin, or others; or
82 (2) To Direct the executor, administrator, or trustee to
83 refrain from doing any particular act in his or her fiduciary
84 capacity; or
85 (3) To Determine any question relating to arising in the
86 administration of the guardianship, estate, or trust, including
87 questions of construction of wills and other writings.
88
89 For the purpose of this section, a “mental incompetent” is one
90 who, because of mental illness, intellectual disability mental
91 retardation, senility, excessive use of drugs or alcohol, or
92 other mental incapacity, is incapable of either managing his or
93 her property or caring for himself or herself, or both.
94 Section 4. Section 92.53, Florida Statutes, is amended to
95 read:
96 92.53 Videotaping the of testimony of a victim or witness
97 under age 16 or who has an intellectual disability person with
98 mental retardation.—
99 (1) On motion and hearing in camera and a finding that
100 there is a substantial likelihood that a victim or witness who
101 is under the age of 16 or who has an intellectual disability is
102 a person with mental retardation as defined in s. 393.063 would
103 suffer at least moderate emotional or mental harm due to the
104 presence of the defendant if such victim or witness the child or
105 person with mental retardation is required to testify in open
106 court, or that such victim or witness is otherwise unavailable
107 as defined in s. 90.804(1), the trial court may order the
108 videotaping of the testimony of the victim or witness in a case,
109 whether civil or criminal in nature, in which videotaped
110 testimony is to be used utilized at trial in lieu of trial
111 testimony in open court.
112 (2) The motion may be filed by:
113 (a) The victim or witness, or the victim’s or witness’s
114 attorney, parent, legal guardian, or guardian ad litem;
115 (b) A trial judge on his or her own motion;
116 (c) Any party in a civil proceeding; or
117 (d) The prosecuting attorney or the defendant, or the
118 defendant’s counsel.
119 (3) The judge shall preside, or shall appoint a special
120 master to preside, at the videotaping unless the following
121 conditions are met:
122 (a) The child or the person who has the intellectual
123 disability with mental retardation is represented by a guardian
124 ad litem or counsel;
125 (b) The representative of the victim or witness and the
126 counsel for each party stipulate that the requirement for the
127 presence of the judge or special master may be waived; and
128 (c) The court finds at a hearing on the motion that the
129 presence of a judge or special master is not necessary to
130 protect the victim or witness.
131 (4) The defendant and the defendant’s counsel must shall be
132 present at the videotaping, unless the defendant has waived this
133 right. The court may require the defendant to view the testimony
134 from outside the presence of the child or the person who has an
135 intellectual disability with mental retardation by means of a
136 two-way mirror or another similar method that ensures will
137 ensure that the defendant can observe and hear the testimony of
138 the victim or witness in person, but that the victim or witness
139 cannot hear or see the defendant. The defendant and the attorney
140 for the defendant may communicate by any appropriate private
141 method.
142 (5) Any party, or the court on its own motion, may request
143 the aid of an interpreter, as provided in s. 90.606, to aid the
144 parties in formulating methods of questioning the child or
145 person who has the intellectual disability with mental
146 retardation and in interpreting the answers of the child or
147 person during with mental retardation throughout proceedings
148 conducted under this section.
149 (6) The motion referred to in subsection (1) may be made at
150 any time with reasonable notice to each party to the cause, and
151 videotaping of testimony may be made any time after the court
152 grants the motion. The videotaped testimony is shall be
153 admissible as evidence in the trial of the cause; however, such
154 testimony is shall not be admissible in any trial or proceeding
155 in which such witness testifies by use of closed circuit
156 television pursuant to s. 92.54.
157 (7) The court shall make specific findings of fact, on the
158 record, as to the basis for its ruling under this section.
159 Section 5. Section 92.54, Florida Statutes, is amended to
160 read:
161 92.54 Use of closed circuit television in proceedings
162 involving a victim or witness victims or witnesses under the age
163 of 16 or who has an intellectual disability persons with mental
164 retardation.—
165 (1) Upon motion and hearing in camera and upon a finding
166 that there is a substantial likelihood that a victim or witness
167 under the age of 16 or who has an intellectual disability the
168 child or person with mental retardation will suffer at least
169 moderate emotional or mental harm due to the presence of the
170 defendant if such victim or witness the child or person with
171 mental retardation is required to testify in open court, or that
172 such victim or witness is unavailable as defined in s.
173 90.804(1), the trial court may order that the testimony of the a
174 child under the age of 16 or person with mental retardation who
175 is a victim or witness be taken outside of the courtroom and
176 shown by means of closed circuit television.
177 (2) The motion may be filed by the victim or witness; the
178 attorney, parent, legal guardian, or guardian ad litem of the
179 victim or witness; the prosecutor; the defendant or the
180 defendant’s counsel; or the trial judge on his or her own
181 motion.
182 (3) Only the judge, the prosecutor, the defendant, the
183 attorney for the defendant, the operators of the videotape
184 equipment, an interpreter, and some other person who, in the
185 opinion of the court, contributes to the well-being of the child
186 or the person who has an intellectual disability with mental
187 retardation and who will not be a witness in the case may be in
188 the room during the recording of the testimony.
189 (4) During the victim’s or witness’s child’s or person’s
190 with mental retardation testimony by closed circuit television,
191 the court may require the defendant to view the testimony from
192 the courtroom. In such a case, the court shall permit the
193 defendant to observe and hear the testimony of the victim or
194 witness child or person with mental retardation, but must shall
195 ensure that the victim or witness child or person with mental
196 retardation cannot hear or see the defendant. The defendant’s
197 right to assistance of counsel, which includes the right to
198 immediate and direct communication with counsel conducting
199 cross-examination, must be protected and, upon the defendant’s
200 request, such communication must shall be provided by any
201 appropriate electronic method.
202 (5) The court shall make specific findings of fact, on the
203 record, as to the basis for its ruling under this section.
204 Section 6. Section 92.55, Florida Statutes, is amended to
205 read:
206 92.55 Judicial or other proceedings involving victim or
207 witness under the age of 16 or person who has an intellectual
208 disability with mental retardation; special protections; use of
209 registered service or therapy animals.—
210 (1) Upon motion of any party, upon motion of a parent,
211 guardian, attorney, or guardian ad litem for a victim or witness
212 child under the age of 16 or person who has an intellectual
213 disability with mental retardation, or upon its own motion, the
214 court may enter any order necessary to protect such a child
215 under the age of 16 or person with mental retardation who is a
216 victim or witness in any judicial proceeding or other official
217 proceeding from severe emotional or mental harm due to the
218 presence of the defendant if the victim or witness child or
219 person with mental retardation is required to testify in open
220 court. Such orders must shall relate to the taking of testimony
221 and shall include, but are not be limited to:
222 (a) Interviewing or the taking of depositions as part of a
223 civil or criminal proceeding.
224 (b) Examination and cross-examination for the purpose of
225 qualifying as a witness or testifying in any proceeding.
226 (c) The use of testimony taken outside of the courtroom,
227 including proceedings under ss. 92.53 and 92.54.
228 (2) In ruling upon the motion, the court shall consider
229 take into consideration:
230 (a) The age of the child, the nature of the offense or act,
231 the relationship of the child to the parties in the case or to
232 the defendant in a criminal action, the degree of emotional
233 trauma that will result to the child as a consequence of the
234 defendant’s presence, and any other fact that the court deems
235 relevant; or
236 (b) The age of the person who has an intellectual
237 disability with mental retardation, the functional capacity of
238 such the person with mental retardation, the nature of the
239 offenses or act, the relationship of the person with mental
240 retardation to the parties in the case or to the defendant in a
241 criminal action, the degree of emotional trauma that will result
242 to the person with mental retardation as a consequence of the
243 defendant’s presence, and any other fact that the court deems
244 relevant.
245 (3) In addition to such other relief as is provided by law,
246 the court may enter orders limiting the number of times that a
247 child or a person who has an intellectual disability with mental
248 retardation may be interviewed, prohibiting depositions of such
249 a child or person with mental retardation, requiring the
250 submission of questions before the prior to examination of the a
251 child or person with mental retardation, setting the place and
252 conditions for interviewing the a child or person with mental
253 retardation or for conducting any other proceeding, or
254 permitting or prohibiting the attendance of any person at any
255 proceeding. The court shall enter any order necessary to protect
256 the rights of all parties, including the defendant in any
257 criminal action.
258 (4) The court may set any other conditions it finds just
259 and appropriate when on the taking the of testimony of by a
260 child, including the use of a service or therapy animal that has
261 been evaluated and registered according to national standards,
262 in any proceeding involving a sexual offense. When deciding
263 whether to permit a child to testify with the assistance of a
264 registered service or therapy animal, the court shall consider
265 take into consideration the age of the child, the interests of
266 the child, the rights of the parties to the litigation, and any
267 other relevant factor that would facilitate the testimony by the
268 child.
269 Section 7. Subsection (1) of section 320.10, Florida
270 Statutes, is amended to read:
271 320.10 Exemptions.—
272 (1) The provisions of s. 320.08 do not apply to:
273 (a) Any motor vehicle or mobile home owned by, and operated
274 exclusively for the personal use of, any member of the United
275 States Armed Forces who is not a resident of this state and who
276 is stationed in the state while in compliance with military or
277 naval orders;
278 (b) Any motor vehicle owned or operated exclusively by the
279 Federal Government;
280 (c) Any motor vehicle owned and operated exclusively for
281 the benefit of the Boys’ Clubs of America, the National Audubon
282 Society, the National Children’s Cardiac Hospital, any humane
283 society, any nationally chartered veterans’ organization that
284 maintains a state headquarters in this state, the Children’s
285 Bible Mission, the Boy Scouts of America, the Girl Scouts of
286 America, the Salvation Army, the American National Red Cross,
287 the United Service Organization, any local member unit of the
288 National Urban League which provides free services to municipal
289 and county residents who are in need of such services, the Young
290 Men’s Christian Association, the Young Men’s Hebrew Association,
291 the Camp Fire Girls’ Council, the Young Women’s Christian
292 Association, the Young Women’s Hebrew Association, any local
293 member unit of the Arc of Florida Association for Retarded
294 Citizens, the Children’s Home Society of Florida, or the
295 Goodwill Industries. A not-for-profit organization named in this
296 paragraph and its local affiliate organizations is shall be
297 eligible for the exemption if it for so long as each maintains
298 current articles of incorporation on file with the Department of
299 State and qualifies as a not-for-profit organization under s.
300 212.08;
301 (d) Any motor vehicle owned and operated by a church,
302 temple, or synagogue for exclusive use as a community service
303 van or to transport passengers without compensation to religious
304 services or for religious education;
305 (e) Any motor vehicle owned and operated by the Civil Air
306 Patrol or the United States Coast Guard Auxiliary;
307 (f) Any mobile blood bank unit when operated as a nonprofit
308 service by an organization;
309 (g) Any mobile X-ray unit or truck or bus used exclusively
310 for public health purposes;
311 (h) Any school bus owned and operated by a nonprofit
312 educational or religious corporation;
313 (i) Any vehicle used by any of the various search and
314 rescue units of the several counties for exclusive use as a
315 search and rescue vehicle; or and
316 (j) Any motor vehicle used by a community transportation
317 coordinator or a transportation operator as defined in part I of
318 chapter 427, and which is used exclusively to transport
319 transportation disadvantaged persons.
320 Section 8. Paragraph (d) of subsection (3) of section
321 383.14, Florida Statutes, is amended to read:
322 383.14 Screening for metabolic disorders, other hereditary
323 and congenital disorders, and environmental risk factors.—
324 (3) DEPARTMENT OF HEALTH; POWERS AND DUTIES.—The department
325 shall administer and provide certain services to implement the
326 provisions of this section and shall:
327 (d) Maintain a confidential registry of cases, including
328 information of importance for the purpose of followup services
329 to prevent intellectual disabilities mental retardation, to
330 correct or ameliorate physical disabilities handicaps, and for
331 epidemiologic studies, if indicated. Such registry shall be
332 exempt from the provisions of s. 119.07(1).
333
334 All provisions of this subsection must be coordinated with the
335 provisions and plans established under this chapter, chapter
336 411, and Pub. L. No. 99-457.
337 Section 9. Subsection (9) and subsections (21) through (32)
338 of section 393.063, Florida Statutes, are reordered and amended
339 to read:
340 393.063 Definitions.—For the purposes of this chapter, the
341 term:
342 (9) “Developmental disability” means a disorder or syndrome
343 that is attributable to intellectual disability retardation,
344 cerebral palsy, autism, spina bifida, or Prader-Willi syndrome;
345 that manifests before the age of 18; and that constitutes a
346 substantial handicap that can reasonably be expected to continue
347 indefinitely.
348 (22)(21) “Intermediate care facility for the
349 developmentally disabled” or “ICF/DD” means a residential
350 facility licensed and certified under pursuant to part VIII of
351 chapter 400.
352 (23)(22) “Medical/dental services” means medically
353 necessary services that which are provided or ordered for a
354 client by a person licensed under chapter 458, chapter 459, or
355 chapter 466. Such services may include, but are not limited to,
356 prescription drugs, specialized therapies, nursing supervision,
357 hospitalization, dietary services, prosthetic devices, surgery,
358 specialized equipment and supplies, adaptive equipment, and
359 other services as required to prevent or alleviate a medical or
360 dental condition.
361 (24)(23) “Personal care services” means individual
362 assistance with or supervision of essential activities of daily
363 living for self-care, including ambulation, bathing, dressing,
364 eating, grooming, and toileting, and other similar services that
365 are incidental to the care furnished and essential to the
366 health, safety, and welfare of the client if when there is no
367 one else is available to perform those services.
368 (25)(24) “Prader-Willi syndrome” means an inherited
369 condition typified by neonatal hypotonia with failure to thrive,
370 hyperphagia or an excessive drive to eat which leads to obesity
371 usually at 18 to 36 months of age, mild to moderate intellectual
372 disability mental retardation, hypogonadism, short stature, mild
373 facial dysmorphism, and a characteristic neurobehavior.
374 (26)(25) “Relative” means an individual who is connected by
375 affinity or consanguinity to the client and who is 18 years of
376 age or older.
377 (27)(26) “Resident” means a any person who has a with
378 developmental disability and resides disabilities residing at a
379 residential facility, whether or not such person is a client of
380 the agency.
381 (28)(27) “Residential facility” means a facility providing
382 room and board and personal care for persons who have with
383 developmental disabilities.
384 (29)(28) “Residential habilitation” means supervision and
385 training with the acquisition, retention, or improvement in
386 skills related to activities of daily living, such as personal
387 hygiene skills, homemaking skills, and the social and adaptive
388 skills necessary to enable the individual to reside in the
389 community.
390 (30)(29) “Residential habilitation center” means a
391 community residential facility licensed under this chapter which
392 provides habilitation services. The capacity of such a facility
393 may shall not be fewer than nine residents. After October 1,
394 1989, new residential habilitation centers may not be licensed
395 and the licensed capacity for any existing residential
396 habilitation center may not be increased.
397 (31)(30) “Respite service” means appropriate, short-term,
398 temporary care that is provided to a person who has a with
399 developmental disability in order disabilities to meet the
400 planned or emergency needs of the person or the family or other
401 direct service provider.
402 (32)(31) “Restraint” means a physical device, method, or
403 drug used to control dangerous behavior.
404 (a) A physical restraint is any manual method or physical
405 or mechanical device, material, or equipment attached or
406 adjacent to an the individual’s body so that he or she cannot
407 easily remove the restraint and which restricts freedom of
408 movement or normal access to one’s body.
409 (b) A drug used as a restraint is a medication used to
410 control the person’s behavior or to restrict his or her freedom
411 of movement and is not a standard treatment for the person’s
412 medical or psychiatric condition. Physically holding a person
413 during a procedure to forcibly administer psychotropic
414 medication is a physical restraint.
415 (c) Restraint does not include physical devices, such as
416 orthopedically prescribed appliances, surgical dressings and
417 bandages, supportive body bands, or other physical holding when
418 necessary for routine physical examinations and tests; for
419 purposes of orthopedic, surgical, or other similar medical
420 treatment; when used to provide support for the achievement of
421 functional body position or proper balance; or when used to
422 protect a person from falling out of bed.
423 (21)(32) “Intellectual disability” “Retardation” means
424 significantly subaverage general intellectual functioning
425 existing concurrently with deficits in adaptive behavior which
426 that manifests before the age of 18 and can reasonably be
427 expected to continue indefinitely. For the purposes of this
428 definition, the term:
429 (a) “Adaptive behavior” means the effectiveness or degree
430 with which an individual meets the standards of personal
431 independence and social responsibility expected of his or her
432 age, cultural group, and community.
433 (b) “Significantly subaverage general intellectual
434 functioning,” for the purpose of this definition, means
435 performance that which is two or more standard deviations from
436 the mean score on a standardized intelligence test specified in
437 the rules of the agency. “Adaptive behavior,” for the purpose of
438 this definition, means the effectiveness or degree with which an
439 individual meets the standards of personal independence and
440 social responsibility expected of his or her age, cultural
441 group, and community.
442
443 For purposes of the application of the criminal laws and
444 procedural rules of this state to matters relating to pretrial,
445 trial, sentencing, and any matters relating to the imposition
446 and execution of the death penalty, the terms “intellectual
447 disability” or “intellectually disabled” are interchangeable
448 with and have the same meaning as the terms “mental retardation”
449 or “retardation” and “mentally retarded” as defined in this
450 section before July 1, 2012.
451 Section 10. Subsection (1), paragraphs (c) and (d) of
452 subsection (2), paragraphs (b) through (d) of subsection (3),
453 paragraph (b) of subsection (4), paragraphs (b), (e), (f), and
454 (g) of subsection (5), subsection (6), paragraph (d) of
455 subsection (7), paragraph (b) of subsection (8), subsection
456 (10), and paragraph (b) of subsection (12) of section 393.11,
457 Florida Statutes, are amended to read:
458 393.11 Involuntary admission to residential services.—
459 (1) JURISDICTION.—If When a person has an intellectual
460 disability is mentally retarded and requires involuntary
461 admission to residential services provided by the agency, the
462 circuit court of the county in which the person resides has
463 shall have jurisdiction to conduct a hearing and enter an order
464 involuntarily admitting the person in order for that the person
465 to may receive the care, treatment, habilitation, and
466 rehabilitation that which the person needs. For the purpose of
467 identifying intellectual disability mental retardation,
468 diagnostic capability shall be established by the agency. Except
469 as otherwise specified, the proceedings under this section are
470 shall be governed by the Florida Rules of Civil Procedure.
471 (2) PETITION.—
472 (c) The petition shall be verified and must shall:
473 1. State the name, age, and present address of the
474 commissioners and their relationship to the person who has an
475 intellectual disability with mental retardation or autism;
476 2. State the name, age, county of residence, and present
477 address of the person who has an intellectual disability with
478 mental retardation or autism;
479 3. Allege that the commission believes that the person
480 needs involuntary residential services and specify the factual
481 information on which the belief is based;
482 4. Allege that the person lacks sufficient capacity to give
483 express and informed consent to a voluntary application for
484 services and lacks the basic survival and self-care skills to
485 provide for the person’s well-being or is likely to physically
486 injure others if allowed to remain at liberty; and
487 5. State which residential setting is the least restrictive
488 and most appropriate alternative and specify the factual
489 information on which the belief is based.
490 (d) The petition must shall be filed in the circuit court
491 of the county in which the person who has the intellectual
492 disability with mental retardation or autism resides.
493 (3) NOTICE.—
494 (b) If Whenever a motion or petition has been filed
495 pursuant to s. 916.303 to dismiss criminal charges against a
496 defendant who has an intellectual disability with retardation or
497 autism, and a petition is filed to involuntarily admit the
498 defendant to residential services under this section, the notice
499 of the filing of the petition must shall also be given to the
500 defendant’s attorney, the state attorney of the circuit from
501 which the defendant was committed, and the agency.
502 (c) The notice must shall state that a hearing shall be set
503 to inquire into the need of the person who has an intellectual
504 disability with mental retardation or autism for involuntary
505 residential services. The notice must shall also state the date
506 of the hearing on the petition.
507 (d) The notice must shall state that the individual who has
508 an intellectual disability with mental retardation or autism has
509 the right to be represented by counsel of his or her own choice
510 and that, if the person cannot afford an attorney, the court
511 shall appoint one.
512 (4) AGENCY PARTICIPATION.—
513 (b) Following examination, the agency shall file a written
514 report with the court at least not less than 10 working days
515 before the date of the hearing. The report must be served on the
516 petitioner, the person who has the intellectual disability with
517 mental retardation, and the person’s attorney at the time the
518 report is filed with the court.
519 (5) EXAMINING COMMITTEE.—
520 (b) The court shall appoint at least no fewer than three
521 disinterested experts who have demonstrated to the court an
522 expertise in the diagnosis, evaluation, and treatment of persons
523 who have intellectual disabilities with mental retardation. The
524 committee must include at least one licensed and qualified
525 physician, one licensed and qualified psychologist, and one
526 qualified professional who, at with a minimum, has of a masters
527 degree in social work, special education, or vocational
528 rehabilitation counseling, to examine the person and to testify
529 at the hearing on the involuntary admission to residential
530 services.
531 (e) The committee shall prepare a written report for the
532 court. The report must explicitly document the extent that the
533 person meets the criteria for involuntary admission. The report,
534 and expert testimony, must include, but not be limited to:
535 1. The degree of the person’s intellectual disability
536 mental retardation and whether, using diagnostic capabilities
537 established by the agency, the person is eligible for agency
538 services;
539 2. Whether, because of the person’s degree of intellectual
540 disability mental retardation, the person:
541 a. Lacks sufficient capacity to give express and informed
542 consent to a voluntary application for services pursuant to s.
543 393.065;
544 b. Lacks basic survival and self-care skills to such a
545 degree that close supervision and habilitation in a residential
546 setting is necessary and if not provided would result in a real
547 and present threat of substantial harm to the person’s well
548 being; or
549 c. Is likely to physically injure others if allowed to
550 remain at liberty.
551 3. The purpose to be served by residential care;
552 4. A recommendation on the type of residential placement
553 which would be the most appropriate and least restrictive for
554 the person; and
555 5. The appropriate care, habilitation, and treatment.
556 (f) The committee shall file the report with the court at
557 least not less than 10 working days before the date of the
558 hearing. The report must shall be served on the petitioner, the
559 person who has the intellectual disability with mental
560 retardation, the person’s attorney at the time the report is
561 filed with the court, and the agency.
562 (g) Members of the examining committee shall receive a
563 reasonable fee to be determined by the court. The fees shall are
564 to be paid from the general revenue fund of the county in which
565 the person who has the intellectual disability with mental
566 retardation resided when the petition was filed.
567 (6) COUNSEL; GUARDIAN AD LITEM.—
568 (a) The person who has the intellectual disability must
569 with mental retardation shall be represented by counsel at all
570 stages of the judicial proceeding. If In the event the person is
571 indigent and cannot afford counsel, the court shall appoint a
572 public defender at least not less than 20 working days before
573 the scheduled hearing. The person’s counsel shall have full
574 access to the records of the service provider and the agency. In
575 all cases, the attorney shall represent the rights and legal
576 interests of the person with mental retardation, regardless of
577 who initiates may initiate the proceedings or pays pay the
578 attorney’s fee.
579 (b) If the attorney, during the course of his or her
580 representation, reasonably believes that the person who has the
581 intellectual disability with mental retardation cannot
582 adequately act in his or her own interest, the attorney may seek
583 the appointment of a guardian ad litem. A prior finding of
584 incompetency is not required before a guardian ad litem is
585 appointed pursuant to this section.
586 (7) HEARING.—
587 (d) The person who has the intellectual disability must
588 with mental retardation shall be physically present throughout
589 the entire proceeding. If the person’s attorney believes that
590 the person’s presence at the hearing is not in his or her the
591 person’s best interest, the person’s presence may be waived once
592 the court has seen the person and the hearing has commenced.
593 (8) ORDER.—
594 (b) An order of involuntary admission to residential
595 services may not be entered unless the court finds that:
596 1. The person is intellectually disabled mentally retarded
597 or autistic;
598 2. Placement in a residential setting is the least
599 restrictive and most appropriate alternative to meet the
600 person’s needs; and
601 3. Because of the person’s degree of intellectual
602 disability mental retardation or autism, the person:
603 a. Lacks sufficient capacity to give express and informed
604 consent to a voluntary application for services pursuant to s.
605 393.065 and lacks basic survival and self-care skills to such a
606 degree that close supervision and habilitation in a residential
607 setting is necessary and, if not provided, would result in a
608 real and present threat of substantial harm to the person’s
609 well-being; or
610 b. Is likely to physically injure others if allowed to
611 remain at liberty.
612 (10) COMPETENCY.—
613 (a) The issue of competency is shall be separate and
614 distinct from a determination of the appropriateness of
615 involuntary admission to residential services due to
616 intellectual disability for a condition of mental retardation.
617 (b) The issue of the competency of a person who has an
618 intellectual disability with mental retardation for purposes of
619 assigning guardianship shall be determined in a separate
620 proceeding according to the procedures and requirements of
621 chapter 744. The issue of the competency of a person who has an
622 intellectual disability with mental retardation or autism for
623 purposes of determining whether the person is competent to
624 proceed in a criminal trial shall be determined in accordance
625 with chapter 916.
626 (12) APPEAL.—
627 (b) The filing of an appeal by the person who has an
628 intellectual disability stays with mental retardation shall stay
629 admission of the person into residential care. The stay remains
630 shall remain in effect during the pendency of all review
631 proceedings in Florida courts until a mandate issues.
632 Section 11. Subsection (18) of section 394.455, Florida
633 Statutes, is amended to read:
634 394.455 Definitions.—As used in this part, unless the
635 context clearly requires otherwise, the term:
636 (18) “Mental illness” means an impairment of the mental or
637 emotional processes that exercise conscious control of one’s
638 actions or of the ability to perceive or understand reality,
639 which impairment substantially interferes with the a person’s
640 ability to meet the ordinary demands of living, regardless of
641 etiology. For the purposes of this part, the term does not
642 include a retardation or developmental disability as defined in
643 chapter 393, intoxication, or conditions manifested only by
644 antisocial behavior or substance abuse impairment.
645 Section 12. Subsections (3) through (13) of section
646 400.960, Florida Statutes, are amended to read:
647 400.960 Definitions.—As used in this part, the term:
648 (3) “Autism” has the same meaning as in s. 393.063.
649 (4) “Cerebral palsy” has the same meaning as in s. 393.063.
650 (3)(5) “Client” means any person determined by the Agency
651 for Persons with Disabilities to be eligible for developmental
652 services.
653 (4)(6) “Developmentally disabled” “developmental
654 disability” has the same meaning as “developmental disability”
655 as that term is defined in s. 393.063.
656 (5)(7) “Direct service provider” means a person 18 years of
657 age or older who has direct contact with individuals who have
658 with developmental disabilities and who is unrelated to such the
659 individuals with developmental disabilities.
660 (6)(8) “Intermediate care facility for the developmentally
661 disabled” means a residential facility licensed and certified in
662 accordance with state law, and certified by the Federal
663 Government, pursuant to the Social Security Act, as a provider
664 of Medicaid services to persons who have with developmental
665 disabilities.
666 (9) “Prader-Willi syndrome” has the same meaning as in s.
667 393.063.
668 (7)(10)(a) “Restraint” means a physical device, method, or
669 drug used to control behavior.
670 (a) A physical restraint is any manual method or physical
671 or mechanical device, material, or equipment attached or
672 adjacent to the individual’s body so that he or she cannot
673 easily remove the restraint and which restricts freedom of
674 movement or normal access to one’s body.
675 (b) A drug used as a restraint is a medication used to
676 control the person’s behavior or to restrict his or her freedom
677 of movement. Physically holding a person during a procedure to
678 forcibly administer psychotropic medication is a physical
679 restraint.
680 (c) Restraint does not include physical devices, such as
681 orthopedically prescribed appliances, surgical dressings and
682 bandages, supportive body bands, or other physical holding when
683 necessary for routine physical examinations and tests; for
684 purposes of orthopedic, surgical, or other similar medical
685 treatment; when used to provide support for the achievement of
686 functional body position or proper balance; or when used to
687 protect a person from falling out of bed.
688 (11) “Retardation” has the same meaning as in s. 393.063.
689 (8)(12) “Seclusion” means the physical segregation of a
690 person in any fashion or the involuntary isolation of a person
691 in a room or area from which the person is prevented from
692 leaving. The prevention may be by physical barrier or by a staff
693 member who is acting in a manner, or who is physically situated,
694 so as to prevent the person from leaving the room or area. For
695 purposes of this part, the term does not mean isolation due to a
696 person’s medical condition or symptoms.
697 (13) “Spina bifida” has the same meaning as in s. 393.063.
698 Section 13. Subsection (12) of section 408.032, Florida
699 Statutes, is amended to read:
700 408.032 Definitions relating to Health Facility and
701 Services Development Act.—As used in ss. 408.031-408.045, the
702 term:
703 (12) “Intermediate care facility for the developmentally
704 disabled” means a residential facility licensed under part VIII
705 of chapter 400 chapter 393 and certified by the Federal
706 Government pursuant to the Social Security Act as a provider of
707 Medicaid services to persons who are mentally retarded or who
708 have a related condition.
709 Section 14. Subsection (8) of section 409.908, Florida
710 Statutes, is amended to read:
711 (8) A provider of home-based or community-based services
712 rendered pursuant to a federally approved waiver shall be
713 reimbursed based on an established or negotiated rate for each
714 service. These rates shall be established according to an
715 analysis of the expenditure history and prospective budget
716 developed by each contract provider participating in the waiver
717 program, or under any other methodology adopted by the agency
718 and approved by the Federal Government in accordance with the
719 waiver. Privately owned and operated community-based residential
720 facilities which meet agency requirements and which formerly
721 received Medicaid reimbursement for the optional intermediate
722 care facility for the intellectually disabled mentally retarded
723 service may participate in the developmental services waiver as
724 part of a home-and-community-based continuum of care for
725 Medicaid recipients who receive waiver services.
726 Section 15. Subsection (16) of section 413.20, Florida
727 Statutes, is amended to read:
728 413.20 Definitions.—As used in this part, the term:
729 (16) “Person who has a significant disability” means an
730 individual who has a disability that is a severe physical or
731 mental impairment that seriously limits one or more functional
732 capacities, such as mobility, communication, self-care, self
733 direction, interpersonal skills, work tolerance, or work skills,
734 in terms of an employment outcome; whose vocational
735 rehabilitation may be expected to require multiple vocational
736 rehabilitation services over an extended period of time; and who
737 has one or more physical or mental disabilities resulting from
738 amputation, arthritis, autism, blindness, burn injury, cancer,
739 cerebral palsy, cystic fibrosis, deafness, head injury, heart
740 disease, hemiplegia, hemophilia, respiratory or pulmonary
741 dysfunction, intellectual disability mental retardation, mental
742 illness, multiple sclerosis, muscular dystrophy, musculoskeletal
743 disorder, neurological disorder, including stroke and epilepsy,
744 paraplegia, quadriplegia, or other spinal cord condition,
745 sickle-cell anemia, specific learning disability, end-stage
746 renal disease, or another disability or a combination of
747 disabilities that is determined, after an assessment for
748 determining eligibility and vocational rehabilitation needs, to
749 cause comparable substantial functional limitation.
750 Section 16. Paragraph (a) of subsection (6) of section
751 440.49, Florida Statutes, is amended to read:
752 440.49 Limitation of liability for subsequent injury
753 through Special Disability Trust Fund.—
754 (6) EMPLOYER KNOWLEDGE, EFFECT ON REIMBURSEMENT.—
755 (a) Reimbursement is not allowed under this section unless
756 it is established that the employer knew of the preexisting
757 permanent physical impairment prior to the occurrence of the
758 subsequent injury or occupational disease, and that the
759 permanent physical impairment is one of the following:
760 1. Epilepsy.
761 2. Diabetes.
762 3. Cardiac disease.
763 4. Amputation of foot, leg, arm, or hand.
764 5. Total loss of sight of one or both eyes or a partial
765 loss of corrected vision of more than 75 percent bilaterally.
766 6. Residual disability from poliomyelitis.
767 7. Cerebral palsy.
768 8. Multiple sclerosis.
769 9. Parkinson’s disease.
770 10. Meniscectomy.
771 11. Patellectomy.
772 12. Ruptured cruciate ligament.
773 13. Hemophilia.
774 14. Chronic osteomyelitis.
775 15. Surgical or spontaneous fusion of a major weight
776 bearing joint.
777 16. Hyperinsulinism.
778 17. Muscular dystrophy.
779 18. Thrombophlebitis.
780 19. Herniated intervertebral disk.
781 20. Surgical removal of an intervertebral disk or spinal
782 fusion.
783 21. One or more back injuries or a disease process of the
784 back resulting in disability over a total of 120 or more days,
785 if substantiated by a doctor’s opinion that there was a
786 preexisting impairment to the claimant’s back.
787 22. Total deafness.
788 23. Intellectual disability if Mental retardation, provided
789 the employee’s intelligence quotient is such that she or he
790 falls within the lowest 2 percentile of the general population.
791 However, it shall not be necessary for the employer does not
792 need to know the employee’s actual intelligence quotient or
793 actual relative ranking in relation to the intelligence quotient
794 of the general population.
795 24. Any permanent physical condition that which, prior to
796 the industrial accident or occupational disease, constitutes a
797 20 percent 20-percent impairment of a member or of the body as a
798 whole.
799 25. Obesity if, provided the employee is 30 percent or more
800 over the average weight designated for her or his height and age
801 in the Table of Average Weight of Americans by Height and Age
802 prepared by the Society of Actuaries using data from the 1979
803 Build and Blood Pressure Study.
804 26. Any permanent physical impairment as provided defined
805 in s. 440.15(3) which is a result of a prior industrial accident
806 with the same employer or the employer’s parent company,
807 subsidiary, sister company, or affiliate located within the
808 geographical boundaries of this state.
809 Section 17. Paragraph (g) of subsection (1) of section
810 499.0054, Florida Statutes, is amended to read:
811 499.0054 Advertising and labeling of drugs, devices, and
812 cosmetics; exemptions.—
813 (1) It is a violation of the Florida Drug and Cosmetic Act
814 to perform or cause the performance of any of the following
815 acts:
816 (g) The advertising of any drug or device represented to
817 have any effect in any of the following conditions, disorders,
818 diseases, or processes:
819 1. Blood disorders.
820 2. Bone or joint diseases.
821 3. Kidney diseases or disorders.
822 4. Cancer.
823 5. Diabetes.
824 6. Gall bladder diseases or disorders.
825 7. Heart and vascular diseases.
826 8. High blood pressure.
827 9. Diseases or disorders of the ear or auditory apparatus,
828 including hearing loss or deafness.
829 10. Mental disease or intellectual disability mental
830 retardation.
831 11. Paralysis.
832 12. Prostate gland disorders.
833 13. Conditions of the scalp affecting hair loss.
834 14. Baldness.
835 15. Endocrine disorders.
836 16. Sexual impotence.
837 17. Tumors.
838 18. Venereal diseases.
839 19. Varicose ulcers.
840 20. Breast enlargement.
841 21. Purifying blood.
842 22. Metabolic disorders.
843 23. Immune system disorders or conditions affecting the
844 immune system.
845 24. Extension of life expectancy.
846 25. Stress and tension.
847 26. Brain stimulation or performance.
848 27. The body’s natural defense mechanisms.
849 28. Blood flow.
850 29. Depression.
851 30. Human immunodeficiency virus or acquired immune
852 deficiency syndrome or related disorders or conditions.
853 Section 18. Section 514.072, Florida Statutes, is amended
854 to read:
855 514.072 Certification of swimming instructors for people
856 who have developmental disabilities required.—Any person working
857 at a swimming pool who holds himself or herself out as a
858 swimming instructor specializing in training people who have
859 developmental disabilities, as defined in s. 393.063(10), may be
860 certified by the Dan Marino Foundation, Inc., in addition to
861 being certified under s. 514.071. The Dan Marino Foundation,
862 Inc., must develop certification requirements and a training
863 curriculum for swimming instructors for people who have
864 developmental disabilities and must submit the certification
865 requirements to the Department of Health for review by January
866 1, 2007. A person certified under s. 514.071 before July 1,
867 2007, must meet the additional certification requirements of
868 this section before January 1, 2008. A person certified under s.
869 514.071 on or after July 1, 2007, must meet the additional
870 certification requirements of this section within 6 months after
871 receiving certification under s. 514.071.
872 Section 19. Section 627.6041, Florida Statutes, is amended
873 to read:
874 627.6041 Handicapped Children with disabilities;
875 continuation of coverage.—
876 (1) A hospital or medical expense insurance policy or
877 health care services plan contract that is delivered or issued
878 for delivery in this state and that provides that coverage of a
879 dependent child terminates will terminate upon attainment of the
880 limiting age for dependent children specified in the policy or
881 contract must shall also provide in substance that attainment of
882 the limiting age does not terminate the coverage of the child
883 while the child continues to be both:
884 (a)(1) Incapable of self-sustaining employment by reason of
885 an intellectual mental retardation or physical disability.
886 handicap; and
887 (b)(2) Chiefly dependent upon the policyholder or
888 subscriber for support and maintenance.
889 (2) If a claim is denied under a policy or contract for the
890 stated reason that the child has attained the limiting age for
891 dependent children specified in the policy or contract, the
892 notice of denial must state that the policyholder has the burden
893 of establishing that the child continues to meet the criteria
894 specified in subsection subsections (1) and (2).
895 Section 20. Section 627.6615, Florida Statutes, is amended
896 to read:
897 627.6615 Handicapped Children with disabilities;
898 continuation of coverage under group policy.—
899 (1) A group health insurance policy or health care services
900 plan contract that is delivered or issued for delivery in this
901 state and that provides that coverage of a dependent child of an
902 employee or other member of the covered group terminates will
903 terminate upon attainment of the limiting age for dependent
904 children specified in the policy or contract must shall also
905 provide in substance that attainment of the limiting age does
906 not terminate the coverage of the child while the child
907 continues to be both:
908 (a)(1) Incapable of self-sustaining employment by reason of
909 an intellectual mental retardation or physical disability.
910 handicap; and
911 (b)(2) Chiefly dependent upon the employee or member for
912 support and maintenance.
913 (2) If a claim is denied under a policy or contract for the
914 stated reason that the child has attained the limiting age for
915 dependent children specified in the policy or contract, the
916 notice of denial must state that the certificateholder or
917 subscriber has the burden of establishing that the child
918 continues to meet the criteria specified in subsection
919 subsections (1) and (2).
920 Section 21. Subsection (29) of section 641.31, Florida
921 Statutes, is amended to read:
922 641.31 Health maintenance contracts.—
923 (29) If a health maintenance contract provides that
924 coverage of a dependent child of the subscriber terminates will
925 terminate upon attainment of the limiting age for dependent
926 children which is specified in the contract, the contract must
927 also provide in substance that attainment of the limiting age
928 does not terminate the coverage of the child while the child
929 continues to be both:
930 (a) Incapable of self-sustaining employment by reason of an
931 intellectual mental retardation or physical disability.
932 handicap, and
933 (b) Chiefly dependent upon the employee or member for
934 support and maintenance.
935
936 If the claim is denied under a contract for the stated reason
937 that the child has attained the limiting age for dependent
938 children specified in the contract, the notice or denial must
939 state that the subscriber has the burden of establishing that
940 the child continues to meet the criteria specified in this
941 subsection paragraphs (a) and (b).
942 Section 22. Subsection (4) of section 650.05, Florida
943 Statutes, is amended to read:
944 650.05 Plans for coverage of employees of political
945 subdivisions.—
946 (4)(a) Notwithstanding any other provision of this chapter,
947 effective January 1, 1972, all state political subdivisions
948 receiving financial aid which that provide social security
949 coverage for their employees pursuant to the provisions of this
950 chapter and the provisions of the various retirement systems as
951 authorized by law shall, in addition to other purposes, use
952 utilize all grants-in-aid and other revenue received from the
953 state to pay the employer’s share of social security cost.
954 (b) The grants-in-aid and other revenue referred to in
955 paragraph (a) specifically include, but are not limited to,
956 minimum foundation program grants to public school districts and
957 community colleges; gasoline, motor fuel, cigarette, racing, and
958 insurance premium taxes distributed to political subdivisions;
959 and amounts specifically appropriated as grants-in-aid for
960 mental health, intellectual disabilities mental retardation, and
961 mosquito control programs.
962 Section 23. Subsection (1) of section 765.204, Florida
963 Statutes, is amended to read:
964 765.204 Capacity of principal; procedure.—
965 (1) A principal is presumed to be capable of making health
966 care decisions for herself or himself unless she or he is
967 determined to be incapacitated. Incapacity may not be inferred
968 from the person’s voluntary or involuntary hospitalization for
969 mental illness or from her or his intellectual disability mental
970 retardation.
971 Section 24. Section 849.04, Florida Statutes, is amended to
972 read:
973 849.04 Permitting minors and persons under guardianship to
974 gamble.—Whoever being The proprietor, owner, or keeper of any E.
975 O., keno or pool table, or billiard table, wheel of fortune, or
976 other game of chance, kept for the purpose of betting, who
977 willfully and knowingly allows a any minor or any person who is
978 mentally incompetent or under guardianship to play at such game
979 or to bet on such game of chance; or whoever aids or abets or
980 otherwise encourages such playing or betting of any money or
981 other valuable thing upon the result of such game of chance by a
982 any minor or any person who is mentally incompetent or under
983 guardianship, commits shall be guilty of a felony of the third
984 degree, punishable as provided in s. 775.082, s. 775.083, or s.
985 775.084. For the purpose of this section, the term a “person who
986 is mentally incompetent person” means a person is one who
987 because of mental illness, intellectual disability mental
988 retardation, senility, excessive use of drugs or alcohol, or
989 other mental incapacity is incapable of either managing his or
990 her property or caring for himself or herself or both.
991 Section 25. Section 914.16, Florida Statutes, is amended to
992 read:
993 914.16 Child abuse and sexual abuse of victims under age 16
994 or who have an intellectual disability persons with mental
995 retardation; limits on interviews.—The chief judge of each
996 judicial circuit, after consultation with the state attorney and
997 the public defender for the judicial circuit, the appropriate
998 chief law enforcement officer, and any other person deemed
999 appropriate by the chief judge, shall provide by order
1000 reasonable limits on the number of interviews which that a
1001 victim of a violation of s. 794.011, s. 800.04, s. 827.03, or s.
1002 847.0135(5) who is under 16 years of age or a victim of a
1003 violation of s. 794.011, s. 800.02, s. 800.03, or s. 825.102 who
1004 has an intellectual disability is a person with mental
1005 retardation as defined in s. 393.063 must submit to for law
1006 enforcement or discovery purposes. The order shall, To the
1007 extent possible, the order must protect the victim from the
1008 psychological damage of repeated interrogations while preserving
1009 the rights of the public, the victim, and the person charged
1010 with the violation.
1011 Section 26. Section 914.17, Florida Statutes, is amended to
1012 read:
1013 914.17 Appointment of advocate for victims or witnesses who
1014 are minors or intellectually disabled persons with mental
1015 retardation.—
1016 (1) A guardian ad litem or other advocate shall be
1017 appointed by the court to represent a minor in any criminal
1018 proceeding if the minor is a victim of or witness to child abuse
1019 or neglect, or if the minor is a victim of a sexual offense, or
1020 a witness to a sexual offense committed against another minor.
1021 The court may appoint a guardian ad litem or other advocate in
1022 any other criminal proceeding in which a minor is involved as
1023 either a victim or a witness. The guardian ad litem or other
1024 advocate shall have full access to all evidence and reports
1025 introduced during the proceedings, may interview witnesses, may
1026 make recommendations to the court, shall be noticed and have the
1027 right to appear on behalf of the minor at all proceedings, and
1028 may request additional examinations by medical doctors,
1029 psychiatrists, or psychologists. It is the duty of The guardian
1030 ad litem or other advocate shall to perform the following
1031 services:
1032 (a) To Explain, in language understandable to the minor,
1033 all legal proceedings in which the minor is shall be involved;
1034 (b) To Act, as a friend of the court, to advise the judge,
1035 whenever appropriate, of the minor’s ability to understand and
1036 cooperate with any court proceeding; and
1037 (c) To Assist the minor and the minor’s family in coping
1038 with the emotional effects of the crime and subsequent criminal
1039 proceedings in which the minor is involved.
1040 (2) An advocate shall be appointed by the court to
1041 represent a person who has an intellectual disability with
1042 mental retardation as defined in s. 393.063 in any criminal
1043 proceeding if the person with mental retardation is a victim of
1044 or witness to abuse or neglect, or if the person with mental
1045 retardation is a victim of a sexual offense, or a witness to a
1046 sexual offense committed against a minor or person who has an
1047 intellectual disability with mental retardation. The court may
1048 appoint an advocate in any other criminal proceeding in which
1049 such a person with mental retardation is involved as either a
1050 victim or a witness. The advocate shall have full access to all
1051 evidence and reports introduced during the proceedings, may
1052 interview witnesses, may make recommendations to the court,
1053 shall be noticed and have the right to appear on behalf of the
1054 person with mental retardation at all proceedings, and may
1055 request additional examinations by medical doctors,
1056 psychiatrists, or psychologists. It is the duty of The advocate
1057 shall to perform the following services:
1058 (a) To Explain, in language understandable to the person
1059 with mental retardation, all legal proceedings in which the
1060 person is shall be involved;
1061 (b) To Act, as a friend of the court, to advise the judge,
1062 whenever appropriate, of the person’s person with mental
1063 retardation’s ability to understand and cooperate with any court
1064 proceedings; and
1065 (c) To Assist the person with mental retardation and the
1066 person’s family in coping with the emotional effects of the
1067 crime and subsequent criminal proceedings in which the person
1068 with mental retardation is involved.
1069 (3) Any person participating in a judicial proceeding as a
1070 guardian ad litem or other advocate is shall be presumed prima
1071 facie to be acting in good faith and in so doing is shall be
1072 immune from any liability, civil or criminal, which that
1073 otherwise might be incurred or imposed.
1074 Section 27. Subsections (1), (2), and (3) of section
1075 916.105, Florida Statutes, are amended to read:
1076 916.105 Legislative intent.—
1077 (1) It is the intent of the Legislature that the Department
1078 of Children and Family Services and the Agency for Persons with
1079 Disabilities, as appropriate, establish, locate, and maintain
1080 separate and secure forensic facilities and programs for the
1081 treatment or training of defendants who have been charged with a
1082 felony and who have been found to be incompetent to proceed due
1083 to their mental illness, intellectual disability mental
1084 retardation, or autism, or who have been acquitted of a felony
1085 by reason of insanity, and who, while still under the
1086 jurisdiction of the committing court, are committed to the
1087 department or agency under the provisions of this chapter. Such
1088 facilities must shall be sufficient to accommodate the number of
1089 defendants committed under the conditions noted above. Except
1090 for those defendants found by the department or agency to be
1091 appropriate for treatment or training in a civil facility or
1092 program pursuant to subsection (3), forensic facilities must
1093 shall be designed and administered so that ingress and egress,
1094 together with other requirements of this chapter, may be
1095 strictly controlled by staff responsible for security in order
1096 to protect the defendant, facility personnel, other clients, and
1097 citizens in adjacent communities.
1098 (2) It is the intent of the Legislature that treatment or
1099 training programs for defendants who are found to have mental
1100 illness, intellectual disability mental retardation, or autism
1101 and are involuntarily committed to the department or agency, and
1102 who are still under the jurisdiction of the committing court, be
1103 provided in a manner, subject to security requirements and other
1104 mandates of this chapter, which ensures as to ensure the rights
1105 of the defendants as provided in this chapter.
1106 (3) It is the intent of the Legislature that evaluation and
1107 services to defendants who have mental illness, intellectual
1108 disability mental retardation, or autism be provided in
1109 community settings, in community residential facilities, or in
1110 civil facilities, whenever this is a feasible alternative to
1111 treatment or training in a state forensic facility.
1112 Section 28. Subsections (1), (10), (11), (12), and (17) of
1113 section 916.106, Florida Statutes, are amended, and subsections
1114 (13) through (15) of that section are reordered and amended, to
1115 read:
1116 916.106 Definitions.—For the purposes of this chapter, the
1117 term:
1118 (1) “Agency” means the Agency for Persons with
1119 Disabilities. The agency is responsible for training forensic
1120 clients who are developmentally disabled due to intellectual
1121 disability mental retardation or autism and have been determined
1122 incompetent to proceed.
1123 (10) “Forensic facility” means a separate and secure
1124 facility established within the department or agency to serve
1125 forensic clients. A separate and secure facility means a
1126 security-grade building for the purpose of separately housing
1127 persons who have mental illness from persons who have
1128 intellectual disabilities with retardation or autism and
1129 separately housing persons who have been involuntarily committed
1130 pursuant to this chapter from nonforensic residents.
1131 (11) “Incompetent to proceed” means unable to proceed at
1132 any material stage of a criminal proceeding, which includes the
1133 shall include trial of the case, pretrial hearings involving
1134 questions of fact on which the defendant might be expected to
1135 testify, entry of a plea, proceedings for violation of probation
1136 or violation of community control, sentencing, and hearings on
1137 issues regarding a defendant’s failure to comply with court
1138 orders or conditions or other matters in which the mental
1139 competence of the defendant is necessary for a just resolution
1140 of the issues being considered.
1141 (12) “Institutional security personnel” means the staff of
1142 forensic facilities who meet or exceed the requirements of s.
1143 943.13 and who are responsible for providing security,
1144 protecting clients and personnel, enforcing rules, preventing
1145 and investigating unauthorized activities, and safeguarding the
1146 interests of residents citizens in the surrounding communities.
1147 (14)(13) “Mental illness” means an impairment of the
1148 emotional processes that exercise conscious control of one’s
1149 actions, or of the ability to perceive or understand reality,
1150 which impairment substantially interferes with the a defendant’s
1151 ability to meet the ordinary demands of living. For the purposes
1152 of this chapter, the term does not apply to defendants who have
1153 only an intellectual disability with only mental retardation or
1154 autism and does not include intoxication or conditions
1155 manifested only by antisocial behavior or substance abuse
1156 impairment.
1157 (15)(14) “Restraint” means a physical device, method, or
1158 drug used to control dangerous behavior.
1159 (a) A physical restraint is any manual method or physical
1160 or mechanical device, material, or equipment attached or
1161 adjacent to a person’s body so that he or she cannot easily
1162 remove the restraint and that restricts freedom of movement or
1163 normal access to one’s body.
1164 (b) A drug used as a restraint is a medication used to
1165 control the person’s behavior or to restrict his or her freedom
1166 of movement and not part of the standard treatment regimen of
1167 the person with a diagnosed mental illness who is a client of
1168 the department. Physically holding a person during a procedure
1169 to forcibly administer psychotropic medication is a physical
1170 restraint.
1171 (c) Restraint does not include physical devices, such as
1172 orthopedically prescribed appliances, surgical dressings and
1173 bandages, supportive body bands, or other physical holding when
1174 necessary for routine physical examinations and tests; for
1175 purposes of orthopedic, surgical, or other similar medical
1176 treatment; when used to provide support for the achievement of
1177 functional body position or proper balance; or when used to
1178 protect a person from falling out of bed.
1179 (13)(15) “Intellectual disability” “Retardation” has the
1180 same meaning as in s. 393.063.
1181 (17) “Social service professional” means a person whose
1182 minimum qualifications include a bachelor’s degree and at least
1183 2 years of social work, clinical practice, special education,
1184 habilitation, or equivalent experience working directly with
1185 persons who have intellectual disabilities with retardation,
1186 autism, or other developmental disabilities.
1187 Section 29. Paragraph (a) of subsection (1) and paragraph
1188 (a) of subsection (3) of section 916.107, Florida Statutes, are
1189 amended to read:
1190 916.107 Rights of forensic clients.—
1191 (1) RIGHT TO INDIVIDUAL DIGNITY.—
1192 (a) The policy of the state is that the individual dignity
1193 of the client shall be respected at all times and upon all
1194 occasions, including any occasion when the forensic client is
1195 detained, transported, or treated. Clients with mental illness,
1196 intellectual disability retardation, or autism and who are
1197 charged with committing felonies shall receive appropriate
1198 treatment or training. In a criminal case involving a client who
1199 has been adjudicated incompetent to proceed or not guilty by
1200 reason of insanity, a jail may be used as an emergency facility
1201 for up to 15 days following the date the department or agency
1202 receives a completed copy of the court commitment order
1203 containing all documentation required by the applicable Florida
1204 Rules of Criminal Procedure. For a forensic client who is held
1205 in a jail awaiting admission to a facility of the department or
1206 agency, evaluation and treatment or training may be provided in
1207 the jail by the local community mental health provider for
1208 mental health services, by the developmental disabilities
1209 program for persons with intellectual disability retardation or
1210 autism, the client’s physician or psychologist, or any other
1211 appropriate program until the client is transferred to a civil
1212 or forensic facility.
1213 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
1214 (a) A forensic client shall be asked to give express and
1215 informed written consent for treatment. If a client refuses such
1216 treatment as is deemed necessary and essential by the client’s
1217 multidisciplinary treatment team for the appropriate care of the
1218 client, such treatment may be provided under the following
1219 circumstances:
1220 1. In an emergency situation in which there is immediate
1221 danger to the safety of the client or others, such treatment may
1222 be provided upon the written order of a physician for a period
1223 not to exceed 48 hours, excluding weekends and legal holidays.
1224 If, after the 48-hour period, the client has not given express
1225 and informed consent to the treatment initially refused, the
1226 administrator or designee of the civil or forensic facility
1227 shall, within 48 hours, excluding weekends and legal holidays,
1228 petition the committing court or the circuit court serving the
1229 county in which the facility is located, at the option of the
1230 facility administrator or designee, for an order authorizing the
1231 continued treatment of the client. In the interim, the need for
1232 treatment shall be reviewed every 48 hours and may be continued
1233 without the consent of the client upon the continued written
1234 order of a physician who has determined that the emergency
1235 situation continues to present a danger to the safety of the
1236 client or others.
1237 2. In a situation other than an emergency situation, the
1238 administrator or designee of the facility shall petition the
1239 court for an order authorizing necessary and essential treatment
1240 for the client. The order shall allow such treatment for a
1241 period not to exceed 90 days following the date of the entry of
1242 the order. Unless the court is notified in writing that the
1243 client has provided express and informed consent in writing or
1244 that the client has been discharged by the committing court, the
1245 administrator or designee shall, before prior to the expiration
1246 of the initial 90-day order, petition the court for an order
1247 authorizing the continuation of treatment for another 90-day
1248 period. This procedure shall be repeated until the client
1249 provides consent or is discharged by the committing court.
1250 3. At the hearing on the issue of whether the court should
1251 enter an order authorizing treatment for which a client was
1252 unable to or refused to give express and informed consent, the
1253 court shall determine by clear and convincing evidence that the
1254 client has mental illness, intellectual disability retardation,
1255 or autism, that the treatment not consented to is essential to
1256 the care of the client, and that the treatment not consented to
1257 is not experimental and does not present an unreasonable risk of
1258 serious, hazardous, or irreversible side effects. In arriving at
1259 the substitute judgment decision, the court must consider at
1260 least the following factors:
1261 a. The client’s expressed preference regarding treatment;
1262 b. The probability of adverse side effects;
1263 c. The prognosis without treatment; and
1264 d. The prognosis with treatment.
1265
1266 The hearing shall be as convenient to the client as may be
1267 consistent with orderly procedure and shall be conducted in
1268 physical settings not likely to be injurious to the client’s
1269 condition. The court may appoint a general or special magistrate
1270 to preside at the hearing. The client or the client’s guardian,
1271 and the representative, shall be provided with a copy of the
1272 petition and the date, time, and location of the hearing. The
1273 client has the right to have an attorney represent him or her at
1274 the hearing, and, if the client is indigent, the court shall
1275 appoint the office of the public defender to represent the
1276 client at the hearing. The client may testify or not, as he or
1277 she chooses, and has the right to cross-examine witnesses and
1278 may present his or her own witnesses.
1279 Section 30. The Division of Statutory Revision is requested
1280 to rename part III of chapter 916, Florida Statutes, consisting
1281 of ss. 916.301-916.304, as “Forensic Services for Persons who
1282 are Intellectually Disabled or Autistic.”
1283 Section 31. Subsections (1) and (2) of section 916.301,
1284 Florida Statutes, are amended to read:
1285 916.301 Appointment of experts.—
1286 (1) All evaluations ordered by the court under this part
1287 must be conducted by qualified experts who have expertise in
1288 evaluating persons who have an intellectual disability with
1289 retardation or autism. The agency shall maintain and provide the
1290 courts annually with a list of available retardation and autism
1291 professionals who are appropriately licensed and qualified to
1292 perform evaluations of defendants alleged to be incompetent to
1293 proceed due to intellectual disability retardation or autism.
1294 The courts may use professionals from this list when appointing
1295 experts and ordering evaluations under this part.
1296 (2) If a defendant’s suspected mental condition is
1297 intellectual disability retardation or autism, the court shall
1298 appoint the following:
1299 (a) At least one, or at the request of any party, two
1300 experts to evaluate whether the defendant meets the definition
1301 of intellectual disability retardation or autism and, if so,
1302 whether the defendant is competent to proceed; and
1303 (b) A psychologist selected by the agency who is licensed
1304 or authorized by law to practice in this state, with experience
1305 in evaluating persons suspected of having an intellectual
1306 disability retardation or autism, and a social service
1307 professional, with experience in working with persons who have
1308 an intellectual disability with retardation or autism.
1309 1. The psychologist shall evaluate whether the defendant
1310 meets the definition of intellectual disability retardation or
1311 autism and, if so, whether the defendant is incompetent to
1312 proceed due to intellectual disability retardation or autism.
1313 2. The social service professional shall provide a social
1314 and developmental history of the defendant.
1315 Section 32. Subsections (1), (2), and (4) of section
1316 916.3012, Florida Statutes, are amended to read:
1317 916.3012 Mental competence to proceed.—
1318 (1) A defendant whose suspected mental condition is
1319 intellectual disability retardation or autism is incompetent to
1320 proceed within the meaning of this chapter if the defendant does
1321 not have sufficient present ability to consult with the
1322 defendant’s lawyer with a reasonable degree of rational
1323 understanding or if the defendant has no rational, as well as
1324 factual, understanding of the proceedings against the defendant.
1325 (2) Experts in intellectual disability retardation or
1326 autism appointed pursuant to s. 916.301 shall first consider
1327 whether the defendant meets the definition of intellectual
1328 disability retardation or autism and, if so, consider the
1329 factors related to the issue of whether the defendant meets the
1330 criteria for competence to proceed as described in subsection
1331 (1).
1332 (4) If the experts should find that the defendant is
1333 incompetent to proceed, the experts shall report on any
1334 recommended training for the defendant to attain competence to
1335 proceed. In considering the issues relating to training, the
1336 examining experts shall specifically report on:
1337 (a) The intellectual disability retardation or autism
1338 causing the incompetence;
1339 (b) The training appropriate for the intellectual
1340 disability retardation or autism of the defendant and an
1341 explanation of each of the possible training alternatives in
1342 order of choices;
1343 (c) The availability of acceptable training and, if
1344 training is available in the community, the expert shall so
1345 state in the report; and
1346 (d) The likelihood of the defendant’s attaining competence
1347 under the training recommended, an assessment of the probable
1348 duration of the training required to restore competence, and the
1349 probability that the defendant will attain competence to proceed
1350 in the foreseeable future.
1351 Section 33. Subsection (1), paragraphs (a) and (b) of
1352 subsection (2), and paragraph (a) of subsection (3) of section
1353 916.302, Florida Statutes, are amended to read:
1354 916.302 Involuntary commitment of defendant determined to
1355 be incompetent to proceed.—
1356 (1) CRITERIA.—Every defendant who is charged with a felony
1357 and who is adjudicated incompetent to proceed due to
1358 intellectual disability retardation or autism may be
1359 involuntarily committed for training upon a finding by the court
1360 of clear and convincing evidence that:
1361 (a) The defendant has an intellectual disability
1362 retardation or autism;
1363 (b) There is a substantial likelihood that in the near
1364 future the defendant will inflict serious bodily harm on himself
1365 or herself or another person, as evidenced by recent behavior
1366 causing, attempting, or threatening such harm;
1367 (c) All available, less restrictive alternatives, including
1368 services provided in community residential facilities or other
1369 community settings, which would offer an opportunity for
1370 improvement of the condition have been judged to be
1371 inappropriate; and
1372 (d) There is a substantial probability that the
1373 intellectual disability retardation or autism causing the
1374 defendant’s incompetence will respond to training and the
1375 defendant will regain competency to proceed in the reasonably
1376 foreseeable future.
1377 (2) ADMISSION TO A FACILITY.—
1378 (a) A defendant who has been charged with a felony and who
1379 is found to be incompetent to proceed due to intellectual
1380 disability retardation or autism, and who meets the criteria for
1381 involuntary commitment to the agency under the provisions of
1382 this chapter, shall be committed to the agency, and the agency
1383 shall retain and provide appropriate training for the defendant.
1384 Within No later than 6 months after the date of admission or at
1385 the end of any period of extended commitment or at any time the
1386 administrator or designee determines shall have determined that
1387 the defendant has regained competency to proceed or no longer
1388 meets the criteria for continued commitment, the administrator
1389 or designee shall file a report with the court pursuant to this
1390 chapter and the applicable Florida Rules of Criminal Procedure.
1391 (b) A defendant determined to be incompetent to proceed due
1392 to intellectual disability retardation or autism may be ordered
1393 by a circuit court into a forensic facility designated by the
1394 agency for defendants who have an intellectual disability mental
1395 retardation or autism.
1396 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.—
1397 (a) If a defendant has both an intellectual disability
1398 mental retardation or autism and has a mental illness,
1399 evaluations must address which condition is primarily affecting
1400 the defendant’s competency to proceed. Referral of the defendant
1401 should be made to a civil or forensic facility most appropriate
1402 to address the symptoms that are the cause of the defendant’s
1403 incompetence.
1404 Section 34. Subsection (1) of section 916.3025, Florida
1405 Statutes, is amended to read:
1406 916.3025 Jurisdiction of committing court.—
1407 (1) The committing court shall retain jurisdiction in the
1408 case of any defendant found to be incompetent to proceed due to
1409 intellectual disability retardation or autism and ordered into a
1410 forensic facility designated by the agency for defendants who
1411 have intellectual disabilities mental retardation or autism. A
1412 defendant may not be released except by the order of the
1413 committing court. An administrative hearing examiner does not
1414 have jurisdiction to determine issues of continuing commitment
1415 or release of any defendant involuntarily committed pursuant to
1416 this chapter.
1417 Section 35. Section 916.303, Florida Statutes, is amended
1418 to read:
1419 916.303 Determination of incompetency due to retardation or
1420 autism; dismissal of charges.—
1421 (1) The charges against any defendant found to be
1422 incompetent to proceed due to intellectual disability
1423 retardation or autism shall be dismissed without prejudice to
1424 the state if the defendant remains incompetent to proceed within
1425 a reasonable time after such determination, not to exceed 2
1426 years, unless the court in its order specifies its reasons for
1427 believing that the defendant will become competent to proceed
1428 within the foreseeable future and specifies the time within
1429 which the defendant is expected to become competent to proceed.
1430 The charges may be refiled by the state if the defendant is
1431 declared competent to proceed in the future.
1432 (2) If the charges are dismissed and if the defendant is
1433 considered to lack sufficient capacity to give express and
1434 informed consent to a voluntary application for services and
1435 lacks the basic survival and self-care skills to provide for his
1436 or her well-being or is likely to physically injure himself or
1437 herself or others if allowed to remain at liberty, the agency,
1438 the state attorney, or the defendant’s attorney shall apply to
1439 the committing court to involuntarily admit the defendant to
1440 residential services pursuant to s. 393.11.
1441 (3) If the defendant is considered to need involuntary
1442 residential services for reasons described in subsection (2)
1443 and, further, there is a substantial likelihood that the
1444 defendant will injure another person or continues to present a
1445 danger of escape, and all available less restrictive
1446 alternatives, including services in community residential
1447 facilities or other community settings, which would offer an
1448 opportunity for improvement of the condition have been judged to
1449 be inappropriate, the agency, the state attorney, or the
1450 defendant’s counsel may request the committing court to continue
1451 the defendant’s placement in a secure facility pursuant to this
1452 part. Any placement so continued under this subsection must be
1453 reviewed by the court at least annually at a hearing. The annual
1454 review and hearing must shall determine whether the defendant
1455 continues to meet the criteria described in this subsection and,
1456 if so, whether the defendant still requires involuntary
1457 placement in a secure facility and whether the defendant is
1458 receiving adequate care, treatment, habilitation, and
1459 rehabilitation, including psychotropic medication and behavioral
1460 programming. Notice of the annual review and review hearing
1461 shall be given to the state attorney and the defendant’s
1462 attorney. In no instance may A defendant’s placement in a secure
1463 facility may not exceed the maximum sentence for the crime for
1464 which the defendant was charged.
1465 Section 36. Subsection (1) of section 916.304, Florida
1466 Statutes, is amended to read:
1467 916.304 Conditional release.—
1468 (1) Except for an inmate currently serving a prison
1469 sentence, the committing court may order a conditional release
1470 of any defendant who has been found to be incompetent to proceed
1471 due to intellectual disability retardation or autism, based on
1472 an approved plan for providing community-based training. The
1473 committing criminal court may order a conditional release of any
1474 defendant to a civil facility in lieu of an involuntary
1475 commitment to a forensic facility pursuant to s. 916.302. Upon a
1476 recommendation that community-based training for the defendant
1477 is appropriate, a written plan for community-based training,
1478 including recommendations from qualified professionals, may be
1479 filed with the court, with copies to all parties. Such a plan
1480 may also be submitted by the defendant and filed with the court,
1481 with copies to all parties. The plan must include:
1482 (a) Special provisions for residential care and adequate
1483 supervision of the defendant, including recommended location of
1484 placement.
1485 (b) Recommendations for auxiliary services such as
1486 vocational training, psychological training, educational
1487 services, leisure services, and special medical care.
1488
1489 In its order of conditional release, the court shall specify the
1490 conditions of release based upon the release plan and shall
1491 direct the appropriate agencies or persons to submit periodic
1492 reports to the courts regarding the defendant’s compliance with
1493 the conditions of the release and progress in training, with
1494 copies to all parties.
1495 Section 37. Section 918.16, Florida Statutes, is amended to
1496 read:
1497 918.16 Sex offenses; testimony of person under age 16 or
1498 who has an intellectual disability person with mental
1499 retardation; testimony of victim; courtroom cleared;
1500 exceptions.—
1501 (1) Except as provided in subsection (2), in the trial of
1502 any case, civil or criminal, if when any person under the age of
1503 16 or any person with an intellectual disability mental
1504 retardation as defined in s. 393.063 is testifying concerning
1505 any sex offense, the court shall clear the courtroom of all
1506 persons except parties to the cause and their immediate families
1507 or guardians, attorneys and their secretaries, officers of the
1508 court, jurors, newspaper reporters or broadcasters, court
1509 reporters, and, at the request of the victim, victim or witness
1510 advocates designated by the state attorney’s office.
1511 (2) If When the victim of a sex offense is testifying
1512 concerning that offense in any civil or criminal trial, the
1513 court shall clear the courtroom of all persons upon the request
1514 of the victim, regardless of the victim’s age or mental
1515 capacity, except that parties to the cause and their immediate
1516 families or guardians, attorneys and their secretaries, officers
1517 of the court, jurors, newspaper reporters or broadcasters, court
1518 reporters, and, at the request of the victim, victim or witness
1519 advocates designated by the state attorney may remain in the
1520 courtroom.
1521 Section 38. Section 921.137, Florida Statutes, is amended
1522 to read:
1523 921.137 Imposition of the death sentence upon an
1524 intellectually disabled a defendant with mental retardation
1525 prohibited.—
1526 (1) As used in this section, the term “intellectually
1527 disabled” or “intellectual disability” “mental retardation”
1528 means significantly subaverage general intellectual functioning
1529 existing concurrently with deficits in adaptive behavior and
1530 manifested during the period from conception to age 18. The term
1531 “significantly subaverage general intellectual functioning,” for
1532 the purpose of this section, means performance that is two or
1533 more standard deviations from the mean score on a standardized
1534 intelligence test specified in the rules of the Agency for
1535 Persons with Disabilities. The term “adaptive behavior,” for the
1536 purpose of this definition, means the effectiveness or degree
1537 with which an individual meets the standards of personal
1538 independence and social responsibility expected of his or her
1539 age, cultural group, and community. The Agency for Persons with
1540 Disabilities shall adopt rules to specify the standardized
1541 intelligence tests as provided in this subsection.
1542 (2) A sentence of death may not be imposed upon a defendant
1543 convicted of a capital felony if it is determined in accordance
1544 with this section that the defendant is intellectually disabled
1545 has mental retardation.
1546 (3) A defendant charged with a capital felony who intends
1547 to raise intellectual disability mental retardation as a bar to
1548 the death sentence must give notice of such intention in
1549 accordance with the rules of court governing notices of intent
1550 to offer expert testimony regarding mental health mitigation
1551 during the penalty phase of a capital trial.
1552 (4) After a defendant who has given notice of his or her
1553 intention to raise intellectual disability mental retardation as
1554 a bar to the death sentence is convicted of a capital felony and
1555 an advisory jury has returned a recommended sentence of death,
1556 the defendant may file a motion to determine whether the
1557 defendant is intellectually disabled has mental retardation.
1558 Upon receipt of the motion, the court shall appoint two experts
1559 in the field of intellectual disabilities mental retardation who
1560 shall evaluate the defendant and report their findings to the
1561 court and all interested parties prior to the final sentencing
1562 hearing. Notwithstanding s. 921.141 or s. 921.142, the final
1563 sentencing hearing shall be held without a jury. At the final
1564 sentencing hearing, the court shall consider the findings of the
1565 court-appointed experts and consider the findings of any other
1566 expert which is offered by the state or the defense on the issue
1567 of whether the defendant has an intellectual disability mental
1568 retardation. If the court finds, by clear and convincing
1569 evidence, that the defendant has an intellectual disability
1570 mental retardation as defined in subsection (1), the court may
1571 not impose a sentence of death and shall enter a written order
1572 that sets forth with specificity the findings in support of the
1573 determination.
1574 (5) If a defendant waives his or her right to a recommended
1575 sentence by an advisory jury following a plea of guilt or nolo
1576 contendere to a capital felony and adjudication of guilt by the
1577 court, or following a jury finding of guilt of a capital felony,
1578 upon acceptance of the waiver by the court, a defendant who has
1579 given notice as required in subsection (3) may file a motion for
1580 a determination of intellectual disability mental retardation.
1581 Upon granting the motion, the court shall proceed as provided in
1582 subsection (4).
1583 (6) If, following a recommendation by an advisory jury that
1584 the defendant be sentenced to life imprisonment, the state
1585 intends to request the court to order that the defendant be
1586 sentenced to death, the state must inform the defendant of such
1587 request if the defendant has notified the court of his or her
1588 intent to raise intellectual disability mental retardation as a
1589 bar to the death sentence. After receipt of the notice from the
1590 state, the defendant may file a motion requesting a
1591 determination by the court of whether the defendant is
1592 intellectually disabled has mental retardation. Upon granting
1593 the motion, the court shall proceed as provided in subsection
1594 (4).
1595 (7) Pursuant to s. 924.07, the state may appeal, pursuant
1596 to s. 924.07, a determination of intellectual disability mental
1597 retardation made under subsection (4).
1598 (8) This section does not apply to a defendant who was
1599 sentenced to death before June 12, 2001 prior to the effective
1600 date of this act.
1601 (9) For purposes of the application of the criminal laws
1602 and procedural rules of this state to any matters relating to
1603 the imposition and execution of the death penalty, the terms
1604 “intellectual disability” or “intellectually disabled” are
1605 interchangeable with and have the same meaning as the terms
1606 “mental retardation” or “retardation” and “mentally retarded” as
1607 those terms were defined before July 1, 2012.
1608 Section 39. Paragraph (b) of subsection (2) of section
1609 941.38, Florida Statutes, is amended to read:
1610 941.38 Extradition of persons alleged to be of unsound
1611 mind.—
1612 (2) For the purpose of this section:
1613 (b) A “mentally incompetent person” is one who because of
1614 mental illness, intellectual disability mental retardation,
1615 senility, excessive use of drugs or alcohol, or other mental
1616 incapacity is incapable of either managing his or her property
1617 or caring for himself or herself or both.
1618 Section 40. Section 944.602, Florida Statutes, is amended
1619 to read:
1620 944.602 Agency notification before release of
1621 intellectually disabled mentally retarded inmates.—Before the
1622 release by parole, release by reason of gain-time allowances
1623 provided for in s. 944.291, or expiration of sentence of any
1624 inmate who has been diagnosed as having an intellectual
1625 disability mentally retarded as defined in s. 393.063, the
1626 Department of Corrections shall notify the Agency for Persons
1627 with Disabilities in order that sufficient time be allowed to
1628 notify the inmate or the inmate’s representative, in writing, at
1629 least 7 days before prior to the inmate’s release, of available
1630 community services.
1631 Section 41. Subsection (2) of section 945.025, Florida
1632 Statutes, is amended to read:
1633 945.025 Jurisdiction of department.—
1634 (2) In establishing, operating, and using utilizing these
1635 facilities, the department shall attempt, whenever possible, to
1636 avoid the placement of nondangerous offenders who have potential
1637 for rehabilitation with repeat offenders or dangerous offenders.
1638 Medical, mental, and psychological problems must shall be
1639 diagnosed and treated whenever possible. The Department of
1640 Children and Family Services and the Agency for Persons with
1641 Disabilities shall cooperate to ensure the delivery of services
1642 to persons under the custody or supervision of the department.
1643 If When it is the intent of the department intends to transfer a
1644 mentally ill or retarded prisoner who has a mental illness or
1645 intellectual disability to the Department of Children and Family
1646 Services or the Agency for Persons with Disabilities, an
1647 involuntary commitment hearing shall be held in accordance with
1648 according to the provisions of chapter 393 or chapter 394.
1649 Section 42. Subsection (5) of section 945.12, Florida
1650 Statutes, is amended to read:
1651 945.12 Transfers for rehabilitative treatment.—
1652 (5) When the department plans to release an offender who is
1653 a mentally ill or intellectually disabled retarded offender, an
1654 involuntary commitment hearing shall be held as soon as possible
1655 before prior to his or her release in accordance with, according
1656 to the provisions of chapter 393 or chapter 394.
1657 Section 43. Subsection (9) of section 945.42, Florida
1658 Statutes, is amended to read:
1659 945.42 Definitions; ss. 945.40-945.49.—As used in ss.
1660 945.40-945.49, the following terms shall have the meanings
1661 ascribed to them, unless the context shall clearly indicate
1662 otherwise:
1663 (9) “Mentally ill” means an impairment of the mental or
1664 emotional processes that, of the ability to exercise conscious
1665 control of one’s actions, or of the ability to perceive or
1666 understand reality, which impairment substantially interferes
1667 with the a person’s ability to meet the ordinary demands of
1668 living. However, regardless of etiology, except that, for the
1669 purposes of transferring transfer of an inmate to a mental
1670 health treatment facility, the term does not include a
1671 retardation or developmental disability as defined in s. 393.063
1672 chapter 393, simple intoxication, or conditions manifested only
1673 by antisocial behavior or substance abuse addiction. However, an
1674 individual who is mentally retarded or developmentally disabled
1675 may also have a mental illness.
1676 Section 44. Section 947.185, Florida Statutes, is amended
1677 to read:
1678 947.185 Application for intellectual disability mental
1679 retardation services as condition of parole.—The Parole
1680 Commission may require as a condition of parole that any inmate
1681 who has been diagnosed as having an intellectual disability
1682 mentally retarded as defined in s. 393.063 shall, upon release,
1683 apply for services from the Agency for Persons with
1684 Disabilities.
1685 Section 45. Subsection (4) of section 984.19, Florida
1686 Statutes, is amended to read:
1687 984.19 Medical screening and treatment of child;
1688 examination of parent, guardian, or person requesting custody.—
1689 (4) A judge may order that a child alleged to be or
1690 adjudicated a child in need of services be treated by a licensed
1691 health care professional. The judge may also order such child to
1692 receive mental health or intellectual disability retardation
1693 services from a psychiatrist, psychologist, or other appropriate
1694 service provider. If it is necessary to place the child in a
1695 residential facility for such services, then the procedures and
1696 criteria established in s. 394.467 or chapter 393 shall be used,
1697 as whichever is applicable. A child may be provided mental
1698 health or retardation services in emergency situations, pursuant
1699 to the procedures and criteria contained in s. 394.463(1) or
1700 chapter 393, as whichever is applicable.
1701 Section 46. Paragraph (a) of subsection (3) of section
1702 985.14, Florida Statutes, is amended to read:
1703 985.14 Intake and case management system.—
1704 (3) The intake and case management system shall facilitate
1705 consistency in the recommended placement of each child, and in
1706 the assessment, classification, and placement process, with the
1707 following purposes:
1708 (a) An individualized, multidisciplinary assessment process
1709 that identifies the priority needs of each individual child for
1710 rehabilitation and treatment and identifies any needs of the
1711 child’s parents or guardians for services that would enhance
1712 their ability to provide adequate support, guidance, and
1713 supervision for the child. This process begins shall begin with
1714 the detention risk assessment instrument and decision, includes
1715 shall include the intake preliminary screening and comprehensive
1716 assessment for substance abuse treatment services, mental health
1717 services, intellectual disability retardation services, literacy
1718 services, and other educational and treatment services as
1719 components, additional assessment of the child’s treatment
1720 needs, and classification regarding the child’s risks to the
1721 community and, for a serious or habitual delinquent child,
1722 includes shall include the assessment for placement in a serious
1723 or habitual delinquent children program under s. 985.47. The
1724 completed multidisciplinary assessment process must shall result
1725 in the predisposition report.
1726 Section 47. Paragraph (g) of subsection (1) and subsection
1727 (5) of section 985.145, Florida Statutes, are amended to read:
1728 985.145 Responsibilities of juvenile probation officer
1729 during intake; screenings and assessments.—
1730 (1) The juvenile probation officer shall serve as the
1731 primary case manager for the purpose of managing, coordinating,
1732 and monitoring the services provided to the child. Each program
1733 administrator within the Department of Children and Family
1734 Services shall cooperate with the primary case manager in
1735 carrying out the duties and responsibilities described in this
1736 section. In addition to duties specified in other sections and
1737 through departmental rules, the assigned juvenile probation
1738 officer shall be responsible for the following:
1739 (g) Comprehensive assessment.—The juvenile probation
1740 officer, pursuant to uniform procedures established by the
1741 department and upon determining that the report, affidavit, or
1742 complaint is complete, shall:
1743 1. Perform the preliminary screening and make referrals for
1744 a comprehensive assessment regarding the child’s need for
1745 substance abuse treatment services, mental health services,
1746 intellectual disability retardation services, literacy services,
1747 or other educational or treatment services.
1748 2. If When indicated by the preliminary screening, provide
1749 for a comprehensive assessment of the child and family for
1750 substance abuse problems, using community-based licensed
1751 programs with clinical expertise and experience in the
1752 assessment of substance abuse problems.
1753 3. If When indicated by the preliminary screening, provide
1754 for a comprehensive assessment of the child and family for
1755 mental health problems, using community-based psychologists,
1756 psychiatrists, or other licensed mental health professionals who
1757 have clinical expertise and experience in the assessment of
1758 mental health problems.
1759 (5) If the screening and assessment indicate that the
1760 interests of the child and the public will be best served
1761 thereby, the juvenile probation officer, with the approval of
1762 the state attorney, may refer the child for care, diagnostic,
1763 and evaluation services; substance abuse treatment services;
1764 mental health services; intellectual disability retardation
1765 services; a diversionary, arbitration, or mediation program;
1766 community service work; or other programs or treatment services
1767 voluntarily accepted by the child and the child’s parents or
1768 legal guardian. If Whenever a child volunteers to participate in
1769 any work program under this chapter or volunteers to work in a
1770 specified state, county, municipal, or community service
1771 organization supervised work program or to work for the victim,
1772 the child is shall be considered an employee of the state for
1773 the purposes of liability. In determining the child’s average
1774 weekly wage, unless otherwise determined by a specific funding
1775 program, all remuneration received from the employer is
1776 considered a gratuity, and the child is not entitled to any
1777 benefits otherwise payable under s. 440.15, regardless of
1778 whether the child may be receiving wages and remuneration from
1779 other employment with another employer and regardless of the
1780 child’s future wage-earning capacity.
1781 Section 48. Subsections (2) and (6) of section 985.18,
1782 Florida Statutes, are amended to read:
1783 985.18 Medical, psychiatric, psychological, substance
1784 abuse, and educational examination and treatment.—
1785 (2) If Whenever a child has been found to have committed a
1786 delinquent act, or before such finding with the consent of any
1787 parent or legal custodian of the child, the court may order the
1788 child to be treated by a physician. The court may also order the
1789 child to receive mental health, substance abuse, or intellectual
1790 disability retardation services from a psychiatrist,
1791 psychologist, or other appropriate service provider. If it is
1792 necessary to place the child in a residential facility for such
1793 services, the procedures and criteria established in chapter
1794 393, chapter 394, or chapter 397, as whichever is applicable,
1795 must shall be used. After a child has been adjudicated
1796 delinquent, if an educational needs assessment by the district
1797 school board or the Department of Children and Family Services
1798 has been previously conducted, the court shall order the report
1799 of such needs assessment included in the child’s court record in
1800 lieu of a new assessment. For purposes of this section, an
1801 educational needs assessment includes, but is not limited to,
1802 reports of intelligence and achievement tests, screening for
1803 learning and other disabilities and other handicaps, and
1804 screening for the need for alternative education.
1805 (6) A physician must shall be immediately notified by the
1806 person taking the child into custody or the person having
1807 custody if there are indications of physical injury or illness,
1808 or the child shall be taken to the nearest available hospital
1809 for emergency care. A child may be provided mental health,
1810 substance abuse, or intellectual disability retardation
1811 services, in emergency situations, pursuant to chapter 393,
1812 chapter 394, or chapter 397, as whichever is applicable. After a
1813 hearing, the court may order the custodial parent or parents,
1814 guardian, or other custodian, if found able to do so, to
1815 reimburse the county or state for the expense involved in such
1816 emergency treatment or care.
1817 Section 49. Paragraph (e) of subsection (1), subsections
1818 (2) through (4), and paragraph (a) of subsection (6) of section
1819 985.19, Florida Statutes, are amended to read:
1820 985.19 Incompetency in juvenile delinquency cases.—
1821 (1) If, at any time prior to or during a delinquency case,
1822 the court has reason to believe that the child named in the
1823 petition may be incompetent to proceed with the hearing, the
1824 court on its own motion may, or on the motion of the child’s
1825 attorney or state attorney must, stay all proceedings and order
1826 an evaluation of the child’s mental condition.
1827 (e) For incompetency evaluations related to intellectual
1828 disability mental retardation or autism, the court shall order
1829 the Agency for Persons with Disabilities to examine the child to
1830 determine if the child meets the definition of “intellectual
1831 disability” “retardation” or “autism” in s. 393.063 and, if so,
1832 whether the child is competent to proceed with delinquency
1833 proceedings.
1834 (2) A child who is adjudicated incompetent to proceed, and
1835 who has committed a delinquent act or violation of law, either
1836 of which would be a felony if committed by an adult, must be
1837 committed to the Department of Children and Family Services for
1838 treatment or training. A child who has been adjudicated
1839 incompetent to proceed because of age or immaturity, or for any
1840 reason other than for mental illness, intellectual disability,
1841 or retardation or autism, must not be committed to the
1842 department or to the Department of Children and Family Services
1843 for restoration-of-competency treatment or training services.
1844 For purposes of this section, a child who has committed a
1845 delinquent act or violation of law, either of which would be a
1846 misdemeanor if committed by an adult, may not be committed to
1847 the department or to the Department of Children and Family
1848 Services for restoration-of-competency treatment or training
1849 services.
1850 (3) If the court finds that a child has mental illness,
1851 intellectual disability mental retardation, or autism and
1852 adjudicates the child incompetent to proceed, the court must
1853 also determine whether the child meets the criteria for secure
1854 placement. A child may be placed in a secure facility or program
1855 if the court makes a finding by clear and convincing evidence
1856 that:
1857 (a) The child has mental illness, intellectual disability
1858 mental retardation, or autism and because of the mental illness,
1859 intellectual disability mental retardation, or autism:
1860 1. The child is manifestly incapable of surviving with the
1861 help of willing and responsible family or friends, including
1862 available alternative services, and without treatment or
1863 training the child is likely to either suffer from neglect or
1864 refuse to care for self, and such neglect or refusal poses a
1865 real and present threat of substantial harm to the child’s well
1866 being; or
1867 2. There is a substantial likelihood that in the near
1868 future the child will inflict serious bodily harm on self or
1869 others, as evidenced by recent behavior causing, attempting, or
1870 threatening such harm; and
1871 (b) All available less restrictive alternatives, including
1872 treatment or training in community residential facilities or
1873 community settings which would offer an opportunity for
1874 improvement of the child’s condition, are inappropriate.
1875 (4) A child who is determined to have mental illness,
1876 intellectual disability mental retardation, or autism, who has
1877 been adjudicated incompetent to proceed, and who meets the
1878 criteria set forth in subsection (3), must be committed to the
1879 Department of Children and Family Services and receive treatment
1880 or training in a secure facility or program that is the least
1881 restrictive alternative consistent with public safety. Any
1882 placement of a child to a secure residential program must be
1883 separate from adult forensic programs. If the child attains
1884 competency, then custody, case management, and supervision of
1885 the child shall will be transferred to the department in order
1886 to continue delinquency proceedings; however, the court retains
1887 authority to order the Department of Children and Family
1888 Services to provide continued treatment or training to maintain
1889 competency.
1890 (a) A child adjudicated incompetent due to intellectual
1891 disability mental retardation or autism may be ordered into a
1892 secure program or facility designated by the Department of
1893 Children and Family Services for children who have intellectual
1894 disabilities with mental retardation or autism.
1895 (b) A child adjudicated incompetent due to mental illness
1896 may be ordered into a secure program or facility designated by
1897 the Department of Children and Family Services for children
1898 having mental illnesses.
1899 (c) If Whenever a child is placed in a secure residential
1900 facility, the department shall will provide transportation to
1901 the secure residential facility for admission and from the
1902 secure residential facility upon discharge.
1903 (d) The purpose of the treatment or training is the
1904 restoration of the child’s competency to proceed.
1905 (e) The service provider must file a written report with
1906 the court pursuant to the applicable Florida Rules of Juvenile
1907 Procedure within not later than 6 months after the date of
1908 commitment, or at the end of any period of extended treatment or
1909 training, and at any time the Department of Children and Family
1910 Services, through its service provider, determines the child has
1911 attained competency or no longer meets the criteria for secure
1912 placement, or at such shorter intervals as ordered by the court.
1913 A copy of a written report evaluating the child’s competency
1914 must be filed by the provider with the court and with the state
1915 attorney, the child’s attorney, the department, and the
1916 Department of Children and Family Services.
1917 (6)(a) If a child is determined to have mental illness,
1918 intellectual disability mental retardation, or autism and is
1919 found to be incompetent to proceed but does not meet the
1920 criteria set forth in subsection (3), the court shall commit the
1921 child to the Department of Children and Family Services and
1922 shall order the Department of Children and Family Services to
1923 provide appropriate treatment and training in the community. The
1924 purpose of the treatment or training is the restoration of the
1925 child’s competency to proceed.
1926 Section 50. Section 985.195, Florida Statutes, is amended
1927 to read:
1928 985.195 Transfer to other treatment services.—Any child
1929 committed to the department may be transferred to intellectual
1930 disability retardation, mental health, or substance abuse
1931 treatment facilities for diagnosis and evaluation pursuant to
1932 chapter 393, chapter 394, or chapter 397, as whichever is
1933 applicable, for up to a period not to exceed 90 days.
1934 Section 51. Paragraph (b) of subsection (1) of section
1935 985.61, Florida Statutes, is amended to read:
1936 985.61 Early delinquency intervention program; criteria.—
1937 (1) The Department of Juvenile Justice shall, contingent
1938 upon specific appropriation and with the cooperation of local
1939 law enforcement agencies, the judiciary, district school board
1940 personnel, the office of the state attorney, the office of the
1941 public defender, the Department of Children and Family Services,
1942 and community service agencies that work with children,
1943 establish an early delinquency intervention program, the
1944 components of which shall include, but not be limited to:
1945 (b) Treatment modalities, including substance abuse
1946 treatment services, mental health services, and retardation
1947 services for intellectual disabilities.
1948 Section 52. It is the intent of the Legislature that this
1949 act not expand or contract the scope or application of any
1950 provision of the Florida Statutes. This act may not be construed
1951 to change the application of any provision of Florida Statutes
1952 to any person.
1953 Section 53. This act shall take effect July 1, 2012.